- (1.) Tempted by the judgment of the Hon'ble Supreme Court in Punjab State Electricity Board and another vs. Ravinder Kumar Sharma and others, 1987 AIR(SC) 367 the petitioners have filed and the present petition for quashing the decision of the respondent-Board, Annexure P/2, fixing quashing the decision of the respondent- Board, Annexure P/2, fixing quota of 67 percent and 33 percent respectively from amongst the posts of Inspectors on the basis of Diploma Holders and non Diploma Holders and non Diploma Holders for promotion to the post of Junior Engineers. It is prayed that promotion of respondent Nos. 2 to 5 be quashed and the petitioners be directed to be promoted to the post of Junior Engineers from amongst the post of Inspectors on the basis of their seniority and merit. In Ravinder Kumar Sharma's case the facts were that Ravinder Kumar filed a suit for declaration that he be deemed to have been promoted from the date when his juniors mentioned in the suit were promoted to the post of Line Superintendent. He had stated that he had joined the service in the Punjab State Electricity Board as Line Man on 25.12.1969 to and worked as apprentice Line Man from 29.12.1969 to 28.12.1970 on a fixed salary of Rs. 140/- per month whereafter he was allowed regular scale of Rs. 110-330 since the date of his joining as Line Man. The terms and conditions of the service of the Lineman as well as of the Line Superintendent were governed by the rules framed by the Punjab Government in exercise of its powers under Article 309 of the Constitution which were termed as P.W.D. (Electricity Branch) Provisional Class III (Subordinate Posts) Rules, 1952. Subsequently, the State Electricity Board came into being and the Electricity Department came under the administration of the State Electricity Board. As Line Man he had been performing his duties efficiently and honestly and he had passed B.A., I.T.I, and National Apprentice Certificate in the trade of Line Man. All the Line Men under the Board were either diploma holders or I.T.I. trained or non diploma holders and they formed and constituted one common cadre known as Line Man. The seniority list was common and the Board had been promoting officials from Line Man to Line Superintendent on pick and choose basis in consideration of the qualifications by fixing the quota between the diploma holders and non diploma holders which resulted in arbitrary discrimination between the diploma holders and non diploma holders. He contended that action of the defendants in fixing the quota between the diploma holders and non diploma holder Line Men for the purposes of promotion to the post of Line Superintendent was illegal, unconstitutional and arbitrary. The defendants contested the claim of the plaintiff submitting therein that as he was governed by the rules framed by the Government he could not challenge the action of the respondents prescribing quota for promotion in the ration as detailed therein. After the trial of the suit, the Subordinate Judge 1st Class, Patiala held that the plaintiff was entitled to promotion to the post of Line Superintendent and decreed the suit. The appeal filed by the Board was dismissed by the Additional District Judge, Patiala, and Regular Second Appeal No. 254 of 1988 was also dismissed affirming the judgment of the trial court. The matter was thereafter taken to the Supreme Court wherein it was held: The only issue raised in this appeal is whether defendant 1, that is, the Punjab State Electricity Board, is competent to discriminate between diploma holders and non-diploma holders Line Men forming the common cadre of Line Men having a common seniority list in promoting these line men on the basis of quota fixed by the order of the State Electricity Board even though the requisite qualification for promotion for Line Man to the post of Line Superintendent is either the holding of diploma or certificate for electrical engineering from a recognised institute or the non-diploma holders having passed one and half year's course in the trade of Electrician/Line Man/Wire Man from recognised Industrial Training Institute and are matriculates and have worked for four years as Line Man continuously and immediately before promotion, as has been provided by the office order No. 97/ENG/BET/G-33 dated 22.10.1968 tie relevant except of which is quoted herein below:- @INDENT2 ="For Direct Recruitment: @INDENT2 = a) Possess 3 years' certificate of diploma course in Electrical Engineering from any recognised Institute or a certificate of having passed the NCC Test conducted by the State Board of Technical Education/All India Council for Technical Education. b) Have passed action (examination ) of "the Institution of Engineering (India) Exam" with Elementary Electrical Engineering as the optional paper. @INDENT2 =For Promotion. @INDENT2 =c) (i)Have passed 1-1/2 years' course in the Electrical Trades of Electrician/Line Man/Wire Man from recognised Industrial Training Institutes and are matriculates and have worked for 4 years as a Line Man continuously and immediately before promotion. (ii) Have passed 1-1/2 years' course in the Electrical Trades of electrician/Line Man/Wire Man from recognised Industrial Training Institutes and are non-matriculates but are capable of preparing estimates, writing up measurement books accurately, keeping store accounts, etc., and have worked for 4 years as a Line Man continuously and immediately before promotion. (iii) Persons holding diploma in Electrical Engineering of 3 to 4 years duration recruited as Line Man against the reservation of 60% fixed for recruitment of persons holding certificate of 1-1/2 years' course in the Electrical Trades of Electrician/Line Man/Wire Man from recognised Industrial Training Institutes, have worked as Line Man for 3 years continuously and immediately before promotion. On promotion as Line Superintendent they will be given weight age of 2 years' service as compared to non-diploma holders, "at the time of fixation of their seniority and pay in accordance with the instruction contained in Board, Memo No. 88774/84/BET (33) L dated 29.12.1967. d(i) Matriculates Line man having a total continuous service of 9 years as at AIM and Line Man out of which they should have worked as Line Man for 4 years continuously and immediately before promotion. ii) Non-matriculates Line Man having a total continuous service of 11 years as ALM and Line Man out of which they should have worked as Line Man for four years, continuously and immediately before promotion, provided they are capable of preparing estimates, writing up measurement books accurately keeping store accounts and in addition are conversant with Consumer Accounts or possess a special experience for transmission line work. 9. The State Electricity Board by its order dated 14.5.1970 introduced the following quota for promotion to the cadre of Line Superintendents 1. Direct recruitment from the open market 62% 2. Diploma holders Line Men 5% 3. Line Men non diploma holders 33% This quota of promotion for diploma holders Line Men to the post of Line Superintendent was further increased by office order No. 244 dated 2.7.1973 by fixing the quota for promotion of diploma holders Line Men already in service of the Board from 5% to 20%. Again "by office order No. 78 dated 9.5.1974 the State electricity Board further increased the quota of promotion of diploma holders Line Men already in the service of the Board from 20% to 33%. 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 in CA 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 undoubted 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 22.10.68 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 1-1/2 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 ITI 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 gain saying that all the Line Men either diploma holder as 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 Arts. 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. 500 ( 1974 AIR(SC) 1631 at p. 1655) that the promotion 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 arty 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 he that when a vacancy arises in the post of Assistant Engineer, which, according to the quota is reserved for graduate Supervisors, a nan-graduate Superviser 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.: The writ filed by the petitioners herein was allowed by the learned Single Judge of this court on the same terms as Civil Writ Petition No. 1903 of 1987 decided on 25.1.1988. Letters Patent Appeal filed in C.W.P. No. 1903 of 1987 was considered by the Full Bench of this court and disposed of vide judgment delivered in Punjab Suite Electricity Board Patiala and another vs. Ashok Kumar Sehgal and others, 1989 4 SLR 437. The letters Patent Appeal filed in the case of the petitioner was allowed but the Civil Writ Petition was remitted back to the Single Judge for redecision in accordance with the views expressed in L.P.A. No. 402 of 1988 against the writ petitioners herein who were found to have approached this Court without any delay and by impleading private respondents as parties in the writ petition.
(2.) The learned counsel appearing for the respondents herein has submitted that in view of the later judgment of the Supreme Court in P. Murugesan and others vs. State of Tamil Nadu and others, 1993 2 SCC 340 the judgment delivered in Ravinder Kumar Sharma's case is to be deemed to have been set aside being no good law which require the dismissal of the present writ petition. The Supreme Court in P. Murugesan's case had held: The learned counsel for the respondents relied upon the decision is Punjab State Electricity Board vs. Ravinder Kumar Sharma, 1986 4 SCC 617, a decision rendered by a Bench comprising of A.P.Sen and .C.Ray, JJ. The category of linemen in the service of the Punjab State Electricity Board comprised both diploma holders and others who may be referred to as non-diploma holders. They constituted one single category having a common seniority list By means of the rules issued under the proviso to Article 309, a quota was prescribed for diploma holders, the result of which was that diploma holders who were far junior to the non diploma holders were promoted ignoring the non-diploma holders. The rule was held to be bad by the learned Subordinate Judge, Patiala. On appeal, the Additional District Judge, Patiala affirmed the judgment. It was affirmed by the High Court as well. The matter was brought to this court This court affirmed the judgment of the High Court. A perusal of the Judgment shows that the attention of the Bench was not drawn either to TN. Khosa or to other decisions. Reference was made only to the observation made between the diploma holders and non-diploma holders was discriminatory and bad. Apart from the distinction on facts between that a case and the case before us, it is evident that non-consideration of T.N.Khosa and other decisions relevant under the subject has led to the laying down of a proposition which seems to run counter to T.N.Khosa. With great respect to the learned Judges who decided that ease, we are unable to accept the broad proposition following from the case." In State of Jammu and Kashmir vs. T.N. Khosa and others, 1974 AIR(SC) 1, the Supreme Court held that classification on the basis of educational qualifications made with a view to achieve the administrative efficiency could not be said to be rest on any fortuitous circumstances and are to be held to be not unconstitutional.It was further held that though the persons appointed directly and by promotion were integrated into a common class of service, they could, for the purposes of promotion, be classified on the basis of educational qualifications. In that case, the diploma holders in Engineering had filed a petition under Article 226 of the Constitution in the High Court of Jammu and Kashmir challenging the validity of certain service rules framed by the government of Jammu and Kashmir which was framed by the Government of Jammu and Kashmir which was dismissed by the Single Judge but in appeal the Division Bench of the High court took the view that the impugned rules were violative of Articles 1 and 16 of the Constitution. The writ petitioners in that case, were serving in different branches of Engineering Service of the State of Jammu and Kashmir and had been appointed as Assistant Engineers between the year 1960 to 1966 by promotion from Subordinate engineering Service. The conditions of services were then governed by the Rules published vide order No. 1328-C-1939 which provided that promotion by transfer or promotion to the cadre of Divisional Engineer could be made only from the cadre of Assistant Engineers. Promotion in the cadre of Assistant Engineers, could in turn, be made only from the cadre of Supervisors in the Subordinate Service. Recruitment by transfer was to be made on the basis of merit, ability and the previous record of the candidate, seniority being considered only in case of equality o merit, ability and excellence of record. In 1962, the pay scales were generally revised and rule 12 of the Rules divided the Assistant Engineers into two categories, datewise. Engineers appointed prior to 1.8.1960 were placed in Grade I while those appointed subsequently were placed in Grade n, regardless of whether appointments to the post of Assistant Engineers were made directly or by promotion. The payscales were further revised in the year 1968 and under rule 10 the rules the assistant engineers were granted new pay scales but it was provided that "QB at Rs. 610/- will not be crossed by Assistant Engineers with Diploma Course." This rule was challenged by the writ petitioners in so far as it denied to them an opportunity to cross qualification bar. The Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules, 1920 came into force on 12.10.1970 which provided for appointment to the gazetted post in various branches of the Engineering Service superseding the old rules on the subject. As regards the promotion to the post of Executive Engineer, It was provided that only those Assistant Engineers would be eligible for promotion who possess the Bachelor of Degree in Engineering or holding the qualification of A.M.I.E. Sections A and B who have put in at least 8 years service in the J&K Engineering (Gazetted) Service. The writ petitioners contended that under the Rules of 1939, Assistant Engineers were entitled to be promoted to the higher cadre on the basis of their merit and record and no distinction was made between the degree holders and diploma holders for the purposes of said promotion. The distinction made by the impugned Rules between the degree holders and diploma holders was alleged to be arbitrary and capricious because according to them academic and technical qualifications could be germane only at the time of recruitment. For the purposes of promotion, efficiency and experience alone should be taken into consideration. It was further contended that once the government appoints a candidate, with different academic of technical qualification to the same cadre having the same pay scales and similar duties, such candidates would form one class and they would not be further classified for the purposes of promotion on the basis of their educational qualifications. The supreme Court dealt it alongwith the law on the subject and held: "Since the constitutional code of equality and equal opportunity is a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class, a classification of employees can therefore be made for first identifying and then distinguishing members of one class from those of another. "37. Classification, however, is fraught with the danger that it may produce artificial in equalities and therefore, the right to classify is hedged in with salient restraints; or else, the guarantee of equality will be sub-merged in class legislation masguerading as laws meant to govern well marked classes characterized by different and district attainments. Classification, therefore, must by truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bar a just and rational relation to the object sought to be achieved. 38. Judicial scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extend to embarking Upon a nice or matermatical evaluation of the basis of classification, for were such an inquiry permissible it would be open to the courts to substitute their own judgment for that of the legislature or the rule-making authority on the need to classify or the desirability of achieving a particular object. 39. Judged from this point of view, it seems to us impossible to accept the respondents' submission that the classification "of Assistant Engineers into Degree-holders and diploma-holders rests on any unreal, or unreasonable basis. The classification, according to the appellant, was made with the view achieving administrative efficiency in the engineering services. If this be the object, the classification is clearly correlated to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment. This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. What is relevant is that the object to be achieved there is not a mere pretence for an indiscriminate imposition of inequalities and the classification cannot be characterized as arbitrary or absurd. That is the far these that judicial scrutiny can extend. 40. On the facts the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstances and one 1 has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. The provision in the 1939 rules restricting direct recruitment of Assistant Engineers to Engineering graduates, the dearth of graduates in times past and their copious flow in times present are all matters which can legitimately enter the judgment of the rule-making authority. In the light of these facts, that judgment cannot be assailed as capacious on fanciful. Efficiency which comes in the trial of a higher mental equipment can reasonably be attempted to be achieved by restricting promotional opportunity to those possessing higher educational qualifications and we are concerned with the reasonableness of the classification not with the precise accuracy of the decision to classify nor with the question whether tests have long since been discarded. In fact American decisions have gone as far as saying that classification would offend against the 14th Amendment of the American Constitution only if it is "purely arbitrary, oppressive or capricious" Joseph Radice vs. People of the State of New York, 1923 68 LawEd 690, 695; American Sugar Ref. Co. vs. Louisiana (1900) 45 Law Ed. 102, 103 and he inequality produced in order to encounter the challenge of the constitution must be" actually and palpably unreasonable and arbitrary" Arkansas Natural Gas Co. vs. Rail road Commission (1923) 67 Law Ed. 705, 710. We need not go that far as the differences between the two classes-graduates and diploma-holders-furnish a reasonable basis for separate treatment and bear a just relation to the purpose of the impugned provision. 40.A Educational qualifications have been recognised by this Court as a safe criterion for determining the validity of classification. In "State of Mysore vs. P. Nara Singh Rao, 1968 AIR(SC) 349 where the cadre of Tracers was reorganized into two, one consisting of matriculate Tracers with higher scale of pay and the other of non-matriculates in a lower scale, it was held that Articles 14 and 16 do not exclude the laying down of selective tests nor do they preclude the Government from laying down qualifications for the post in question. Therefore, it was open to the Government to give preference to candidates having higher educational qualifications In Ganga Ram vs. Union of India, 1970 AIR(SC) 2178 it was observed that :- "The State which encounters diverse problems arising from a variety of circumstances is entitled to lay down conditions of efficiency and other qualifications for securing the best service for being eligible for promotion in its different departments." In the Union of India vs. Dr. (Mrs.) S.B.Kohli, 1971 AIR(SC) 811 a Central Health Service Rule requiring that a professor in Orthopaedics must have a post-graduate degree in the particular speciality was upheld on the ground that the classification made on the basis of such a requirement was not "without reference to the objectives sought to be achieved and there can be no question of discrimination, "The arguments that a degree qualification was not the only criterion of suitability was answered laconically as "strange." 41. Under the Schedule to the 1970 rules a degree qualification is prescribed as a condition for promotion to the post of an Executive Engineer from the cadre of Assistant Engineers. But there is no rule requiring a similar qualification for promotion to the post of Superintending Engineer which is next higher to the post of Executive Engineer or for promotion to the apex post of the Chief Engineer. The schedule provides that recruitment to these two categories of posts shall be made by promotion from amongst persons in cadres next below, who possess experience for a stated number of years. This circumstances is pressed into service by the respondents in support of their plea that the whole basis of classification is unreal and that the true object could not be the attainment of higher administrative efficiency. If it was thought necessary to prescribe a degree qualification in order to achieve efficiency in the post of Executive Engineers, ex-hypothesi it should have been equally imperative, if not more to provide for a similar condition regard to promotion to higher posts-thus runs the argument." The Supreme Court further held:- "We are therefore, of the opinion that though persons appointed directly and by "Promotion were integrated into a common class of Assistant Engineers they could for purposes of promotion to the cadre of Executive Engineers be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate Articles 14 and 16 of the Constitution and must be upheld. But we hope that this judgment will not be construed as a character for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good government and excellence and equality are not friendly bed-follows. A pragmatic approach has, therefore, to be adopted in order to harmonize tie requirements of public services with the aspersions of public servants. But let us not evolve, through impercoptible extensions, a theory of classification which may somewhat, perhaps sub-merge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment. What after all is the operational residue of equality and equal opportunity."
(3.) The Apex Court in P. Murugesan's specifically referred to T.N. Khosa's case and came to the conclusion that "non consideration of T.N. Khosa's case and other decisions relevant on the subject has lead to the to the laying down of proposition which seems to run counter to T.N. Khosa's case. With respect to the learned Judges who decided that case, we are unable to accept the broad proposition flowing from the case." It implies, therefore, that without using harsh words in their judgment, the Apex Court in P. Murugesan's case held that the law laid down in Ravinder Kumar Sharma's case was no good law in the presence of the law laid down in T.N. Khosa's case and other cases.;