D.S. Tewatia, J. - (1.) The petitioners who are directly recruited clerks and have been working as clerks under the Office of the Inspector General of Prisons, Punjab at various places, have challenged the constitutionality of the Proviso to Rule 7(3) (iii) of the Punjab Jails Department State Service (Class III Executive) Rales, 1963, in so far as it provides that not more than 25 per cent of the higher posts will be filled by Warder Clerks specified in sub-clause (iii) is unconstitutional, being violative of Articles 14 and 16 of the Constitution of India. Rule 7 is in the following terms:- "7. Method of Appointment:- Appointments to posts in the Service shall be made as under:- (1) .............. (2) In the case of Assistant Superintendents/Welfare Officers:- (i) by direct appointment ; (ii) by transfer or deputation from any other service of the State or ; (iii) by promotion from amongst sub-Assistant Superintendents and Assistant Probation Officers having an experience of working on any of these posts for a minimum period of three years : Provided that not less than 75 per cent of the posts will be filled in the manner specified in sub-Clause (i) and not more than 25 per cent in the manner specified in sub-clauses (ii) and (iii) ; (3) in the case of Sub-Assistant Superintendents:- (i) by promotion from amongst the Assistant Probation Officers, Head Warders and Warders who have an experience of working on the Warder Staff for a minimum period of three years and who have passed the Matriculation or Higher Secondary or any other equivalent examination from a recognised university ; or (ii) by promotion from amongst clerks of the the Department having an experience of working on the post of Clerk for a minimum period of five years ; (iii) by promotion from Clerks/Warders of the Department who have combined experience for a minimum period of 5 years in the Clerical and Warder line (including not less than 2 years In the Warder line). Provided that not less than 50 per cent of the posts will be filled in the manner specified in sub-clause (i) and not more than 25% each in the manner specified in sub-clauses (ii) and (iii) (4) ............. Perusal of Rule 7, along with the proviso, would show that for the next higher post of Sub-Assistant Superintendents a separate promotion quota is fixed for Warders, directly recruited clerks and clerks promoted from Warders. The rule fixing two separate quotas for clerks would amount to creating further classification in the same category which has been held to be unwarranted by their Lordships in Roshan Lal Tandon Vs. Union of India, 1967 S L.R. 832 which decision has been approvingly quoted and followed in S.M. Pandit and another Vs. State of Gujarats, 1972 S.L.R. 79. The principle laid down is that personnel recruited to a given category or cadre, from different sources, loses their previous birth marks and get absorbed in the given category and from one class. Thereafter for the purpose of promotion to the next higher post, they have to be treated as one class and not as many classes as the sources from which the personnel of his category had been recruited.
(2.) In view of the authoritative decision of the apex Court, the proviso to Rule 7 (3) (iii) reserving 25 per cent promotion vacancies for the Warder Clerks has to be struck down as unconstitutional and so also the promotions effected in pursuance of the said proviso. The petition Is allowed and the respondents No. 1 and 2 are directed to reconsider within one month the matter of promotion to the post of Sub-Assistant Superintendents in the light of the observations made herein. No order as to costs. Petition allowed.;