State of Gujarat v. C. G. Desai and Others

Judgment

CivIL APPELLATE JURISDICTION: Civil Appeal No. 2170 of 1970 .. Appeal by special leave from the judgment and order dated 1/2-5-69 of the Gujarat High Court at Ahmedabad in Special Civil Application No. 1221 of 1968. M. C. Bhandare and S. P. Nayor, for the appellant. Y. S. Chita/e, V. N. Ganpule and P. C. Kapur, for the respondents, The Judgment of the Court was delivered by SARKARIA, J.-This appeal by special leave by the State is directed against the judgment and order, dated November·24, 1970, of the High Court of Gujarat allowing a writ petition of (I) C. G. Desai·; (2) B. L. Joshi and (3) H. N. Shah filed under Article 226 of the Constitution. The material facts are not in dispute and may now be stated : Respondent No. I herein (original petitioner No. 1) was officiating as Deputy Engineer since May 16, 1955, in the P.W.D. Department of the then State of Bombay and he continued in service as such until on December 3, 1959, he was selected and appointed as a result of the competitive examination held by the Public Service Commission, to a post in B.S.E. Class II Service.

Under the Engineering Service Rules, 1960 (hereinafter called 1960 Rules), a direct recruit is required to undergo training for a period not exccedin~ one year and thereafter to work on probation as in-charge of a Sub-Division for a further period of one year. Since Respondent No. I had already worked as officiating GUJARAT v. c. G: DESAI (Sarkaria,J.) Deputy Engineer, the initial period of one yeai's training in his case was dispensed with and he was directly pfaced in-charge of a Sub-Division. On completion of his two years' probation he was confirmed as Deputy Engineer in Class II with effect from December 3, 1961. Sometime in June, 1961; a Committee appointed by the State Government prepared a select-list of Deputy Engineers for promotion as officiating Executive Engineers; but the case of Respondent No. 1 was not considered for the reason that he had not put in 7 years (reduced to 6 years in 1961) service requisite under Rule 7(ii) for such promotion (hereinafter, for short, called· 'eligibility service').

The Government's stand was that in the case of Deputy Engineers directly recruited through a competitive examination held by the .Public Service Commission, service, if any, rendered by them as officiating Deputy Engineers prior to their appointment to Class II (hereafter called 'pre-selection service') could not be taken into account in computing their eligibility service. The case of Respondent No. 1 herein was that this stand of the Government was wrong and, under the relevant Rules his pre-selection service (from 16-5-1955 to 2-12-1959) as officiating Deputy Engineer had to be tacked on to his post-selection service for calculating the requisite period of his eligibility service. When the next select-list was prepared in the year 1963, Respondent No. 1 was included in that list and, in_ consequence, promoted as officiating Executive Engineer. Since then he has been working as such in the promoted rank. Respondents Nos. 2 and 3. herein (original petitioners Nos. 2 and 3) were promoted as Deputy Engineers on July 8, 1957, and September 28, 1957, respectively •.

They continued to work in that capacity till December 3, 1959, when they, too like Respondent No. 1 were directly recruited as Deputy Engineers in Class II Service as a result of the competitive examination held by the Public Service Commission. On completion of their probationary period of two years, they were confirmed as Deputy Engineers on December 3, 1961. In their case, also, the Government did not count their pre-selection service from July 8, 1957 to December 3, 19!'.'.9 for computing their eligibility service, for further promotion; and, in consequence, they were also not considered eligible for selection at the time of the preparation of the select-lists of 1961, 1963 and for the subsequent years upto 1966.

The Respondents (then petitioners) prayed for a writ of mandamus or any other appropriate writ or order directing the State Government to determine and settle their seniority in accordance with tlie provisions of rule 8(il and (ill) · of the Government Resolution_ dated April 29, 1960. · The main ground taken in the petition before the High Court, was, that the action of the Government in excluding from computation the service rendered by the Respondents as officiating Deputy Engineers prior to their selection as Deputy Engineers Class II Service, was violative of Article 16 of the Constitution of India.

The contention was th!'t the rule of eligibility for promotion had not been uniformly applied to all Deputy Engineers inasmuch as in the case of' persons who were recruited to Class II by promotion, their pre-selection service as Officiating or Temporary Deputy Engineers was computed towards their eligibility service but the same treatment was denied to Deputy Engineers directly recruited. ( 1974] 2 S.C.R. In the counter filed on behalf of the State, i( was averred that this distinction between the direct recruits and promotees in computing their · eligibility service for further promotion was observed as a matter of deliberate policy. ,It was added that at the time of the preparation of the select list of Deputy Engineers fit to be promoted as Executive Engineers in 1965, the claims of officiating Deputy Engineers appointed subsequent to 1-11-1956, were riot considered; while the claims of directly recruited Deputy Engineers though appointed after November l;

1956, were so conslc!ered because of the special provision for the latter category of Deputy Engineers as per Government Resolution, dated 29th April, 1960. The Government therefore, felt that as the direct recruits were getting special treatment because of being direct recruits, they . should not be allowed a further· advantage of counting, for the purpose r I of further promotion, their pre-selection service towards the period of their eligibility service. The High Court found that the. differentiation in question made by the Government in· the application of the Rules, had no reasonable nexus with the object of promotion; and the action of the Government was therefore clearly discriminatory and amounted to a denial of equal opportuuity to directly recruited Deputy Engineers like petitioners Nos. 1 to 3.

In the result, the High Court allowed the application of the present Respondents 1 to 3 and issued a writ of mandamus directing that their case "for_ promotion as officiating Executive Engineers shall . be considered on· the basis that the pre-selection service rendered by them as officiating Deputy. Engineers prior. to their direct recruitment as .Deputy. Engineers: was liable to be taken into account in counting the minimum period of seven years service requisite for promotion as officiating Executive E~g!neers.'' · In' order to appreciate the controversy, if is necessary to notice briefly I the history' of these Engineering Services and the relevant rules which are appendages to various Government ·Resolution passed from time to ·time:

Originally, the Government of Bombay in the Public Works Department passed a Resolution on March 22, 1937, in pursuance of which Bombay Engineering Service consisting of Class I and Class II was con- . stituted. · The posts of Chief Engineer, Superintending Engineer and Executive Engineer were placed in Class I, while those of Deputy Engineers were put in Class II.· The recruitment to both Class I and Class II was partly. by direct recruitment and partly by promotion from the lower ranks. In 1939, further rules were framed under which recruit- , ment to Class II Service was to be made either : (a) by nomination under rule 11 under ·the· guarantee given to the College of Engineering, Poona or (b) by promotion from the : r (i) Subordinate Engineering Service; (ii) . Permanent and Temporary Supervisors and (iii) Temporary Engineers appointed on annual sanction. I GUJARAT v. c. G. DESAI (Sarkaria, !.)

On the 27th May 1947, the Government of Bombay withdrew its guarantee of certain appointments given to the students of the Engineering College, Poona; and thereafter, appointed a Committee (known as Gurjar Committee) to examine the question of recruitment to the Engineering Services and allied matters. In the meantime, the Government of Bombay made direct recruitment to Class I and Class II Service through competitive examination held by the Public Service Commission. Though the Committee made.its reco=endations in 1951, yet this provisional arrangement appears to have continued upto April 29, 1960, on which date, the Government of Bombay in the Public Works Department passed a Resoltifion delineating the principles of recruitment to the ·Bombay 1 Service of Engineers, Class I and Class II.

Shortly, thereafter the Bombay State was bifurcated; but the 1960 Rules continue to be applicabfe to the Engineering Services of the new State of Gujarat, to which the Respondents herein, were allotted. By. the Resolution of 1960, the existing Class I and Class. II Services were continued. The appointments to both these Services are to be by direct recruitment through competitive examination held by the Public: Service Commission and also by promotion in the ratio of 7 5 : 25. As per rule 2, the candidates appointed from either service have to be on probation for a period of two years; in the first instance as trainees for a period not exceeding one year, and then in a probationary capacity, in-charge of a Sub-Division for one year more. On satisfactory completion of the period of probation, the candidates recruited from both the Services are confirmed as Deputy Engineers in the cadre of Class II or as Assi_stant Engineers in Class _I, as the case may be.

The provisions of 1960 Rules material for our purpose, are to be found. in Rules 6, 7 and 8, which read thus : "6(i) . (ii) For alisorption into Class I, a Class II Officer must be in the permanent Bombay Service of Engineers Class· II. cadre, should have at least 15 years service to his credit in Class II in temporary and permanent capacitfes, and should be holding an officiating divisional rank, at the time of such absorption. On such absorption, the Class II Officers. shall . be confirmed as Executive Engineers .. (emphasis supplied) (iii) 7 (i) Since the percentages in the superior posts of direct Class I recruits and promotees from Class Ifis to be about 75 and 25, the number of promotions from Class II in any year . would be about one-third of the_ number of directly recruited Assistant Engineers confirmed as Executive Engineers during that year. Recruitments in the past, have, however been erratic and insufficient .... to Class I. In order to deal with such situations; the following rules shall be supplemental and exceptional to those in paragraph 6 above :

[ 1974 J 2 s.c.a. (ii) As far as possible promotions as Officiating Executive Engineers shall be so made that the promotee under consideration from Class II has to his credit at least 6 years longer service than a promotee nnder consideration from Class 1, subject as far as practicable, to the condition that a Class I Officer shall not hold a divisional rank at less than 4, and, a Class II Officer at less than 7 years' .ervice. (emphasis supplied) Subject to availabilities, and the above criteria, an attempt should be made to maintain the percentages, stated in paragraph 6(i) above, ,between direct Class I and promoted Class lI Officers in the total of permanent plus officiating superior posts. (iii) _imd (iv) 8(i)

The Sub-Divisional Posts in the Department arc at present, manned by direct recruits to Bombay Service of Engineers Class II Cadre, Deputy Engineers confirmed from subordinate service of Engineers, .the temporary Deputy Engineers recruited by the Bombay Public Service Commission, Officiating Engineers and similar other categories. These various categories are being compiled into two lists only, (i) Bombay Service of Engineers Class II cadre of permanent Deputy Engineers and a List of officiating Deputy Engineers .. c , (ii) All direct recruitment of temporary Deputy Engineers have been stopped, further officiating vacancies will be manned from the rank of the subordinate Service of En&ineers .. ..... '' The question that falls for decision is :

Whether the action of the State Government in treating "differently" the. promotees and direct recruits in Class ll, for the purpose of computing the period of their eligibility service requisite for promotion as Officiating Execµtive Engineers, violates the constitutional guarantee of equal treatment enshrined in Article 16 of the Constitution ? Mr. Bhandare, learned Counsel for the appellant has in the course of his elaborate arguments stressed these points : ( 1) The two channels of promotion of direct recruits and promotees are separate and there would be no violation of Article 16, if these two classes continue to be treated differently; (2) It would be open to the Government to lay down and accept different conditions for these two classes in the matter of their further promotion to Class I Service; (3)

Since all the direct recruits constitute one class, it is not permissible to the Government to treat the members of the same class differently and to make a distinction in the matter of their promotion by taking into account the pre-selection service of an officer when he was not a direct recruit in Class II. To do so, would be to give an undue advantage to a GUJAlljAT v. c. o>DESAl,(Sarkaria,J.) .direct .recruit !ith pre-selection se~vic~ over his colleagues who 'did not have such pre-selection service to their credit. . Learned. Counsel further ur~Cd that there existed a ration.al .basis for this classification and differential ·creatment of direct recruits · and promotees in the matter of their 'Promotion to Class I. Reliance has· . been placed on two decisioQs of tb1s .Court in Prabhakar Yahwant loshl and Ors"v. The State of Maharashtra and Ors,(I) and Ga111a Ram and Ors. v. Union .of India and. Ors.('). We shall presently examine the effect of those decisions: Mr. Chitley, learned C,ounsel for the respondents maintamed, in reply, that .. rule.7(iQ d.oes not·perlQit disc~ation between·promo- . tees and dtrect recrwts m the njatter of. computing the seven years' serviee as :Deputy '.Engineer requisite for further promotion as Officiating Executive Engineer.

The point sought to be made otit is that if this . rule is corrcctl,Y interpret¢<! and uniformJy applied, then direct recruits cannot be dented the advantage of tacking their 'pre-selection' service, · if any,. to.their 'post-selection' sei:viccin Class II. ! ·Aft~~ nearing the learned CO~! on bothJsides, we tbirik th~t the .. . contentions of Mr. Bhandare·must prevail. It !is .manifest that direct· r~ · cruits ll!ld. pr9~.tces in.Class !I coll.l~tut~ twti distll!ct 1!1'oups or. classes. This classlficatton has a historical background and a rational bas11. · 'lbe . pr6motees ,ftqm the lower. iaziks have o.nly ·one chance of getting into . Clasl n servJce; as aaafnst 'three available to the direct recruits. . Further, for i cohsidefab1c time,. recruitment oy promotion from the ranks of Temporary .offtciating Deputy Engineers etc. to Class II Service re- · . ., . lnained .frozen with conse,ci,qcnt stagnatiqn and loss of inccµtive .in: the · · .. ·service.

Circumstances being ·what they are, promotees, at the tillfe of· their' entry into Class II Service, arc, broadly speaking, far ol<!er than the direct recruits; and,, iuany of 'the promO!ees may have less than 7· years to go before attaining the age of superannuation. If·.in the case . . of"both ·these groups· of promotees and d~t recruits, with different .. backgrounds .aad ;dissirnilll!' circumsta11ces,, the peri9d of seven years .. eligibijity 'service were to start from the date of their.absorption in Class : .. .: . · U, 't\len., for most . <?f the prompt~. there "'.O\lld ~ a rare chance <?f . : : ... , ev~r,gettmg promotion Ill! Of!!c!atmg ,Execu\tve Engineer. The class1- .fication Is thus !ilfed on mtel11g1ble d1fl'erent1a. . : .

If. a person, like any of the respondents, to avoid the long tortuous wait leaves his position in the 'never-ending' queue of Temporary /0ffi" ciatina Deputy Engineers etc, looking for promotion, and takes a short cut through the direct channel, to Class II Service, he gives up once for all, the advantages and disadvantages that go with the channel of promotion and. accepts all the handicaps aqd benefits which attach to the group of direct recruits. He cannot, after his direct recruitment claim , the benefit of his pre-selection service and thus have the best ot both · the worlc\s. It is well settled that so !qpg as the clusiftcation. is rea- H. · sonable ·and the persons falling in the same class arc treated alike, there can be no question of violation of the constitutional guarantee of equal treatment. (!) [1970] 2 s.c.R. 615. (2) [1970] ~ S.C.R. 4U. ( 1974 j 2 S.C.R. As pointed out by this Court in Ganga Ram's case (supra) in applying the wide language of Articles 14 and 16 to concrete cases doct,rinaire approach should be avoided and the matter considered in a practhal way.

If the claim of the respondents to the counting of their pre-selection service is conceded, it will create serious complications in running the administration; it will result in inequality of treatment rather than in removing it. If the pre-selection servfoe as Officiating Deputy Engineers of direct recruits having such service, is taken into account for the purpose of promotion, it woulif create two classes amongst the same group and result in discrimination against thoSt' direct recruits who had no such pre-selection service to their credit. The Select-List is prepared on the basis of seniority-cum-merit, and the inter-se seniority! of the selected officer in the lower rank is ordinarily to be maintained in the promoted rank. Acceptance of the respondents' contention will make the smooth working and uniforin application of this principle of 'seniority-cum-merit' difficult.

The inter-se seniority of the selected officers will be seriously disturbed and the ~partment will be faced with the anomalous situation of a junior officer, with pre-selection service, becoming eligible to be considered for promotion over the head of his seniors, even in the same group, having no such fortuitous pre-selection service to their credit. There is nothing in .rule 7 (ii) which compels the interpretation that in the case of direct recruits, also, their pre-selection service as Officiating Deputy Engineers, if any, should be counted towards their 'eligibility ~ervice'. Rule 7 (ii) is silent with regard to the method of.computing the seven years period of eligibility service. The interpretation of this condition of seven years service in rule 7 (iil is not res integra. It came up for consideration before this Court in Prabhakar Yeshwant Joshi's case (supra). The petitioners therein were also direct recruits to the posts of Deputy Engineers in B.S.E. Class II.

The respondents therein had entered Class II Service by promotion. The petitioners chal!enged the promotion of the respondents to the posts of Officiating Executive Engineers as being contrary to the principles of natural justice and violative of Arts. 14 and 16 of the Constitution. It was inter alia contended that under the 1960' Rules in force, respondents· 2. to 5 therein were only Officiating Deputy Engi· neers and they had to put in, after confirmation, as Deputy Engineers, seven years of actual ~ervice before being eligible for promotion as Officiating Executive Engineer. Spe.aking for the Olurt, Jaganmohan Reddy J. negatived this contention in these terms: "Even this rule 7(ii) does not indicate that the qualifying service of either of six years or of 7 years specified in the rule has to be permanent service. In cl. (ii) of r.

6 it is provided that 15 years of service in Class II for absorption (which means permanent absorption) as Executive Engineer ·· - can be in temwrary or permanent capacit(es. There is nothing in r. (iil to militate against the interpretation that the service specified there be the total service of any description whether provisional, temporary or permanent. If promotion from Class II as officiating Executive Engineer can only GUJARAT v. c. o. DESAI (Sarkaria, 1.) be made after 7 years of permanent service, then there woufo be no meaning in including the temporary service in Class II for the purpose of absorption as Executive Engineer. Even r.6 upon v;Jijch Shri Gupta has laid great emphasis in support of his contention, does not, in our view, justify an interpretation that 7 years' service required to entitle persons in Class ll for promotion as an officiating Executive Engineer should be pel'!Jlanent service in Class I. . . . . . . . . . (within brackets ours)

26J As we have seen earlier, (ii) of r. 7 doe.s no~ use t.he word 'belong' but requires only that the person under consideration for promotion should be from 0... II service. To be in Class II service the Deputy Engineer ' promoted from subordinate service has to put in at least 3 years of service as officiating Deputy Engineer before being confirmed and thereafter he can when he is promoted to the next higher rank be confirmed as Executive Engineer if he has put in 15 years in Class II service in temporary or permanent capacihes and is holding an officiating divisional rank namely of an Executive Engineer, If temporary service can be taken into account for confirmation as an Executive Engineer, so -can officiatinp; service, and if . officiating service can be taken into consideration, there is no iropediment to a Deputy l:!ngineer with 7 years' serviee whether officiating, temporary or permanent, to entitle him for promotion as an Executive Engineer ..... , . .

We cannot, therefore, accept the contention of Shri Gupta that a promotee officiating Deputy Engineer Class II is not entitled to be considered for promotion under r.7 to the post of, an officiating Executive Engineer unless he has put in 7 years of service from the date of confirmation." What is quoted above, no doubt, pertains to the case of promotees, with which the Bench was mainly concerned. But the obs•rvations in the pcnul1imate paragraph of the judgment excerpted below, incidentally cover the issue now before us: "None of the petitioners, it is averred, was included in the Select List of 1964 or 1965 because not only did any of them not have the requisite seven years• service as Deputy Engineer at the relevant time ......... .

The petitioners however denied in their re.ioindcr that ~he lists were prepared keeping the criteria laid dow.n by the rules, but in our view, it is significant that they did not posse1s the required length of service -in Class II for them to be entitled to promotion when the respondents were included in the list and promoted as such they cannot challenge the appointments made as being 1n violation of Art. 14 or Art. 16." (emphasis supplied) '-S2211CI/74 [ 1974] 2 S.C.R· In the light of the above discussion, we are of the opinion tha.t the learned Judges of the High Court were in error in holding that the impugned action· of the Government suffered from the vice of dis<:riml· nation and as such was violative 'of Art. 16 of the Constitution. We, therefore, allow this appeal, set aside the judgment of th! High Court and dismiss the writ petition, leaving the parties, In the clrcumstancet to their own costs. s.c. Appeal allowed. I