- (1.) The short question raised in the instant petition filed under Article 226 of the Constitution is "whether the amendment dated 19.2.1988 (P- 8), made in the Punjab State Electricity Board Service of Engineers (Electrical) Recruitment Regulations, 1965 (as applicable to the Haryana State Electricity Board) [for brevity, 'the Regulations'], under Section 79 of the Electricity (Supply) Act, 1948, prescribing quota system on the basis of educational qualification violates the provisions of Articles 14 and 16 of the Constitution" ?
(2.) The petitioners have placed primary reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Punjab State Electricity Board, Patiala and another v. Ravinder Kumar Sharma and others, 1987 AIR(SC) 367 In that case common seniority list of Linemen holding the qualification of diploma and non-diploma holder was maintained. However, for further promotion to the post of Line Superintendent, separate quota on the basis of educational qualification was fixed which became subject matter of challenge, as is evident from para 9 of the judgment. According to the quota, direct recruitment from open market was 62%, diploma holder Linemen were to be considered for promotion to the extent of 5% and non-diploma holder Linemen to the extent of 33%. The quota of promotion for diploma holder Linemen to the post of Line Superintendent was further increased on 2.7.1973 from 5% to 20% and then on 9.5.1974 from 20% to 33%. The aforesaid rule was challenged on the ground that once there is one cadre of Linemen, which perform same nature of duties and there is common seniority then on the basis of educational qualification no further discrimination was permissible and it would violate provisions of Articles 14 and 16(1) of the Constitution. Accordingly, it was found that persons with diploma qualification, who were junior, could not have been permitted to steal march over the non-diploma holders on the basis of quota and the view of Hon'ble the Supreme Court based on its earlier judgment rendered in the case of Mohammad Shujat Ali v. Union of India, 1974 AIR(SC) 1631 is discernible from paras 10 and 11, which reads as under :- "10. There is no dispute, rather it is not controverted that the position of the plaintiff-respondent in the joint seniority list of Line Men in the scale of Rs. 110-330 of the Punjab State Electricity Board from 1.6.1967 to 31.8.1974 which has been filed as additional document by the Punjab State Electricity Board in C.A. No. 3341 of 1983 that the plaintiff- respondent's name was mentioned at S. No. 995 whereas names of defendants 3 to 7 appear in the said list in S. Nos. 1451, 1546, 2309, 1877 and 2279 respectively. Therefore all the defendants 3 to 7 are undoubtedly junior to the plaintiff-respondent as Line Men in the joint seniority List of Line Men comprising of both diploma holders and non-diploma holders Line Men in the same cadre. It is also clear and evident from the office Order No. 97 dated 22.10.1968 that the qualification for promotion to the post of Line Superintendent from Line Man is either holding certificate or diploma in electrical engineering from any recognised institute or having passed 1= years' course in the electrical trade of Electrician/Line Man/Wire Man from recognised Industrial Training Institute and are matriculates and have worked as Line Man for four years continuously and immediately before the promotion. The petitioner who is an Arts Graduate and has I.T.I. Certificate (in the trade of electrician 2 years' duration) and also have National Apprentice Certificate in the trade of Line Man 3 years' duration is eligible for promotion to the post of Line Superintendent as he has fulfilled all the requisite qualifications. There is no gainsaying that all the Line Men either diploma holders or non-diploma holders are performing the same kind of work and duties and they belong to the same cadre having a common/joint seniority list for promotion to the post of Line Superintendent. The orders dated 12.7.1977 being order No. 73 promoting defendants 3, 4 and 5 as well as office order No. 898 dated 17.8.1977 promoting defendants 6 and 7 on the basis of quota from diploma holders as fixed by the order of the State Electricity Board dated 9.5.1974 is wholly arbitrary, illegal, discriminatory and violative of the equality clause contained in Articles 14 and 16 of the Constitution inasmuch as it purports to promote defendants 3 to 7 who are admittedly junior to respondent 1 in service as Line Man in the State Electricity Board. It has been rightly held by following the decision in Shujat Ali's case, (1975) 1 SCR 449 at p. 480 : ( 1974 AIR(SC) 1631 at p. 1655) that the promotions of defendants 3 to 7 who are admittedly junior to the plaintiff respondent in the service as Line Man to the post of Line Superintendent are illegal, arbitrary and discriminatory and so bad. It is pertinent to refer to the observations of this Court in the said case which read as follows : "But where graduates and non-graduates are both regarded as fit and, therefore, eligible for promotion, it is difficult to see how, consistently with the claim for equal opportunity any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non-graduates in the matter of fixation of such quota. The result of fixation of quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engineer, which, according to the quota is reserved for graduate Supervisors, a non-graduate Supervisor cannot be promoted to that vacancy, even if he is senior to all other graduate Supervisors and more suitable than they. His opportunity for promotion would be limited only to vacancies available for non-graduate Supervisors. That would clearly amount to denial of equal opportunity to him." 11. This observation applies with full force to the present case, and it has been rightly held by the High Court of Punjab and Haryana that the promotion of defendants 3 to 7 who are junior to the plaintiff-respondent from Line Man to the post of Line Superintendent is wholly bad and discriminatory and directed that the petitioner be deemed to have been promoted to the post of Line Superintendent from the date the said defendants 3 to 7 had been promoted from Line Man to Line Superintendent. In our considered opinion there is no infirmity in the judgment of the High Court affirming the judgment and decree of the Courts below and we agree with the reasoning and conclusions arrived at by the Courts below. The two appeals on special leave are, therefore, dismissed with costs quantified at Rs. 5000/- to be paid by the appellant of C.A. No. 3341 of 1983 to respondent 1."
(3.) It is, thus, evident that the educational qualifications have not been considered as rationale basis and the quota on that basis has been struck down. Inspired by the judgment rendered in Ravinder Kumar Sharma's case , the petitioners have filed the instant petition challenging the amendment made in the Regulations, vide order dated 19.2.1988 (Annexure P-8).;