Ramesh Prasad Singh v. State of Bihar & Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1825 of 1969. From the Judgment and Decree dated 13-5-1969 of the Patna High Court in Civil Writ Jurisdiction Case No. 460/68. S. C. Aganvala and R. K. Garg for the Appellant. Sar;ov Prasad and U. P. Singh for Respondent No. 2 For respondents 1 and 3-28 Ex parte. The Judgment of the Court was delivered by JAsWANT SINGH, J.-This appeal by certificate granted by the High Court of Judicature at Patna under Article 133 (!)(a) and (b) of the Constitution is directed against the judgment and order dated May 13, 1969 of that Court whereby Civil Writ Petition No. 460 of 1968 fileu by respondents 3 to 28 herein was allowed, Notification No. SS/ A-1-103/68/2676/EB dated June 24, 1968 issued by the Bihar State Electricity Board, respondent No. 2, appointing the appellant as ofliciating temporary Executive Engineer (Tele-Communication), Tele-Communication Division, Patna was quashed and a writ of mandamus commanding respondent No. 2 to fill up the post of thci Executive Engineer (Tele-Communication) after considering the case of respondents 3 to 28 and specially of respcndents 3 and 4 along with the case of the appellant or with the case of any other Assistant Engineer whose case in the opinion of the Board may be lit to be considered in the light of the said judgment was issued.

The circumstances giving rise to this appeal lie in a short compass. It appears that the appellant who passed the final examination of Bachelor of Science (Engineering) in Tele-Communication of the Ranchi University held in August, 1962 was appointed by the Bihar [ 1978] 1 S.C.R. State Elcclricity Board (hereinafter referred to as 'the Board') as Assistant Engineer (Telc-Communication) in September, 1963 on a salary of l<.s. 245/- per month in the pay scale of Rs. 220-25-320- EB-25-670-EB-30-750. A few weeks after his recruitment, the appellant was sent by the Board to the headquarters of Messrs Brown · Boveri and Company Limited, Baden, Switzerland for six months' specialized training in power line carrier, telc-mctering and tele-control equipment in the modern power system. On his return from Switzerbnd and resumption by him of his duty as Assistant Engineer (Tele-Communication) the appellant was deputed to look after the entire tele-communication system of the Board.

In June, 1968, the Board felt the necessity of maintenance of efficient communication service between the vital centres of generation, utilization and administration for ensuring reliability and continuity in power supply which would facilitate quick supi>rvision and checking of the then existing arrangements at the generating stations, receiving sub-stations and distributing areas as also the necessity of proper supervision and handling by trained and qualified personnel of a large number of wavechange-over communication equipments on 33 KW Transmission line which had been installed in the Tele-Communication Sub-Division of the Board at Patna and were maintained and aligned with the help of special electronic instruments. Accordingly, the Board accorded sanction to the creation of 11 temporary Tele-Communication Division with head-quarters at Patna as also to the creation of a temporary post of Executive Engineer (Tele-Communication) in the replacement scale of pay of Rs. 730-35-870-40-1070-EB-45-1250 for the said Tele-Communication Divisicm with effect from June 22, 1968 to February 28, 1969.

Acting on the recommendation of its expert selection committee to the effect that the appellant was fit to be promoted to the rank of the Executive Engineer Tele~Communi­ cation) in view of the fact that he had a consistently good record of service, possessed the degree in Tele-Communication Engineering, had undergone special training in Switzerland in Tele-Communication, had ever since his return from Switzerland been satisfactorily performing the onerous and complex duties assigned to him and had been looking after the entire Tele-Communication system of the Board and had thus acquired a valuable practical experience in that field which was necEssary to man the post of Executive Engineer (Tele-Communication) and that the Assistant Electrical Engineers of 1960 batch were being considered for promotion as Electrical Executive Engineers, the Board issued the aforesaid notification temporarily promoting the appellant to the post of Executive Engineer (Tele-Communication).

Thereupon, respondents 3 to 28, who had been appointed as Assistant Electrical Engine~rs in September, 1960 moved the High Court at Patna by means of a writ petition under Article 226 of the Constitution challenging the aforesaid notification averring inter alia that thei promotion of the appellant was mala fide, that thou_gh they were senior to the appellant and possessed the requisite qualification and two of them viz. Harkishore Singh and Dina Nath Singh had studied tele-communication as one of their subjects in the final examination of B.Sc. in Electrical Engineering. they had not even been considered by the Board for appointment to the aforesaid post of Executive Engineer and that they had been superseded ~ P. SINGH v. BlliAR (Jaswant Singh, !.) and unreasonably discriminated against in violattion of the guarantee of equality of opportunity enshrined in Articles 14 and 16 of the Constitution.

The petition was contested by the appellant as also the State of Bihar and the Board who contended that the appellant was holding an extra-cadre post of Assistant Engineer (Te!ecCommunication) which was created separately from that of the other Assistant Electrical Engineers; that respondents 3 to 28 not being holders <lf degree in Tele-Communication (Engineering) were not qualified for appointment as Executive Engineer (Tele-Communication) and had no right to maintain the petition and that there was no ,question of violation of equality of opportunity guaranteed under Articles 14 and 16 of the Constitution. On a consideration cf the rival contentions of the parties, t.he High Court while granting that the appellant possessed the degree of B.Sc.

Engineering in Tele-Communication; that the post of Executive Engineer (Tele-Communication) might be an extr~ cadre post as claimed by the Board and that it was not for the Court but for thei Board to' decide on the basis of the opinion of experts or selection committee as to who was fit and suitable for that post, quashed the aforesaid notification promoting the appel!Jnt mainly on the grounds that neither a separate, cadre of Executive Engineer (Tele-Communuication) had been constituted nor had any special qualification been laid down by the· Board for the post in question and that respondents 3 to 28 who were seniors to and had better experience and academic career than the appellant had been unjustifiably ignored by the Board violating the protection of equal oppcrttmity guaranteed to them under Articles 14 and 16 of the 'Constitution. It is this judgment that is impugned in this appeal.

We have heard learned counsel for the appellant and respondents 1 and 2 viz. the State of Bihar and and the Board but have had not the advantage of hearing respondents 3 to 28 or any one on their llehalf, as they have chosen not to appear despite personal service. The !earned counsel appearing on behalf of the appe1lant and respondents 1 and 2 have vehemently urged that Tele-Communicalion is a highly specilizcd subject quite distinct from that of general Electricity: that respondents 3 to 28 who were mere graduates of Science in Electrical Engineering were not qualified for the> post of Executive Engineer (Tele-Communication) and had no right to maintain the writ petition out of which the present appeal has arisen and that in the facts and circumstances of the instant case, there was no question of any breach or violation of the guarantee of equality of opportunity contained in Articles 14 and 16 of th~ Constitution as was contended by them.

There is, in cur opinion, considerable force in these submissions. Regarding the observation of the High Court that in the absence of rules laying down qualifications for appointment and promotion to the post of Executive Engineer (Tele-Communication), respondents 3 to 28 could not be excluded from consideration for appointment tc "that post, we would like to say that though it cannot be gainsaid that before initiaticn of the proposal for creation of the post of Executive Engineer l Telc-Communic~pon), respondents I and 8 had not framed any rules prescribing qualifications for that post, it cannot be overlooked that it is not obligatory to make rules of recruitment etc. before a service is constituted or a post is created or filled up. As is well known, the process of rulc"making is a protracted and complicated one involving consultation with various authorities and compliance witl1 manifold formalities.

It cannot also be disputed that exigencies of administration at times require in1mediate creation of service or posts and any procrastination in that behalf cannot but prove detrimental to the proper and ellicient functioning of public departments. In such like situations, the authorities concerned would have. the povver to appoint or tcrn1inatc ad1ninistrativc personnel under th..: general power of administraticm vested in them as observed by this Court in B. N. Nagarajan & Ors. v. State of Mysore & Ors(') and T. Cajee v. U. Jorma11ik Siem & Anr.(') It follows, therefore, that in the a bsencc of rules, qualifications for a post can validly be laid down in the self same executive order creating the service or post and filling it up according to those qualifications.

In the instant case. it is evident from u persual of the proposal for creation of a Tele-Communication Division at Patna. and the arorcsaid, rccon1mendation n1adc by the Selection Committee in favour of the appellant that for ensuring reliability and coatinuity in power supply it was absolutely essential that maintenance of the sophisticated wave-change-ever communication equipments of 33 KW installed by the Board in the Tele-Communication Subsion should be entrusted to specially trained, experienced and qualified otncers possessing specialized theoretical and practical knowledge of Tele-Communication which is a subject quite distinct from that of general Electricity and covers according to New Encyclopaedia Britannica (15th Edition) and Webster's Third New International Dictionary all types of communication at a distance as by cable, radio, tclegrapl1, telephone, teletypewriter and fascimile.

Judged in this background. it is obvious that it was only the appellant who possessed degree in B.Sc. Engineering in Tele-Communication, was separately recruited and specially trained in tha~ line in Switzerland and had thus acquired specialized knmYlcdge therein and acquitted himself creditablv in the field for five years. who could be said to possess the requisite qualification and be1 considered. fit and suitable for the job in question and not an} one of respondents 5 to 28 who were mere gradlmtes in Electrical Engineering, nor even' respondents 3 and 4 who had studied Tele-Communication only as one of the subjects in their final B.Sc. Engineering Examination. It is patent, therefore, that the High Ccurt \Vas in error in thinking that respondents 3 to 28 possessed qualification equal to the appellant or that they were eligible for the job.

Turning to the other ground on which the judgment under appeal rests viz. the violation _of guarantee of equlity cnshimed in Articles 14 and JG of the Constitution. we would like to reiterate and re-emphasize what has been oft repeated by this Court viz, that the doctrine of equality before law and equal protection of laws and equality of opportunity in the matter of employment and promotion enshimed in Articles (1) (1966] 3 S.C.R. 682. (2) [196111 S.C.R. 750. 764. R. P. SINGH v. BIIIAR (Jaswant Singh, J.) 14 and 16 of the Constitution which is intended to advance justice by avoiding discrimination is attracted only when equals are treated as unequals or where unequals are treated as equals. (See Md. Usmwz & Ors. v. State of Andhra Pradesh('). The guarantee of equality does not imply that the same rules should be made applicable to all persons in spite o[ differences in their circumstances and conditions. (Sec Chiranjit Lal Chowdhuri v. The Union of India & Ors.(')

It is also well recognised that although Articles 14 and 16 of the Constitution forbid hostile discrimination, they do not forbid reasonable classilkation and equality of opportunity in matters ef promotion means equality as between members of the same class of em9loyces and not equality between the members of separate and independent classes. (Sec All lndia Stat;on Masters' & Assistant Station Masters' Association & Ors. v. General Manager, Cemral Railway & Ors,(") It must always be remembered that though the concept of equal protection and equal o;;portunity undoubtedly permeates the whole spectrum of an individual's employment from appointment through promotion and tennination to the payment of gratuity and pension, it has an inherent limitation arising from the very nature of the' constitutional guarante~.

Equality is for equals, that is to say those who arc similarly circumstanced are entitled to an equal treatment but the guarantee enshrined in Articles 14 and 16 of the Constitution can not be carried beyond the point which is well settled by a catena of decisions o[ this Court. The instant case, in our opinion, is completely covered by the dec<- sicns o[ this Court in State of Jannnu & Kashmir v. Triloki Nath Klw;a & Ors.( 4) (with which both of us had ·something to do at one stage or the other), State of Mysore v. P. Narasing Rao,(') Ganga Ram v. Cinion of India(") and the Union of India v. Dr. (Mrs.) S. B. Kohli( 7 ) Jn the State of Jammu & Kashmir v. Trilvki Nath Khosea & Ors. (supra) where after integration of diploma holder and degree holder Assistant Engineers in one class. it was provided by the J&K Engineering (Gazetted)

Service Rules, 1970 that only those Assistant Engineers 'who possessed degree in Engineering would be eligible for promotion to the post of Executive Engineer and the diploma holder Assistant Engineers who were rendered ineligible for promotion to the post of Executive Engineer filed a writ petition challenging the constitutionality of the rule and the classification on which it was claimed to be based. on the ground that once the employees are integrated into one class, they cannot for purposes of promotion be classified again into two different classes on the basis of educational differences existing at the time of recruitment, the Constitution Bench held rejecting the contention of the diploma holder Assistant Engineers that formal education may not always produce excel· Jenee b'1t a classification founded on variant educational qualifications is, for purposes of promotion to the post of an' Executive Engineer. to (!) [1971]2S.C.C.188. (3) [1960] 2 S.C.R. 3\1, 316. (5) [1968]

1S.C.R.407. (6) [197013 S.C.R. 481. (2) [19501 S.C.R. 869, 911. (4) [197411 S.C.R. 771. (7) A.LR. 1973. S.C. 811. [ 1978] 1 S.C.R. say the least, not unjust on the face of it and the onus therefore cannot shift from where it originally lay. The following passages occurring in the loading judgment of our learned bruther Chandrachud, J. in that case are worth quoting:- ''Jn order to establish that the protection of the equal opportunity clause has been denied to them, it is not enough for the respondents to say that they have been treated differently from others, net evc11 enough that a differential treatment has been accorded to them in comparison with others similarly circumstanced. Discrimination is the essence of classification and docs violence to the constitutional guarantee of equality only if it rests on an unreasonable basis.

1t was therefore incumbent on the respondents to plead and show that the classification of Assistant Engineers into those who hold diplomas and those who hold degrees is unreasonable and bears no rational nexus with its purported ohjccl. ... On the facts of the case, classification on the basis of educational qualifications made \vith a view to achieving ad1ninistrativc cHieicncy cannot be said to rest on any fortuitous circu1nstance and one has always to bear in mind the facts and circumstances of thti case in order to judge the validity of a classification .... Educational qualifications have been recognized by this Court as a safe. criterion for determining the validity of classification. In State of Mysore v. P. Narasing Rao (supra) where the cadre of Tracers was reorganized into two, one consisting of matriculate Tracers with a higher scale of pay and the other cf non-Matriculates in the lower scale, it was held that artic\es 14 and 16 do not exclude the laying dowu 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 tc candidates having higher educational qualifications. Jn Ganga Ram v. Union of India (supra), it was observed that "!he Slate which encounters diverse problems arising from a variety of circumstances is entitled to lay down conditions of efriciency for promotion in its different departments". Jn the Union of India v. Dr. (Mrs.) S. B. Kohli (supra), as refocd a classificaticn a9 between an F.R.C.S. in general surgery and an F.R.C.S. in Orthopaedics was upheld in relation to appointment to the post of a Professor of Orthooaedics on the ground that the classification made on the basis of requirement of a post graduate de?ree in particular speciality was not "without reference to the objectives sought to be nchicve<l and there can be no question of discrimination". The following observations made in State oj Mysore v. P. Narasing Rao (supra) will also amply repay perusal :---:

"It is well settled that though Article 14 forbids class legislation, it docs not forbid reasonable classification for the purpose of legislntion. Where any impugned rule or statutory provision is assailed on the ground that it contravenes R. P. SINGH '" BIHAR (Jaswant Singh, J.) Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in queslion. In other words. there must be some rational nexus h:twecn the basis of classification and the object intended to be achieved by the statute or the rule.

As we have already stated, Articles 14 and 15 form part of the same constitutio!1nl code of guarantee~ and supplc1nent each other. lll other words. Art. 16 is only an instance cf the application of tile general rule of equality laid doll'n in Art. 14 and it· shouid be construed as such. Hence there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Articles 16(1) docs not bar a reasonable classification of employees or reasonable tests for their selection."

In tho instant case. the qualifications required for the post Executrvc Engineer (Tele-Communication) as demonstrably rd1ectcd in the proposal for creation of that post and the aforesaid recommendation of the Selection Committee setting out various factors which went in favour ol' the promotion of the appellant appear to be founded on reasonable classification having an intelligible differentia which djstinguished the appellant from respondents 3 to 28 and the differentia had a reasonable relation to the object sought to be achieved. It is, therefore, crystal clear that respondents 3 to 28 did not stand at par with the appellant and had no legal right which they could claim to ll:lve been denied lo them by an authority which had a legal duty to do s0mething. With all respect the High Court was in our judgment therefore, not right in issuing the writ of mandamus. It \\'ould he useful in this context to refer to the following observations made by this Court in Mani Suhrat Jain & Ors. v. State of Harrana & Or.q')

"lt is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a 1nandamus. A ~·2r-;on c~1n be said to b.: aggrieved only \vhen a person is denied a legal right by someone \Vho has a legal duty to do something or to abstain from doing something. 1See Halsbury's Laws of England. 4th Ed. \'ol. 1. Paragraph 122: State of Haryana v. Subhash Chander Marwaha(') Jasbhai Motibhai Desai Roshan Kumar Haji Bashll' Ahmed(') and Ferris: Extra-Ordinary Legal Remedies. paragraph 198]". (I l [ 1977] I S.C.C. 486. (J) [l9)(,] 3 S.C.R. si. 14~95lSCl/77 (2) [l974] l. S.C.R. lfi5. n [J 978] ] S.C.R. In view of the foregoing, we are unable to hold on the m~terial before us that the criterion employed by the concerned authority in promoting the appellant was arbitrary or capricious or was not intended to increase the efficiency in the functioning of the department or was based on extraneous or irrelevant considerations or suffered Imm any other vice.

In the result, we allow the appeal, set aside the judgment of the High Court and uphold the aforesaid Notification No. SS/AI··10316812676-EB dated June 24, 1968 issued by the Board promot_ing the appellant as officiating temporary Executive Engineer (Tele-Communication). As respondents 3 to 28 have not appeared and contested the appeal, we make no order as to costs. S.R. Appeal allowed.