STATE OF JAMMU & KASHMIR versus TRILOKI NATH KHOSA & ORS.

STATE OF JAMMU & KASHMIR

TRILOKI NA TH Kl:(OSA & ORS.

September 26, 1973

[A. N. RAY, C.J., D. G. PAL~AR, Y. v. Cl!ANDRACHUD, P. N. BHAGWATI AND V. R. "KRISHNA IYER, JJ.]

Constitution of India, 1950, Articles 14, 16-Jam1nu and Kashmir Engineer· ing (Gazetted) Service Recruitment Rules, 1910-Persons appointed directly ind by promotion integrated into common class of Assistant Engineers-If for purpose of promotion as Executive Engineers they could be classified on the bas!s of educational qualifications-.Classification if violatii•e of articles 14 and 16. Under the Recruitment Rules of 1939, recruitment to the cadre of Assistant Engineers in the Jam mu and Kashmir Engineering Service was to be made by direct recruitment of degree holders in Civil Engineering or by transfer of degree or Diploma holders who have served as Supervisor for period of not less than 5 years. The rules further provided that appointments by transfer (that is by promotion) to the cadre of Executive Engineers could be made only from the cadre of Assistant Engineers on the basi!l of merit, abifity and the previous record of the candidates. The Jammu and Kashmir Engineering (Gazetted) Service .Recruitment Rules, 1970, provided that recruitment to the post of Executive Engineers and above was to be made only by promotion. _o\nd, as regards promotion to the post of Executive Engineers, and to those only, it was provided that only those Assistant Engineers who possessed degree in Engineering would be eligible for prcmotion. Diploma holders in Engineering, like the respondents, were thus rendered ineligible for promotion as Executive Engineers. The respondents challenged the constitutionality of the Rule. The classification, according to the appellants, was made ~ith view to achieving administrative efficiency in the Engineering Service. The High Court, took the view that the impugned Rule was violative of articles 14 and 16 of the Constitution.

In appeal to this Court it was contended on behalf of the· State that it is always open to the Government to classify its employees so long as the ci.assi· fication is reasonable and has nexus with the object thereto; that if there are different sources of recruitment, the employees recruited from different sources can either be allowed different conditions of Services and so c'Jntinue to belong to different classes or the Government may integrate them into one class; that once the ernployees are integrated into one clau they cannot for the purposes of promotion, be classified again into two different classes on the basis of differences existing at the time of recruitment; but, after integration into one class, the employees can, in the matter of promotion be classified into different classes on th•J basis of any intelligible differentia as, for example, educational qualifi.· c~tions,_ which has nexus with the object of the classification, namely, effi.-c1encY'm the post of promotion. The respondents urged that the Rules of 1939 did not.t make any distinction between diploma-holders ·and degree-holders; that the roles governing conditions of Serviee could not be changed retrospectively to classify employees on the basis of educational qualifications so as to deny promotion to the diploma-holders; that having regard to the fact that from 1939 to 1970 holders of diploma and degree were treated alike, the onus lay heavily on the appellants to prove the necessity for differentiating between the two, which onus was not discharged on the record of the cases; that there was no nexus between the classification and the objects to be achieved thereby and in fact the classification defeated that object; that if chances of promotion were denied to few within class of equals, tliere was an inherc;:nt vice attaching to the classification and no question of reasonableness of the ne\11· yardstick could possibly arise; that the unreasonableness of the classification was patent from the fact that degree qualification was considered as pre-condition for the promotion to the posts of Executive Engineers but not to higher posts; and

that if persons recruited from different sources were integrated into one c:ass, they could .Jlot thereafter be classified so as to permit in favour of son1e of them preferential treatment as against ethers.

HELD : Though persons appointed directly and by promotion were in~eg· rated into 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 vi0late articles 14 and 16 of the Constitution.

(i) It is wrong to characterise the operation of Service rule as retros;ec· tive for the reason that it applies to existing employees. rule which classi-fies such employees for promotional purposes; undoubtedly operates on those who entered service before the framing of the rule but it operates in future in the sense that it governs the future right of promotion of those who are already in service. It is well settled that Government servant acquires 'status' on appointment to his office and as result his rights and obligaticns are liable to be determined under statutory or Constitutional authority ,,·hich for its exercise requires no reciprocal consent. [779 E]

(ii) It is no part of the appellant's burden to justify the classification or to establish its constitutionality. classification founded on varialtt, educa-tional qualifications is, for purposes of promotion to the post of Executive Engineer, to say the least, not unjust on the face of it and the onus therefore-cannot shift from where it originally lay. [780 G]

Shri Ram Krislian Dalmia v. Justice S. R. Tendolkar & Ors. [1959] S.C.R. 279, 297; State of Uttar Pradesh v. Kartar Singh [1964] 6 S.C.R. 679, 687 and G. D. Kerkar v. Chief Controller of Imports and Exports [1967] 2 S.C.R. 29, 34, referred to.

(iii) Classification is primarily for the legislature or for the statut.:>ry authority charged with the duty of framing the terms and conditions of ser· vice; and if, looked at from the standpoint of the authority making it, th~ classification is found to rest on reasonable basis, it has to be upheld. Dis-crimination is the essence of classiJlcation and does violence to the constitu-tional guarantee cf equality only if it rests on an u~reasonable basis. [781 C] (iv) There is no justification for the respondent's plea that the record does not disclose the necessity "for the impugned rule of 1970. The records show jhat till about 1968 there was dearth of Engineering graduates. In 1962 the tatio between graduates and diploma holders was 1 : 2 and in 1968 it became alhlost 2 : 1 and in 1970 the position remained more or less unchanged. The appellants were entitled ;to take into account this spurt in the availability of persons with higher educati.onal qualifications for manning the next higher post of promotion. Further, it cannot be overlooked that even under the re· cruitment rules of 1939 , graduates in Civil Engineering were alone eligible for direct recruitment as Assistant Engineers in the· Kashmir Engineering Service. [783 BJ

(v) The argument that if the llature of duties and responsibilities of the post of Executive, Engineer has undergone· no significant change, there \Yould the Court right of scrutiny somewhat widerbe no justification for restricting the field· of choice to graduates 1 than is generally recognised. assumes in ·-The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say, those who are similarly circumstanced are entitled to an equal treatment. Classification·, however, is fraught with the danger that it may produce artificial inequalities and therefore, the right to classify is hedged in with salient restraints; or else, the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well-marked classes charac-terized by direren.t and distinct attainments. Oassification, therefore, must be

truly founded on substantial differences which distinguish persons groupeJ to-gether fron1 those left out of the group and such differential attributes n1ust bear just and rational relation to the object sought to be achieved.

Judicial scrutiny can therefore extend only to the ccinsideration whether the classification rests on reasonable basis and whether it bears nexus with the object in vie\v, It cannot extend to embaring upon nice or mathematical evaluation of the basis of classification, for, were such an inquiry permissible, it would be open to the coufts to substitute their own judgment for that of the legislature or the rule-making authority on the need to classify or the desir· ability of achieving o particular object. [784 A-CJ(vi) So judged, the classification of Assistant Engineers into degree holders and dipl0ma holders cannot be said to rest on any unreal or unreasonable basis. If the classification was made with view to achieving administrative effidency in the Engineering Service, the classification is clearly cor~relatedJ to it, for, higher educational qualifications are at least presumptive evidence of higher n1ental equipment. On the facts of the case the classification cannot b~ said to rest on any fortuitous circumstances. educational qualifications have been recognised by this Court as safe criteria for determining the validity of classification. [784 D; 785 E] State of Mysore & Anr. v. P. Narasing Rao, [1968] 1 S.C.R. 407. and The Union of India¥. Dr. (Mrs.) S. B. Klzoli, A.LR. 1973 S.C. 811, 313.

(vii) The seniority list of January l, 1971 shows how unreal the argun1ent iS that the qualification rule not having been extended to the higher echelons of service, it can bear no nexus with the attainment of administrative efficiency in con1paiatively lower hierarchy of Assistant Engineers. Dealing \Vith practical exigencies, rule making authority may be guided by the realities of life, just as the legislature, while making classification, "is free to recognize degrees of harm and it may confine its restrh .. i:ions to those classes of cases where the need is deemed to be the clearest." If the law presumably hits the evil where it is most felt, it is not to b: overthrown because there are other instances to which it might have b:en applied, [785 C, G]

Bain Peanut Co. v. Pinson 15 L. ed. 482, 489, Miller v. Wilson, 59 L.ed. 632 and Keekee Gonsol, Coke Co. v. Taylor 58 L.ed. 1288, 1289.

(viii) This Cou.t's decision in Roshan Lal's case is no authority for the proposition that if direct recruits and promotees are integrated into one class, they cannot b.e classified for purposes of promotion on basis other than the one that they were drawn from different sources. ~'\11 that Roshan Lal's case lays do\\'n is that direct recruits and promotees lose their birthmarks on fusion into common stream of service and they cannot thereafter be treated diffe-rently by reference to the consideration that they were recruited from different sources. Their genetic blemishes disappear once they are integrated into common class and cannot be revived so as to make equals unequals once again. In the instant case classification rests fairly and squarely on the con-sideration of educational qualifications : Graduates alone shall go into higher post. no matter whether they were appointed as Assistant Engineers directly or by promotion. The discrimination. therefore, is not in relation to the source of recruitment as in Roshan Lal's case. [789 C]

Roshan Lal Tando11 v. Union of India, [1968) I S.C.R. 185, Mervyn Co11ti11do & Ors. v. Coilector of Cus~oms, Bo1nbay & Ors., [1966] 3 S.C.R. 600 and S. M. Pandit v. State of Guiarat, A.LR. 1972 S.C. 252, ex-H plained and held inapplicable.

[The Court ~mphasized ·t~e necessity of adopting pragmatic approach in ordc~ to harmonize the r~cru1tmen~ of publi~ service with the aspirations of public servants and cautioned against evolving, through imperceptible e:-tten-

sior.s, theory of classification which may subvert. per.haps submerge, the previous guarnntee of equality.l [790 G]

Per Bhagwati and Krishna Iyer, JJ: (concurring): {i) The proposition that all men are equal has working limitations, since absolute equality leads to procrustean cruelty. A_n· imaginative and constructive modus, vivendi between commonness and excellence must be forged to make the equality clauses viable. The social meaning of articles 14 to 16 is neither dull uniformity nor specious 'talentism'. It is process of producing quality out of larger areas of equality extending better facilities to the latent capabilities of the lowly. [791 B-CJ{ii) In the present case, in the past decades, few Engineering graduates in the State and few Engineering Colleges in the country compelled Government to recruit diploma holders and protnote them to higher offices. But circ'um-stances have changed, needs have increased, availabilities have expanded and inequalities at the ediicational level -have been partly eliminated. And so personnel policy, \Vith an eye on efficiency have changed, [791 G-H]

(iii) Ho1,vever, while striking balance between the long hunger for equal chance of the lowlier and the disturbing concern of the community for higher standards of performance. the State should not jettison the germinal principle of equalit)' altogether. The dilemma of democracy is as to how to avoid vali-dating the abolition of the difference between the good and the bad in the name of equality and putting to sleep the constitutional command for expand-ing the areas of equal treatment for the weaker ones with the dope of 'special qualifications' measured by expensive and exotie degrees. These are p~rhfipS meta-judicial matters left to the other branches of Government, but the Court n1ust bold the Executive with,in the leading strings of egalitarian constitutiona-lism and correct, by judicial review, episodes of subtle and shady classification grossly violative of equal justice. That is the heart of the matter. That is the note that rings through the first three fundamental rights the people -have given to themselves. [792 BJ

The judgment of A. N. RAY, C. J., D. G. PALEKAR and Y. V. CHANDRACHUD J.J. was delivered by Chandrachud, J. KRISHNA IYER. J. delivered separate concerning Opinion on behalf of Bhagwati, J. and himself.

CHANDRACHUD, J. If persons drawn from different sources are integrated into one class, can they be classified for purposes of pro· motion on the basis of their educatioJa] qualifications? That is the issue for consideration before us.

R~spondents, who are Diploma Holders in Engineering, filed in the High Court of J ammu and Kashmir petition under article 226 of the Constitution to challenge the validity of certain Service Rules framed ~Y '.he Governm~n.t of Jammu and Kashmir. Learned single Judge d1sm1ssed the petrtron but in appeal Division Bench of the Hi~h Court took the view that the impugned rules were violative of ~rtrcles 14 and 16 of the Constitution. The correctness of that view is cl!a!Jenged by the State of Jammu and Kashmir in this appeal by sp;;~ral leave.

Respondents, who are serving in different branches of the E:ioi-neering Servi~e of the appellants, were appointed as Assistant Enginee~s between 1960 and 1966 by promotion from the Subordinate Engineering

Service. Their cODditioo.s of ~ were then governed by the' rules . pnblished under.Order No. 1328-C of 1939. Tho&e ~ to the extent material, ~ead· thus : thus :

material, ~ead· thus : thus : "The following ~es prescribing the procedure relat~ ing to recruitment to the gu.etted services are sanctioned :-. • . .. . ' . ,(l) Special' qualification.r~Under rule 18 of ' the Kashmir Civil Serv~ Rules (General), . the following . special qualifications are prsecribed in the sase of candidates . for dir:ct recruitment or recruitment by transfer, as the case may be, to the services mentioned below :-. . . ... .. . . .

KASHMlll. ENGINEERING SERVICE Direct Dea= in of versity; By transfer (i) Del!'"

Dea= in Civil Engineering of an:r rcCOl'!iscd Uni-versity; (i) Del!'" or Diploma in Civil Enginecring of any recogni~ University or Upper Subordinates . Diploma or any rccognls- ' ·ed. College of Engineer-- ing.and . . ' (ii") Service as Supervisor for period or not less th.in S · years on dot:y; Certificate of Ground En· . · gi!\eering prescribed by · the Government of India.

Catt1ory 2 of Class II. (Assistant Engineer).

Class ID (Ground Engineer>: . Cattaor:r 2 of Class II. (Assistant Electrical Engineer).

Direct

KASHMIR ELECI1UCAL SERVICE . Direct . (i) Degree

Direct . (i) Degree in Electrical Engineering of . any recognised University, and (ii) Practical training in an Electrical Power Station. · By transfer (i) Degree or Diploma in · Electrical Engineering of any recognised Uni~ versity and \ \; (ii) Practical Cxperienc: in an Electric Power Sta-tion.n /. ·

The rules further provided that' appointments by transfer (that is, by promotion). to the cadre of Divisional Engineers (now known as· Executive Engineers) could be made only from the cadre i of Assis-tant Engineers. Promotions to the cadre of Assistant Engiri.eers 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 C!IJldidates, seniority being considered only in case of equality of merit, ability and excellence of record". The scale of pay admissible to the Assistant Engineers was Rs. 300-20-500.

In 1962, the appllants undertook .a general revision of pay sc:i.lc~ and framed "Jammu and Kashmir Civil Services (.Revised Pay) Rules", which were gazetted on August 6, 1962. Ruie 12 divided the · Assistant fulgineers into two categories, datewise. Th6se appoin!P.d prior to August 1, 1960 were plac¢ in Grade I 'l\'_hile t:iose appointed subsequently were plac~d in Grade JI, regardless cf -whether :ippoint-ments to the posts of Assistant Engineers were made d:rectly or by promotion and whether the incumbent5 held deg::ee or diplo:na. 'Those in Grade I were put in the pay scale of Rs. 300-700' while t!iose in Grade II were put in the sctle. of Rs. 250-600. Officers in Grade ll were entitled to go into Grade I after completing two years' service, subject to the availability of va.:ancies.

further revision of pay scales was effected under the "fammu and Kashmir Civil Services (Revised Pay) Rules, 1968" which were _gazetted on February 27, 1968. 'Jnder Rule 10 (IIB) (il, Assistant Engineers. were granted new pay scale of Rs· 300-30-S40-EB-35-610-QB-S5-750, but it was provided that the "QB at Rs. 610/- will not be crossed by Assist~nt Engineers with Di!'loma Course". This ru!e was challenged. by the responrients ;n so far as it c'enied to them an <>pportunity to cross tl1e qur.lifkation bar.

.Then came the "Jammu ai;d Kashmi:: Engineering (Gazetted) Service Recruitment Rules, 1970", gazetted on October 12, 1970. These rules pruvic.le for appointments to the gazetted posts in various branches of the Engineering Service of the appellants and rnpersede the old rules on the subject. By rule 3 (f) 'promotion' is defined to mean promoti0n from one class, catepry or grade to another class, category or grade on the basis of merit an\1 efficiency, seniority being considered only when merit was equal. Under the Schedule annexed to these Rules, recruitment to the cadre of Executive Engineers and above was to be made only by promotion. But a5 regards promotion to th~ po;ts of Executive E_ngi'leers, and to those only, it was provided that only those Assistant Engineers would be eligible for promotion who possessed bachelor's· degree in engjlleering or held the quali-fication of AM·I.E., Section & and who had put in at least .. i years service in the J. K. Engineering, (Gazetted) Service. This is the second of the two Rules impugned in this ,appeal.

The case of the respondents as disclo_sed in their petition was that under the rules of 1939, Assistant ·Engi11.eers ·were ·entitled to· be promoted to tlie higher cadre on the ba~is O{ their merit and record and no distinction was made between degree-holders and diploma-l10lders for the purposes of snch p:omotiOI'. The discri_lllination made by the impugned rules between degree-holders and diploma-holders was arbitrary and capricious because rcademic or teclmical qualifica-

lions could be germaDe only at the time of recruitment. For purplses of promotion, efficiency and experience alone must count. Respondents further oontended that once the Government appointed candidates with different academic or technical qualifications to the same cadr~, having the same pay scale and similar duties, such candidates would form, one class and they cannot be further classified for purposes of ptp-motion on the basis of their educational qualifications. The impugned rules, according to the respondents, brought about reduction in rank, deprived them of equal opportunity in the matter of promotion and were violative of articles 14 and 16 of the onstitution of India. Finally, the respondents contended by their petition that it was not competent to the Government to change the service conditions unilaterally to the disadvantage of its employees so as to deprive them of their vested right of promotion by giving retrospective effect to the rules.

The appellants, by their counter affidavit, traversed these averments thus : It was within the competence of the Government to grant higher pay scale to persons with higher educational qualifications. Under the Rules of 1968 higher slab of pay was sanctioned for Assis-tant Engineers with higher educational qualifications and the quali-D fication Bar was imposed so as to exclude diploma,holders, with view to ensuring administrative efficiency in the Engineering service. Under the Rules of 1970, the Governor had laid down the method of recruitment arid had prescribed qualifications for appointtme,it to various categories of posts in the engineering department keeping in view the nature of duties and responsibilities attached to those posts. Classification, for purposes of promotion, on the basis of edu-E cational qualifications has an intelligible differentia and was therefore not violative of the constitutional provisions of equality, Lastly, the appellants disputed that application of the Rules to existing employees made the Rules "retrospective" in any sense,

The learned single Judge who heard the petition rejected tbe res-F pondents' contentions but that judgment was reversed in appeal by Division Bench of the High Court. Briefly, the Division Bench held that though it was open to the Government to make reasonable classification of its employees, where the employees were grouped together and integrated into one unit without reference to their quali-fications, they formed single class in spite of initial disparity in behalf of their educational qualifications an!! no discrimination could thereafter be made between them on the basis of such qualifications; that the discrimination made under the Rules of 1968 between dip-loma-holders and degree-holders was unconstitutional and that having .Prescribed diploma or degree in engineering with practical expe-rience as minimum qualification for entry into service, it was not open to the Government to prescribe higher educational qualifications for promotion from the cadre of Assistant Engineers to that of Exe-cutive Engineers. The main judgment was delivered by Mufti Bahaud-din J: who confined his view to the vice attaching to the rules by reason of their reprospectivity. The learned Chief Justice, by concurring

judgment, struck down th. rules for all time. They were, according to him, bad in so far as they applied to existing employees and would be bad if applied to those who may join the cadre in future.

The learned Attorney General, who appears on behalf of the appellants,. c<;>ntends that it is always open to the Government to classify .its employees so long as the classification is reasonable and has nexus with the object thereof; that classification cannot be held to infringe the equality clause unless it is actually and plapably arbi-trary; that if there are different sources of recruitment, the employees recruited from different sources can either, be allowed different con& tions of service and so continue to belong to different classes or -Oic Government may integrate them into one class; 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 differences existing at the time of recruitment; but, after integration into one class, the employees can, in the matter of promotion, be classified into diffe-rent classes on the basis of any intelligible differentia as, for example, educational qualifications, which has nexus with the object of classi-fication, namely efficiency in the post of promotion.

Mr. Setalvad who led for the respondents contended that neither at the time of appointment to the post of Assistant Engineers nor for the purposes of promotion to the post of Divisional Engineers (now called· 'Executive Engineers'), was any distinction made by the rules of 1939 between diploma holders and degree-holders; that rules governing conditions of Service oould not be changed retrospectively to classify employees on the basis of educational qualifications so as to deny promotion ~D the diploma-holders; that there was in the instant case no nexus between the classification and the object sought to be achieved thereby and in fact the classification defeated that object; that having regard to the fact that from 1939 to 1970 holders of Diplomas and Degrees were treated alike, the onus lay heavily on the appellants to prove the necessity for differentiating between the two, which onus was not discharged on the record of the case; and that, if the object of the classification was the attainn1ent of efficiency, the Government c·ould have achieved that object, and perhaps in better measure, by making talent, experience and efficiency as criteria for determining promotional opportunities.

Mr. Gupte, appearing for Respondents 18 to 29, tobk the stand that once there is class of equals no discrimination can be made among them on any ground whatsoever. Therefore, if chances of pro-motion are denied to few within class of equals, there is an inherent vice attaching to the classification and no question of the reasonable-ness of the new yardstick can possibly arise. In the alternative, Mr. Gupte 0011tended, possessfon of degree qualification was not r.easonable basis for segregating degree-holders and diploma-holders into water tight compartments. The impugned rule of 1970 was made in the awareness that only some Assistant Engineers were graduates and the facts of the case disclosed no reasonable basis for differentiation between them and the diploma-holders in regard to promotion as Executive Engineers. Finally, the learned counsel contended that the

unreasonableness of the clauificatioo was patent from the fact that degree qualification was prescribed as pre-condition for promotion to the post of Exetutive Engineers but not to higher posts. There was neither rhyme nor reason in rule which permitted Diploma-holder to occupy the post of Superintending _Engineer or the highest post of Chief Engineer but barred him from being considered for lower post in the cadre of Executive Engineers.

Mr. Garg, who appears foc one of the respondents, laid particular stress on the question of onus. He contended that the heavy onus, which lay on the appellants to justify the classification remained wholly undischarged in the context, especially, of the background that between 1939 and 1970 holders of Degrees and Diplomas were treated alike in the matter of promotion from the post of an Assistant Engi11eer to that of an Executive Engineer. system which had stood the test of time, could not, reasonably, be proclaimed unworkable or inefficacious unless the entire context and requirements of the system had undergone some sig!lificant change. Of that, says the counsel, there is just no evidence. ·

Most of the arguments advanced for the respondents have been considered and rejected by this Court in some case or the other but before coming to that, few points may be kept out of way_

An argument which found favour with Mufti Bahauddin J., one of the learned Judges of the Letters Patent Bench of the High Court, and which was repeated before us is that the "retrospective" appli-cation of the impugned rules is violative of articler 14 and 16 of the · Constitution. It is difficult to appreciate this argument and impossible to accept it. It is wrong to characterise the operation of service rule as retrospective for the reason that it applies to1existing employees. rule which classifies such employees for promotional purposes, un-doubtedly operates on those who entered service before the framing of the rule but it operates in futuro, in the sense that it governs the future right of promotion of those who are already in service. The impugned rules do not recall promotion already made or reduce pay-scale already granted. They provide for classification by pres-cribing qualitative standard, the measure of that standard being edu-cational attainment. Whether classification founded on such consideration suffers from discriminatory vice is another matter which we will presently consider but surely, the rule cannot first be assumed t<;1 be retrospective and then be strus:k down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot ever . operate to the prejudice of those who are already in service, the age of superannuation should have femainetl immutable and schemes of compulsory retirement in public 1[~est ][ought ][to ][have foundered ][on ]the rock of retroactivity. But suchl I& not the implication of service . rules nor is it their true description to say that because they affec!f existing emplo~ they are retrospective. It is well-settled that though employment under the Govcnunent like 1bat 1lllder any other master may have ci>ntractual origin, the Gcwerameat tervant acquires 'status' OD appoilltmellt to bis. ol!ice· As . result, his rights and obliga-

tions are liable to be determined under statutory or constitutional authcirity which for, its exercise, requires no' reciprocal consent. The Government can alter the terms and conditions of its employees un· ilaterally and though in modern times consensus in matters relating to public services is often attempted to be achieved, consent is not .. _ pre-condition of the validity of rules of service, the contractual origin of the service notwithstanding.

The argument on the question of onus is largely founded on the context of facts obtaining in the case. It is urged that for purposes of promotion to higher posts diploma-holders were treated on par with degree-holders from 1939 to 1970 and therefore, the onus must be on the appellants to prove facts and circumstances which necessitated radical departure from the. old and established order. If diploma· holders could competently fill higher posts for over three decades, reasons leading to the nde which renaers them wholly ineligible even from being oonsidered for promotion to the post of Executive Engineer ought to be established by the appellants and. it is urged, no evidence is disclosed in support of such reasons.

This submission is erroneous in its formulation of legal propo-sition governing onus of proof and it is unjustified in the charge that the record discloses no evidence to show the necessity of the new rule. There is always presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been clear transgression of the constitutional princi· pies.('') rule cannot be struck down as cjiscriminatory on any priori reasoning. "That where party seeks to impeach the validity of rule made by competent authority on the ground that the rules offend Art. 14 the burden is on him to plead and prove the infirmity is too well established to need elaboration."'· The burden thus is on the respondents t<J set out facts necessary to sustain the plea of discrimi· nation and to adduce "cogent and convincing evidence" to prove those facts for "there is presumption that every factor which is relevant or material has been taken into account in formulating the classifica· tion"([2]). In G. D. Kelkar v. Chief Controller of Imports and Exports([3]). Subba Rao C.J. speaking for the Court has cited three other decisions of the Court in support of the proposition that "unless the classification is unjust on the face of it, the onus lies upon the party attacking the classification to show by pleading the necessary material before the court that the said classification is unreasonable and viola-tive of Art. 16 of the Constitution."

Thus, it is no part of the appellants' hurden to justify the classifica-tion or to establish its constitutionality, Formal education may not always produce excellence but classification founded on variant edu· cational qualifications is, for purp<ises of promotion to the post of an

(l) Shri Ram Krishan Dalmia V. Justice [1959] S. C. R, 279. 297 (b).

S, R. Tendolkar & Ors.

(Z) State of Uttar Pradesh V. Kartar Singh [1964] (6) S. C.R. 679, 687.

(3) [1967] (2) S. C. R. 29, 34.

Executive Engineer, to say the least, not unjust on the fact of it' and the onus therefore cannot shift from where it originally lay.

RCSJIOO!lcµts have assailed the classification in the clearest terms but the1r challenge is purely doctrinaire. 'Academic or technical quali· fications ~ be germane only at the lime of initial recruitment; for purpcl6el ol ~on, efficiency and experience alone must count' -thill is the content of their challenge. The challen~, at best, refiects the 8 • 1tepOlldents' opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of View. But we cannot sit in appeal over the legislative judgmeJ!t with view to finding out Whether on comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. Classificatioa is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and oooditi9.lls of service; and if, looked at from the standJ?6int of the authority making it, the classification is found to rest on reasonable baiis, it has to be upheld.

Our reason for saying this is to emphasize that the respondents ought .to have furnished particulars as to why, according to them, the c:faSslftea\ion between diploma-holders and degree-holders is not based on rational consideration having nexus with the object sought to b6 achieved. . In order to establish that the protection of the equal opportunity clause has been denied to them, it is not enough for the :re&pondents to say that they have been treated differently from others, not even enough that differential treatment has been accorded to them in comparison with others similarly circumstanced. Discrimi-E nation is the essence of classification and does violence to the constitu-tic-nal r,uarantee of equality only if it rests on an unreasonable basis. It 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 pnrported object. Rather than do this, the respondents contented themselves by propounding an abstract theory that educa-tional qualifications are germane at the stage. of initial recruitment only. Omission to furnish the necessary particulars was construed by tflis Court in two cases as indicating th.at the plea of unlawful discrimi-nation had no basis ([1]). Such an infirmity in leadings led this Court in Stat~.of Madhya Pradesh v. Bhopal Sugar Industries Ltd. ([2]) to remand tho matter to the High Court in order to enable the petitioner therein to amend its petition.

Mr. Garg asked for remand so that the respondents could have an opportunity to plead the necessary facts but we declined to do so as we did not propose to allow the appeal on the narrow ground that the respondents' plea of discrimination was inadequate. Nor indeed

-----(1) Katra Educational Society V. State of Uttar Pradesh & Ors. 1966, (3) S. C.R. 328, 336 and 337~ Probhudas ,Morar.iee Rajkotia & Ors. V. Union of India & Ors., A. I. R. 1966 S. C. 1044, 1047. (2) [1964] 6. S. C. R. 846.

did the .learned Attorney Gen~ral pre;s for ~ d~cision 011 any. such . ·ground. We have heard the learned counsel fully on the menu of the matter, especially as the question of onus was not presented before the High Court in.the form in which it was presented before us •. We will now advert to the merits of the other contentions. ·~ . . -. . -~ The Proviso to Rule lO(IIB) (1) of the 1968 Rules under which. Diploma-holders were debarred from crossing· the Qualification Bar .. 1 · placed ,at Rs .. 610 need not detai;t us becluse the le~ed Atto~ei General states that the Bar has smce been removed with retrospecttvo · · effect: The 1968 scale of pay will therefore apply equally to . tha · degree-holders and diploma-holders in the cadre of Assistant Engi~ neers, with effect from the date on which the 1968 Rules came · intO force. ResP<>ndents, accordingly, will be eligible to reach the ceiling of the scale regardless of the fact that the:,: hold diploma arid not degree in Engineering. ·

·The main question for decision arises out of the challenge to the · Rules of 1970 under which diploma-holders in the cadre of Assistant Engineers are not entitled even to be. considered for promotion to the next higher cadre of Executive Engineers. Under the Schedule to · those Rules, recruitment to the cadre of executive engineers can be made only by promotion from amongst Assistant Engineers. To thaf is added the impugned rider that only those Assistant Engineers will be . eligible for promotion who possess bachelor's Degree in Engineering or who hold the qualification of AM.LE. (Section and B) and who have put in at least seven years' service. Diploma-holders in . Engi-neering, like the responderts, are thus rendered ineligible for promo-tion as Exe~utive Engineers.

We have observed earlier· while dealing with the question of onus · that there was no justification for the respondents' plea thafthe record does not disclose the necessity for the im:pugned rule · of · 1970.· We will draw attention to the relevant matenal, which is always admissi-. ble to show the reasons and the justification for the classification. Sui:h reasons need not appear on the face of_the rule or law which effects the classification ( 1) •

The seniority list of Assistant Engineers as of January . 1, 1971 discloses significant phenomenon. The list comprises 78 A!llistant Engineers and omitting the very first amongst them who was only · matriculate, the remaining 77 were appointed as Assistant Engineers . between October 19, 1960 and December 24, 1970 .. Prior to AUSU"t . 6, 1962 when the rules of 1962 came into force, only 7 ·Assistant Engineers held an 'Engineering Degree as. against 13 who held ·a dip-loma. The position on February 27, 1968 when the rules of 1968 · came into force was that the number of degree-holders had increased· to 38 while that ol diploma~olders. went up from 13 to 21 only. On Octo~r 12._1970 whe.n.the impugned rule now under consideration ~ame mto force, there were 48 degreechOlders and 26 diploma-holders m the cadre of Assistant Engineers, excluding the last one at item No. . 78 who was promoted after. the. promulgation -or the_ rules --but who is --,------· . . (I ~~9~~han D~,.': IusUice S. R. Tendolkar & Ors., [1969) S. s:;.

also degree-holder. We have advisedly taken no note of two ins-tances in one of which the incumbent was not appointed as regular Assistant Engineer and the other where, though appointed, the person concerned did not join the Department.

It is transparent from this analysis that till about 1968 there was dearth of Engineering graduates. In 1962, the ratio between gra-duates and diploma-holders was 1 : 2. In 1968 it became almost 2 : 1 and in 1970 the position remained more or less unchanged. The appellants were entitled to take into account this spurt in the availa-bility of persons with higher educational qualincations for manning the next higher post of promotion. In fact, it may not be overlooked, that even under the recruitment rules of 1939 graduates in Ovil Engi-neering were alone eligible for direct appointment as Assistant Engi-neers in the Kashmir Engineering Service. Only departmental pro-c motions could be made from amongst diploma-holders and that too if they had put in 5 years' service in the cadre of Supervisors. There is therefore no substance in the contention that the record sheds no light on why change was thought necessary in system that had stood the test of time. In 1968 itself when there was proliferation in the ranks of graduates, an attempt was made which was later rectified, to offer higher incentive to graduates by the placement of Qualifica-tion Bar. We are not called upon to adjudge its validity for reasons alr.eady mentioned but it is obvious that the impact of the changing pattern had to receive its due recognition.

But then Mr. Setalvad contends that if the nature of duties and res-ponsibilities of the post of Executive Engineer has undergone no signi-ficant change, there would be no justification for restricting the field of choice to graduates. Talent and efficiency could be found in the' ranks. of diploma-holders in an equal measure and it is urged that rather than display mere fancy for graduates and restrict its choice, the State should have in the interest of an efficient service, laid the promotional chances open to both the ranks on the basis of talent, experience and efficiency.

This argument, as presented, is attractive but it assumes in the court right of scrutiny somewhat wider than is generally recognized. Article 16 of the Constitution which ensures to all citizens equality of opportunity in matters relating to employment is but an instance or incident of the guarantee of equality contained in article 14. The con-cept of equal. opportunity undoubtedly permeates the whole spectrum of an indi¥idual's employment from appointment through promotion and termination to the payment of gratuity and pension. But the con-cept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstanced are entitled to an equal treatment.

Since the constttutional code of equality and equal opportunity is charter for equals, equality of opportunity in matt~rs of promotion means an equal promotional opportunity for persons who. fall, subs-tantially, within the same class. classification of employees can therefore be made for first identifying and then distinguishing member! of one class from those of another. 10.-L392Supc.T/74

Classification, however, is fraught with the danger that it may pro-duce artificial inequalities and therefore, the right to classify is heJged in with salient restraints, or els(, the guarantee of equality will be sub-merged in class legislation inasquerading as laws meant to govern well-marked classes characterized by different and distinct attainments. Classification, therefore, must be truly founded on substantial diffe-rences which distinguish persons grouped together from those left out of the group and such ditferential attributes must bear just and rational relation to the object sought to be achieved.Judicial scrutiny can therefore eJ1tend only to the consideration whether the classification rests on reasonable basis whether it bears nel\us with the object in view. It cannot eJ1tend to embarking upon nice or mathematical evaluation of the basis of classification, for wrr" 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 particular object. Judged from this ]Joint vf view, it seems to us impossible to accept the respondents' submission that the classificat10n of Assistant Engi-neers into Degree-holders and Diploma-holders rests on any unreal or unreasonable basis. 'The classification, according to the appellants, was made with view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly cor-related 19 it for higher educational qualifications are at least pre-sumptive evidence of higher mental equipment. This is not to sug-gest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifi-cations but that is beside the point. What is relevant is that the object to be achieved here is not mere pretence for an indiscriminate impo-sition of inequalities and the classification cannot be charactersized ,as arbitrary or absurd. That is the farthest that judicial scrutiny can extend. On the facts of the case, classification on the basis of educational qualifications made with view to achieving administrative efficieacy cannot be said to rest or:. any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of classification. The provision in the 1939 Rules restricting direct recruitment of Assistant Engineers to Engi-neering 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 capricious or fanciful. Efficiency which comes in the trail of higher mental equipment can reasonably be attempted to be achieved by restricting promotional opportunities 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 the classification is scientific. Such tests have long since been discarded. In fact American decisions have gone as far as saying that classification would offend against the 14th Amendment ot

the American Constitut10n only If it is "purely arbitrary, oppressive or capricious"(' J and the inequality produced in order to encounter the challenge of the Constitution must be "actually and palpably un-reasonable and arbitrary"('). We need not go that far as the diffe-rences between the two classes-gr~duates and Diploma-holders-furnish reasonable basis for separate treatment and bear just rela-tion to the purpose of the impugned provision. Educational qualifications have been recognized by this Court as safe criterion for determining the validity of classification. In State of Mysore v. P. Narasing Rao('), where the cadre of Tracers was re-organized into two, one consisting of matriculate Tracers with higher scale of pay and the other of non-matriculates in lower scale, it was held that articles 14 and 16 do not exclude the laying down of selec-c tive tests nor do they preclude the Government from laying down qualifications for the post in question. Therefore, 1t was open to the Government to give preference to candidates having higher educational qualifications. Jn Ganga Ram v. Union of India('), it was ol:iserved that "The State which encounters diverse problems arising from 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 v. Dr. (Mrs.) S. B. Kohli('), Central Health Service Rule requiring that professor in Orthopaedics must have post-graduate degree in the particular sp<ciality was upheld on the ground that the classifica-tion made on the basis of such requirement was not "without refe-rence to the objectives sought to be achieved and there can be no ques-tion of discrimination". The argument that degree qualification was not the only criterion of suitability was answered laconically a·s "strange".

Under the Schedule to the 1970 rnles, degree qualification is prescribed as condition for promotion to the post of an Executive Engineer from the cadre of Assistant Engineers. But there is no rule requiring simihr quali1ication for promotion to the post of Super-F intending Engineer which is next higher to the post· of Executive :Engineer or for promotion to the apex post of the Chief Engi-neer. 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 fer stated number of year. This circumstance is pressed into service by the respondents in support ,Qf their plea that the whole basis of classification is unreal and that the true object could not be the ·attainment of higher administrative effi-ciency. If it was thought l'e'cessary to prescribe Degree qualification in order to achieve efficiency in the post of E)[ecutive Engineers, ex

(1) Joseph Radice v. People of the State of New York, 68 L. Ed. 690, 695, A111eri-can Sugar Ref Co. v. Louisiana, 45 L. Ed. 102, 103.

(2) 68 L. Ed. 690, 6)5; Arkansas Nan1ral Gas Co. v. Railroad Comn1is.1ion 61

L. Ed. 705. 710.

(31 [1968](1) S. C.R. 407. State of Mysore & Anr, vs. P. Narasina Rao. (41 [1970] (3) S. C. R. 481, 488. (5) A. I. R. 1973 S. C. 811, 813.

hopothesi it should have been equally imperative, if not more to pro-vide for similar condition in regard to promotion to higher posts thus runs the argument.

This argoment means that any service reform must embrace every hierarchy or none at all. It is often impossible or at any rate inexpe-dient to reach and- remedy all forms of evil, wherever present. Reform must begin somewhere if it has to begin at all and therefore, the ad-ministrator who has nice and complex problems to solve must be allow-ed the freedom to proceed tentatively, step by step. Justice Holmes gave in similar context significant warning that : "We must remem-ber that the machhwry of Government would not work if it were not allowed little play in its joints".([1])The seniority list of January 1, 1971 shows how very unreal the argument is that the qualification rule not haviug been extended to the higher echelons of service, it can bear no nexus with the attainment of administrative efficiency in comparatively !Ower hierarchy of Assistant Engineers. On January 1, 1971 which was soon after the publication of the 1970 Rules, there were 6 persons in the cadre of Superintending Engineers all of whom, except one, are graduates. The one at the top is an L.E.E. but he entered service in 1939 and must now be quite on the verge of retirement. There is therefore but slender chance that pon-graduate could climb into the top position of Chief Engineer, ,which post can, under the rules of 1970, be filled only by promotion from amongst Superintending Engineers. Promotion to the cadre of Superintending Engineers can be made oniy from amongst Executive Engineers and the Seniority list shows that out of 22 Executive Engi· neers, 19 are graduates and only 3 are diploma-holders. Out of the 19, the first 15 according to seniority are all graduates so that the chances of diploma-holder being promot~d as Superintending Engineer are tairly remote. With the new rules coming into force, all Executive En-gineers will, after October 12, 1970, be appointed from amongst gra-duates in the rank of Assistant Engineers and therefore the cadre of Executive Engineers will soon consist of graduates exclusively. The Governor was entitled to give weight to these practical considerations and to restrict the operation of the impugned rule to cases where their application was imperative. Dealing with practical exigencies, rule-making authority may be gnided by the realities of life, just as the legis-lature, while making classification "is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be the clearest{[2]) ." 1f the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.(')

Only one point remains to be considered and it requires close at-tention as it claims to have the authority of leading decisions rendered by this Court. We have relegated this point to rear position because it was necesrney, for proper understanding thereof, to clear the ground of variou.q other doubts dealt with above. neat point can now be framed and discussed.

(I). Bain Peanut Co. v. Pinson 75 L. ed. 482, 489.

(2). Mi fer vs. Wilson, '.J9.L. ed. 632.

(3), Keoke Consol. Coke Co. v. Taylor 53 L. ed. 1288, 1289.

If persons recruited from different sources are integrated into one class, they cannot thereafter be classified so as to permit in favour of some of them preferential treatment in relation to others. That is the argument before us which, applied to the facts of the case, means in plain terms this : Direct recruits and promotees having been .ap-pointed as Assistant Engineers on equal terms, they constitute an inte-grated class and for purposes of promotion they cannot be classified on the basis of educational qualifications.

We have drawn attention to three decisions of this Court (Narsing Rao's case, Ganga Ram's case and Dr. Mrs. Kohli's case) in which classification on the basis of educational qualifications was upheld. In N arsing Rao' s case ( ''), Tracers doing equal work were classified into two grades having unequal pay, the basis of the classificatio11 being higher educational qualifications. In Dr. (Mrs.) Kohli's case([2]), as refined classification as 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 Professor of Orthopaedics. But these cases are sought to be distinguished on the authority of the decision ·of · this Court in Rosha11 Lal Tandon v. U11ion of India(•). That case is crowded with facts and requires careful consideration for its proper understanding.

Vacancies in Grade 'D' of Train Examiners were filled in Roshan Lal's case by ~a) direct recruits i.e., apprentice train examiners and (b) promotees from the class of skilled artisans, in the ratio of 50 :50. Promotion from Grade 'D' to Grade 'C' was to be made on the basis of 'eniority-cum-suitability. In October, 1965 the Railway Board issued notification providing that 80% of the vacancies in Grade 'C' would be filled up from the class of apprentice train examiners recruited on and after April 1, 1966 and the remaining 20% from amongst tlie train examiners. in Grade 'D'. The notification further provided that apprentice train examiners who were ~h;orbed in Grade 'D' before April 1966 would be accommodated en bloc in _Grade 'C' in the 80% of the vacancies, without undergoing any selection. With regard to 20% of the remaining vacancies it was provided that the promotion would be on the basis of selection and not on the basis of seniority-cum-F suitability. The petitioner, Roshan Lal Tandon, who had entered Rail-w:ty service in 1954 as skilled artisan and was later selected and oonfirmed in Grade'D' as Train Examiner filed writ petition in this Court challenging under articles 14 and 16 of the COnstitution, that part of the notification which gave favourable treatment to aporeJitice train examiners who had already been absorbed in Grade 'D'. His case was that he, along with direct recruits, formed one class in Grade 'D' nnd according to the conditions of service applicable to them. seniority was to be reckoned from the date of appointment as Train Examiners in Grade 'D' and promotion to Grade 'C' was to be on the basis of senioritv- cum-suitability, irrespective of the source of recruitment. His contention was that since he was aopointed to Grade 'D' after under· ~ing the necessary ·selection and training and since he was integrated with the others who were appointed to Grade 'D' by direct recruitment, no differentiation could be made a' between him and the direct recruits in the matter of promotion to grade 'C'.

(1) [1968] (I) S-. C.R. 407:-

(2' A. I. R. 1973 S. C. 811.

(3) [1968] (!) S. C. R. 185.

The Constitutional objection taken by Roshan Lal was upheld by this Court with these observations :

"At the time when the petitioner and the direct recruits were appointed to Grade 'D', there was one class in Grade 'D' formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade 'D' were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade 'C'. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher grade 'C'. In the present case, it is not disputed on behalf of the first respondent that before the impugned notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule was seniority-cum-suitability, and there was no rule of promotion syparately made for application to the direct recruits. As consequence of the impugned notification discriminatory treatment is made in favour of the existing Apprentice Train Examiners who have already been absorbed in Grade 'D' by March 31, 1966, because the notification provides that this group of Apprentice Train Examiners should first be accommodated en bloc in grade 'C' upto 80 per cent of vacaricies reserved for them with-out undergoing any selection. As regards the 20 per cent of the vacancies made available for the category of Train Examiners to which the petitioner belongs the basis of recruitment was selection on merit and the previous test of seniority-cum-suitability was abandoned. In our opinion. the present case falls within the principle of the recent decision of this Court in Mervyn v. Collector [1966(3) S.C.R. 600]."The key words of the judgment are : "The recruits from both the sources to Grade 'D' were integrated into one class and no discrimina-tion could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade 'C' ". (emphasis supplied). By .this was meant that in the matter of promotional opportunities to Grade 'C', no discrimination could he made between promot~es and direct recruits by reference to the source from which they were drawn. That is to say, if apprentice Train Examiners who were recruited directly to Grade 'D' as Train Examiners formed one common class with skilled artisans who were promoted to Grade 'D' as Train Examiners, no favoured treatment could be given to the former merely because they were directliy recruited as Train Examiners and no discrimination could be made as against th·e latter merely because they were promotees. This is the true mean-ing of the observation extracted above and no more than this can be read into the sentence next following : "To put it differently, once

the direct recruits and promotees are absorbed into one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade 'C' ". In terms, this was just different way of putting what had prece. led.

Thus, all that Roshan Lal's cru;e lays down is that direct recruits and promotees lose their birth-marks on fusion into common stream of service and they cannot thereafter be treated differently by reference to the consideration that .they were rcruited from different sources. Their genetic blemishes disappear once they are integrated into common class and cannot be revived so as to make equals unequals once again.

Roshan Lal's case is thus no authority for the proposition that if dir~ct recruits and promotees are integrated into one class, theiy cannot be classified for purposes of promotion on basis other than the one that they were drawn from different sources. In the instant case, classi· fication rests fairly and squarely on the. consideration of educational qualifications : Graduates alone shall go into the higher post, no matter whether they were appointed as Assistant Engineers directly or by promotion. The discrimination therefore is not in relation to the source of recruitment as in Roshan Lal's case.

It is relevant, though inconclusive, that the very Bench which decided Roshan Lal's case held about fortnight later in Narsing Rao's case that higlier educational qualifications are relevant consideration for fixing higher pay scale and therefore Matriculate Tracers could be given higher scale than non-matriculate Tracers, though their duties were identical. Logically, if persons rec.ruited to common cadre can be classified for purposes of pay on the basis of their educational quali-fications, there could be no impediment in classifying them .on the same basis for purposes of promotion. The ratio of Roshan Lal's case can at best be an impediment in favouring persons drawn from one source as against those drawn from another for the reason merely that they are d•:awn from different sources. There is an aspect of Roshan Lal's case which may not be ignored. The Union of India had contended by its counter-affidavit therein that the reorganization of the service was made with view to obtaining better and more technicallo' trained class of Train Examiners which had become nece!!Sary on account of the acquisition of modern types of Rolling Stock, complicated designs of carriages and wagons and greater speed of trains under the dieselisation and electrification programmes. This contcution, though mentioned in the affidavit, was not placed before the court as is transparent from the judgment. What is impact would have been on the ultimate conclusion need not be speculated, for it is enough for understanding the true ratio of the judgment to say that the case was decided on the sole basis that persons recruited from different R sources were classified according as whether they were appointed direct· ly or by promotion. That is why the key passage cited by us from the judgment winds up by saying that the "case falls within the principle of. ....... the decision .... in Mervyn v. Collector".

In Mervyn Coutindo & Ors. v. Collector of Customs, Bombay .t Or~., (') no question arose in regard to the vlllidity of classification based on educational qualifications. .The question there was whelhet rotational system for fixing seniority was discriminatory if the recruit-ment was partly by promotion and partly directly. It was held that ther!l is no inherent vice in such system if the service is composed in fixed proportion of direct recruits an<! promotees. The rotational system could therefore be adopted in fixing seniority in the cadre of Appraisers, to which recruitment was in actual practice made directly and by promotion in the ratio of 50 : 50. But diff~rent. considerations were held to arise when the same system was applied for fixing seniority in the cadre of Principal Appraisers because, there waS only one source from which the Principal Appraisers were drawn, namely Appraisers. The ratio of the judgment is : "The rotational ·system cannot ..... apply when there is only o~ source of recruitment". This is the principle within which Roshan Lal's case was expressed'to fall. Neither the one n~r the other c:f the. two cases was concerne_d wi~h the 9u~stion which arises for cons1derat1on before us. The class1fica1Ion of which we have to determine the. validity is not made in relation to the source of ' recruitment. Therefore cases like Roshan Lal's, Mervyn Coutindo's and Pandit's ([2]) fall in class apart. The case laat mentioned is . typical instance of that class, where directly appointed Mamlatdars were accorded a· favoured treatment qua the promotee Mamlatdlrl ill the matter of promotion to the post of Deputy Collector. Mamta&dan, whether appointed directly or by promotion, constituted ~ clau ud therefore it was held tb'at no reservation could be made in favow of the directly appointed Mamlatdars for promotion to the eadre of Deputy Collectors.We are therefore of the opinion that though persons appointed directly and by promotion were integrated into 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 charter for .making minute and microcosmic classifications. Excellence is, Oi ought to be, the goal of all good government and excellence and equa-lity are not friendly bed-fellows. pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, theory of classification which may subvert, perhaps submerge, 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 ?

For reasons indicated, we allow the appeal but there will be no order as to costs.

ii; [1966) (3) S. C.R. 600.

(2) S. M. Pandit v. State of Gniarar, A. I. R. f972 S. C. 252

KRISHNA IYBR, J. We fully endorse what bas been said by our learned brother Chandracbud, J., but the profound depths of equal justice in public employment touched in bis final paragraph (with which we ardently agree) impel few concurring observations of our own.

In this unequal world the proposition that all men are equal · bas working limitations, since absolute equality leads to Precrustean cruelly or sanctions indolent inefficiency. Necessarily, therefore, an imagina-tive and constructive modus vivendi between commonness and excel-lence must be forged to make the equality clauses viable. This prag-matism produced the judicial gloss of 'classification' and 'differentia', with the by-products of equality among equals and dissimilar things having to be treated differently. The social meaning of arts. 14 to 16 is neither dull uniformity nor specious 'talentism'. It is process of producing quality out of larger areas of equality extending better faci-lities to the latent capabilities of the lowly. It is not methodology of substitution of pervasive and slovenly mediocrity for activist and intelligent-but not snobbish and uncommitted-<:adres. However, if the State uses classification casuistically for salvaging status and elitism, the point of no return is reached for arts. 14 to 16 and the Courts jurisdiction awakens to dadden such manoeuvres. The soul of art. 16 is the promotion of the common man's capabilities, over-powering environmental adversities and opening up full opportunities to develop in official life without succumbing to the sophistic argument of the elite that talent is the privilege of the few and they must rule, wriggling out of the democratic imperative of arts. 14 and 16 by the theory of classified equality which at its worst degenerates into class domination.

The relevance of these abstract remarks to the present case is obvious. Engineers with diplomas are likely to be drawn from poorer families and not necessarily because they are incapable of making the 'degree' grade. An opportunity for them to level up, through expe-F rience and self-study, with their more fortunate degree"holding meri-tocracy, is of the essence of equal opportunity for people with drag-ging backgrounds. If economically, and therefore educationally, handicapped men distinguish themselves, they are heroes and should be honoured and not kept humble through life on account of the origi-nal sin of inferior qualifications. Indeed, diploma holders in that Himalayan State were good enough, in the past decades, to go to the top of the ladder, as the facts of this case admittedly disclose. How-ever, in these young days few engineering grapuates in the State and few engineering colleges in the country compelled Government to recruit diploma holders and promote them to higher offices. But circumstances have changed, needs have increased, availabilities have expanded and inequalities at the educational level have been partly eliminated. And so personal policy, with an eye on efficiency, has changed. While we agree with counsel that 'chill penury' should not 'repress their noble rage', still daring oar transitional developmental stage the sacrifice of technical proficiency at the altar of wooden equa-lity is an unreasonable injury the State cannot afford to self inflict The

technology of equal opportunity is to assume diffusion of talent and to afford in-service facilities, through relaxation of rules and otherwise, to the weaker members to acquire better skills.

The wise and tonic words of our learned brother, if we may say so with great deference, are however portentous. While striking balance between the long hunger for equal chance of the lowlier and the disturbing concern of the community for higher standards of per-B formance, the State should not jettison the germinal principle of equa-lity altogether. [The dilemma of democracy is as to how to avoid vali-dating :he abolition of the difference between the good and the bad in the name of equality and putting to sleep the constitutional command for expanding the areas of equal treatment for the weaker ones with the dope of 'special qualifications' measured by expensive and exotic ·degrees. These are perhaps meta-judicial matters left to the other branches of Government, but the Court must hold the Executive with· in the loading strings of egalitarian constitutionalism and correct, by judicial review, episodes of subtle and shady classification gros~~. violative of equal justice. That is the heart of the matter. That is the note that rings through the first three fundamental rights the peo-ple have given to themselves.]

Mini-classifications based on micro-distinctions are false to our egalitarian failth and only substantial ancl straightfqrwarcl classifica-tions plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality. If in this case Govern-ment had prescribed that only those degree holders who had secured over 70% marks could become Chief Engineers ancl those with 60% alone be eligible to be Superintending Engineers or that foreign degrees would be preferred we would have unhesitatingly voided it.

, The role of classification may well recede in the long run, and the finer emphasis on broader equalities implicit in the concluding thought of the leading judgment will abide. The decision in this ·case should not-and does not-imply that by an undue accent on qualifications the Administration can out back on the larger tryst of equalitarianism or may hijack the founding and fighting faith of social justice into the enemy camp of intellectual domination by an elite. The Court, in extrem~ cases, has to be the sentinel on the qui vive.

The Court, in

Appeal allowed.