JUDGMENT
S.B. Majmudar, Acting C.J.
1. These two petitions under Article 226 of the Constitution moved by different employees who are Deputy Mamlatdars in the revenue department of the State of Gujarat-working under the concerned Collectors of the Districts have raised grievances pertaining to their service conditions. As these grievances raise common questions for consideration, these petitions were heard together and are being disposed of by this judgment.
2. In order to appreciate the grievances of the petitioners, it will be necessary to note the background facts leading to each of these petitions.
3. Relevant facts concerning Special Civil Application No. 937 of 1987: 7 petitioners who are working as Deputy Mamlatdars under the first respondent Collector, Panchmahals District were originally appointed as clerks and they were subsequently promoted as Deputy Mamlatdars and according to them, they were working as such for a period ranging from five years to 12 years by the time they filed the aforesaid petition in this Court. The petitioners belong to subordidate revenue service which includes persons appointed as clerks, Circle Inspectors and typists in the lower division and also Deputy Mamlatdars and Circle Inspectors in the upper division. When the petitioners joined as clerks, they belonged to lower divisions of subordinate service. As per the departmental rules, to which we will make reference hereinafter, before an employee belonging to lower division of subordinate revenue service can be considered for promotion to the upper division and can be made Deputy Mamlatdar, he had to pass relevant revenue qualifying examination. Originally, such examination was prescribed by the State of Gujarat under the rules framed under the provisions of Article 309 of the Constitution named and stayled as ‘the Revenue Qualifying Examination Rules, 1970 (‘the RQE Rules’ for short). None of the petitioners had passed the said examination. However, these rules were subsequently replaced by another set of rules framed under Article 309 of the Constitution and they were named and stayled as ‘Gujarat Lower Revenue Qualifying Examination Rules, 1978’ as well as ‘Gujarat Higher Revenue Qualifying Examination Rules, 1978’ (‘LRQE Rules’ and HRQE Rules’ for short). As per the LRQE Rules, the concerned employee in the lower division of the subordinate revenue service viz., clerks, circle inspectors or typists had to pass LRQ examination in three chances before they could get eligibility for being considered for promotion as Deputy Mamlatdars. The petitioner’s case is that they passed the LRQ examination within prescribed chances and, therefore, as per the LRQE Rules, they were to be considered as regular candidates who had passed the examination within prescribed chances and within specified period. Still, however, the respondent authorities were treating them to have passed the said examination beyond specified period and were treating them as late latiffs. That stand was taken by the respondents on the ground that earlier, one junior of the petitioners Mr. Sanchawala who was working in the Collector’s Office had during the time RQE Rules were holding the field, applied for permission to appear in the examination somewhere in 1972. It is of course a fact that Mr. Sanchawala did not pass the said examination and ultimately passed LRQ examination in 1982 alongwith the petitioners. But it was held by the departmental authorities that the petitioner’s period for passing the examination started moment permission was granted to their junior Mr. Sanchawala in 1972 and that specified period was over when the petitioners passed LRQ examination in three chances. Hence, they cannot be said to have passed the examination within specified period and, therefore, they were treated as persons who had not passed the examination within prescribed chances and they were treated as late latiffs or irregular and that is how, their seniority in the Deputy Mamlatdar’s cadre was fixed vis-a-vis their erstwhile junior’s. It is this stand of the respondents which has a direct impact on the fixation of inter-se seniority of the petitioners on the one hand and their juniors on the other in the cadre of Deputy Mamlatdars. That has triggered off the present litigation. The petitioners in this connection have also made grievance regarding legality and validity of Rule 4 and proviso to Rule 5 of the LRQE Rules to which we will make reference hereafter. These provisions have been challenged because chances earlier availed of by the clerks under the old rules of 1970 have to be treated to be chances availed of under the LRQE Rules of 1978 and that seems to be the basis of the stand taken by the respondent authorities against the petitioners and consequently, these provisions are challenged on the ground of Articles 14 and 16 of the Constitution. In the light of these grievances of the petitioners, appropriate reliefs are sought for from this Court for declaring these provisions as ultra vires and for quashing and setting aside the seniority list at Annexure ‘G’ which is based, according to the petitioners, on this wrong stand on the part of the respondents, and a further prayer is sought that the respondents may be directed to treat the petitioners to have passed the requisite LRQ examination within prescribed chances and within specified period which would imply that they also passed as regular candidates. The petitioners had apprehended that by wrong fixation of seniority, they were likely to be reverted and hence, they moved the aforesaid writ petition for appropriate final relief as well as interim relief.
Facts relating to Spl. C.A. No. 3730 of 1987:
4. Two petitioners in these petitions are working as Deputy Mamlatdars under respondent No. 2-Collector, Kheda. Petitioner No. 1 joined the service of respondent-State on 16-3-1984 as a junior clerk. He was promoted to the Deputy Mamlatdar in October 1974 and except for short break, continued as such. The petitioner No. 1 has passed LRQ examination in December 1982. Earlier he had passed sub-service departmental examination in September 1968. Petitioner No. 2 started his service as a junior clerk on 12-3-1964. He was also promoted as Deputy Mamlatdar in October 1974. Except for short break, petitioner No. 2 continued as such since then. Petitioner No. 2 has also passed sub-service departmental examination in September 1968 and LRQ examination in December 1982. Both these petitioners earlier when 1978 Rules were in force, had appeared once in the said LRQ examination, but they could not pass the same. Thereafter, they appeared once again in RQ examination after LRQE Rules came into force in 1978 and according to them, they passed the said examination within prescribed chances. The petitioners contend that the departmental authorities arc wrongly insisting that the chances which the petitioners unsuccessfully availed of under RQE Rules, once had to be tagged on with the chances which the petitioners availed of under LRQE Rules and if that tagging is legal, the petitioners cannot be said to have passed LRQ examination within three chances but they will have to be treated as having passed within four chances. This stand of the department is based under proviso to Rule 5 of the LRQE Rules. As a consequence of the said stand, the petitioners are not treated to have retained their original seniority in the clerical cadre in the Deputy Mamlatdar’s cadre vis-a-vis their juniors. This has been done on account of non-application of Rule 9 of the Rules by the department and on application of Rule 7 instead, by the department in their cases. Under these circumstances, the petitioners apprehended their reversions from the posts of Deputy Mamlatdar and that has driven them to file these petition praying for a relief that first proviso to Rule 5 of the Rules should be declared unconstitutional and null and void and that they may be treated to have passed the examination within prescribed three chances. They have also prayed for a declaration that proviso to Rule 7 is also illegal, but this challenges will not survive as it is already repelled by a Division Bench of this Court and which decision has been upheld by the Supreme Court. Hence, the learned Advocate for the petitioners ultimately raised only the question of vires of the proviso to Rule 5 for our consideration in these proceedings. They have also prayed for consequential benefits flowing from the main prayer.
5. These contentions are resisted by the departmental authorities. In the light of the rival contentions canvassed before us by the learned Counsel for the respective parties, the following points arise for our consideration
(1) Whether the petitioners in Spl. C.A. No. 937 of 1987 can be said to have passed the LRQ examination within specified period or whether they can be said to have passed the same beyond specified period.
(2) Whether provisions of Rule 4 of the LRQE Rules are violative of Articles 14 and 16 of the Constitution.
(3) Whether proviso to Rule 5 of the LRQE Rules is violative of Articles 14 and 16 of the Constitution and hence void.
(4) Whether petitioners in Spl. C.A. No. 3730 of 1987 can be said to have passed the LRQ examination within prescribed chances.
(5) What final relief?
6. Before taking up discussion on these points seriatim, it is necessary to quickly glance through the relevant Rules regarding passing of RQ examination by the clerks before they can get eligibility for being promoted as Deputy Mamlatdars.
7. Statutory rules: As noted earlier, RQE Rules 1970 were framed by the Government notification in 1970, under proviso to Article 309 of the Constitution. As per Rule 4 thereof, every person of the lower division of the subordinate revenue service who is eligible for appointment to a higher post, shall be required to pass the examination within a period of three years after he had completed five years continuous service. As per Rule 5 such examination shall have to be passed in not more than three chances within the specified period. We are not concerned with additional chances available to SC/ST candidates as such question does not arise in the present proceedings. As per Rule 9 of the Rules, a peron who passed the examination within the specified chances and the specified period shall retain his original seniority in the upper division of the subordinate revenue service even if a person junior to him has passed the examination and also been promoted to the higher post earlier. A combined reading of Rules 4, 5 and 9 of the LRQE Rules projected a requirement for a clerk to pass the RQ examination within three chances within three years after he had completed five years continuous service. Thus, specified period was between five years and eight years of continuous service and prescribed chances were three, and if the examination was passed accordingly, then such clerk would retain his original seniority in the clerical cadre, even though he was promoted later on as Deputy Mamlatdar and can be placed above his juniors who might have been promoted earlier. It becomes, therefore, clear that if he had passed the said examination beyond specified period and beyond prescribed chances, he would not retain such seniority and would lose his seniority qua his junior who might have been promoted earlier. So far as this examination was concerned, a syllabus was prescribed by Rule 14 as per Annexure ‘C’ to the Rules. The said syllabus is required to be noted at this stage. It consisted of 10 papers of 100 marks each and comprised of various subjects-for which question could be set in these papers. It appeared to be a very comprehensive examination covering various subjects like Bombay Civil Services Rules, Prevention of Corruption Act, Bombay Budget Manual, Bombay Finance Rules, Indian Penal Code, Indian Evidence Act, Code of Criminal Procedure, Constitution of India, Gujarat Municipalities Act, Guj. Co-operative Societies Act, and other Acts.
8. In short, these papers required thorough study and preparation on the part of the clerks in the department before they could aspire to be considered for promotion to the post of Deputy Mamlatdar. These RQE Rules of 1970 underwent amendment in 1975 where the State of Gujarat in the name of the Governor of Gujarat in exercise of the powers under Article 309 of the Constitution, substituted Rule 4 of the RQE Rules by a new Rule 4:
9. Earlier Rule 4 of the Rules read as under:
4. Subject to the provisions of Rule 5 every person of the lower division of the subordinate revenue service who is eligible for appointment to a higher post, shall be required to pass the revenue qualifying examination within a period of three years after he has completed five years continuous service:
Provided that a person shall not be entitled to appear at the said examination unless he has passed the sub-service Departmental examination for Revenue Department or has been exempted from passing that examination:
Provided further that if the period for passing the examination as provided in this rule expires before the date of holding of the examination, in the case of a candidate who has a last chance at the said examination, the said period shall in the case of such candidate, be extended upto the date of declaration of the result of the next examination:
Provided further that the persons specified in this rule who have already completed five years service on the appointed date but were not permitted to appear at the examination shall be required to pass the examination during a period of three years from the appointed date.
Rule 4 by amendment of 1-1-1975 provided as under:
4. Subject to the provisions of Rule 5,
(1) Every person of the lower Division of the subordinate revenue service, who is eligible for appointment to a higher post, shall be required to pass the revenue qualifying examination after he has completed five years continuous service and within a period of three years from the date he is granted permission to appear at the Revenue Qualifying Examination for the first time strictly according to his seniority in accordance with the provisions of Rule 11.
(2) Every such person who has already completed five years service on the appointed date but was not permitted to appear at the examination shall be required to pass the examination during a period of three years from the date he is granted permission to appear at the Revenue Qualifying Examination strictly according to the seniority in accordance with provisions of Rule 11 for the first time after the appointed date: Provided that where a person does not seek under Clause (1) or (2) permission to appear in the examination the period of three years shall be completed from the date his junior is granted such permission:
Provided further that a person shall not be entitled to appear at the said examination unless he has passed the sub-service Departmental examination for revenue Department or has been exempted from passing that examination:
Provided also that if the period for passing the examination as provided in this Rule expires before the date of holding of the examination, in the case of candidate who has a last chance at the said examination, the said period shall in the case of such a candidate, be extended upto ihe date of declaration of the result of the next examination.
A comparison of Rule 4 of the old rules with the substituted Rule of 1975 shows that earlier there was no provision like proviso to Sub-rule (2) to Rule 4. That proviso was found in the substituted Rule 4 as per its substitution on 1-1-1975. Because of that substituted proviso, specified period of three years for passing the examination would begin for a clerk from the date on which his junior was granted permission to appear at the said examination.
10. Statutory rules of 1978: As noted earlier, RQE Rules were substituted by LRQE Rules, 1978 and HRQE Rules, 1978. We are not concerned with HRQE Rules in the present case as they pertain to eligibility for being considered for promotion from the cadre of Deputy Mamlatdars to the cadre of Mamlatdars. We are concerned with LRQE Rules which govern the clerks aspiring for promotion to the cadre of Deputy Mamlatdars. These LRQE Rules, 1978 as noted earlier were also framed under the proviso to Article 309 of the Constitution. They came into force on 18-3-1978. As per Rule 2(f), old rules were to mean rules for Revenue Qualifying Examination which were in force immediately before the appointed date. As per Rule 4 of the said Rules, it was provided that “Subject to the provisions of Rules 5(1) every person of the Lower Division of the Subordinate Revenue Service, who is eligible for appointment to a higher post, shall be required to pass the examination under these rules after he has completed five years continuous services and within a period of three years from the date he is granted permission to appear at the Gujarat Lower Revenue Qualifying Examination for the first time strictly according to his seniority in accordance with the provision of Rule II”. As per Sub-rule (2), “every such person who has already completed five years service on the appointed date but was not permitted to appear at the examination under the old rules, shall be required to pass the examination during a period of three years from the date he is granted permission to appear at the Gujarat Lower Revenue Qualifying Examination strictly according to the seniority in accordance with the provisions of Rule 11, for the first time after the appointed date”. The proviso to the said Sub-rule (2) reads as under:
Provided that where a person does not seek under Clause (1) or (2) permission to appear in the examination the period of three years shall be computed from the date his junior is granted such permission:
Provided further that a person shall not be entitled to appear at the said examination unless he has passed the sub-service Departmental examination for Revenue Department or has been exampted from passing that examination, but the Typists recruited prior to 1st April, 1974 shall be allowed to appear at the Gujarat Lower Revenue Qualifying examination without passing the sub-service Departmental examination:
Provided also that if the period for passing the examination as provided in this rule expires before the date of holding of the examination, in the case of candidate who has a last chance at the said examination the said period shall, in the case of such candidate be extended uplo the date of declaration of the result of the next examination.
Rule 5 of the said Rules provided that the examination shall have to be passed in not more than three chances within the specified period. Then follows the impugned proviso which reads as under:
Provided that the chances already availed of before the appointed date under the old rules shall be counted as having been availed of under these rules.
Rule 7 dealt with candidates who had failed to pass the examination within the specified period and chances and laid down that a person who has failed to pass the examination within the specified period and chances during the prescribed period, shall, notwithstanding such failure, be eligibles to appear at any time in such examination, on payment of an examination fee of Rs. 15/-. Then follows a proviso that he shall not be entitled to claim seniority over those persons who may have passed the examination earlier. That proviso has undergone a change subsequently had as we are not directly concerned with the subsequent amendment to proviso to Rule 7 we need not dilate on the same.
11. Then follows Rule 9 which lays down that a person who passes the examination within the specified chances and the specified period shall retain his original seniority in the upper division of the subordinate revenue service even if a person junior to him has passed the examination and also been promoted to the higher post earlier. These Rules 7 and 9 have been interpreted by the Division Bench of this Court in Special Civil Application No. 5007 of 1982 and other decided by Mr. P.S. Poti, C.J. and one of us (S.B. Majmudar, J.) on 16-12-1983. The said decision has been confirmed by the Supreme Court. These rules are once again interpreted by this very Bench and even that decision has been confirmed by the Supreme Court. These two judgments have in terms held that those clerks who are promoted as Deputy Mamlatdars after having passed the RQ examination within prescribed chances and within specified period would get benefit of Rule 9 seniority viz., their juniors who might have been promoted earlier. But such benefit will not flow to those clerks who are late latifs or irregulars, meaning thereby, those clerks whom have passed the LRQ examination beyond specified period and beyond prescribed chances. As per Rule 19 of the Rules, nothing in these Rules shall be deemed to have affected the existing rights of any candidates if any, accrued under the old rules. As per the proviso to Rule 19, it is laid down that permission to appear at the examination granted under the old rules shall be deemed to be permission granted for the purpose of Rule 4 of these Rules.
12. Aforesaid are the relevant statutory rules which have to be kept in view while dealing with the points arising for our consideration in the present cases. We may now turn to the pointwise discussion:
13. Point No. 1: So far as petitioners in Spl. C.A. No. 937 of 1987 are concerned, they are being treated by the department to have not passed the examination within specified period on the simple ground that in 1972, when old rules were holding the field, their junior Mr. Sanchawala sought for permission to appear in the said examination and, therefore, specified period for the concerned petitioners started from that date and ended in 1975 and hence, when they passed the LRQ examination in 1982, they can be said to have passed the examination beyond specified period. This stand of the department is based on the combined reading of proviso to Rule 19 of the LRQE Rules and the proviso to Sub-rule (2) of Rule 4 of the said Rules as well as proviso to Sub-rule (2) of Rule 4 of 1970 RQE Rules as amended on 1-1-1975. The said stand of the respondent authorities cannot stand scrutiny for a moment. Reasons are obvious. The petitioners’ junior Mr. Sanchawala was given permission by the then Collector to appear at the RQ examination in 1972. He of course did not appear at the said examination. At that time, even 1970 RQE Rules were not containing proviso to Rule 4 as it contained subsequently in 1975. It is impossible to visualise a position in which newly inserted proviso to Rule 4(2) in 1975 can ever cover a situation which had come into being three years prior thereto. Nothing is indicated in the substituted Rule 4 of the RQE Rules which came into force on 1-1-1975 that it had to be applied even to earlier situations in a retrospective manner even assuming that such rule could have been given retrospective effect. Neither expressly nor impliedly any such retrospective effect is discernible from this substituted Rule 4 of the RQE Rules, which as seen earlier was brought in force on 1-1-1975. Therefore, the permission granted to the petitioners’ junior Mr. Sanchawala to appear in RQ examination in 1972 had no impact whatsoever on the petitioners’ chances of appearing at the said examination nor had it any impact on the specified period available to the petitioners to pass such examination. Apart from this reason, there is second and a more formidable reason for not accepting the stand of the department. Even assuming that chance made available to Mr. Sanchawala can be said to have started specified period for passing the said examination for the petitioners in 1972 itself, the proviso to Rule 19 of the LRQE Rules cannot import the said situation for deciding the question whether the petitioners had passed the LRQ examination within specified period. All that proviso to Rule 19 lays down is that permission to appear at the examination granted under old rule will enure for the purpose of Rule 4 of these Rules. No such permission was ever granted to the petitioners to appear at RQ examination. Consequently, there is no occasion for treating the petitioner to have been granted such permission under Rule 4 of LRQE Rules. Once this position becomes clear, proviso to Sub-rule (2) of Rule 4 of the Rules also cannot come in the way of the petitioners for the simple reason that it would apply in cases where the petitioners’ juniors are given permission under Clause (1) or (2) of Rule 4 of LRQE Rules to appear at the said examination and the petitioners’ had not sought such permission for appearing at the LRQ examination under the said Rules. It is only in such eventualities that period of three years would start against the petitioners for passing LRQ examination under LRQE Rules. No such situation had occurred. On the contrary, Mr. Sanchawala and the petitioners passed simultaneously in 1982 the said examination. Consequently, neither the proviso to Rule 19 nor proviso to Sub-rule (2) of Rule 4 can be pressed in service by the department against the petitioners for treating them to have passed the LRQ examination beyond specified period. Miss Doshit for the respondent-authorities made it clear that it is not the case of the department that the petitioners had not passed the LRQ examination within prescribed chances but the stand of the department was that they can be said not to have passed the said examination within specified period because in 1972, their junior Mr. Sanchawala was given permission 10 appear at the RQ examination. As we have discussed earlier, this stand is clearly untenable and cannot be sustained. It must, therefore, be held that the petitioners have passed the LRQ examination within prescribed chances and within specified period, as it is not the contention of the department that leaving aside the permission granted to Mr. Sanchawala in 1972, the petitioners had otherwise not passed the LRQ examination within the period prescribed by Rule 4 of LRQE Rules. Once this conclusion is reached, it becomes obvious that the petitioners would be entitled to retain their original seniority in the clarical cadre as per Rule 9 of the LRQE Rules vis-a-vis their juniors and they will not be liable to be treated as candidates falling under Rule 7 of the LRQE Rules. The first part of point No. 1 will have to be answered in the affirmative and the second part of point No. 1 will have to be answered in the negative, meaning thereby, point No. 1 will have to be answered in favour of the petitioners and against the department.
14. Point No. 2: So far as this point is concerned, we fail to appreciate how Rule 4 can be said to be violative of Articles 14 and 16 of the Constitution. It lays down that subject to Rule 5, every person of the lower division of the subordinate revenue service has to pass the departmental examination for promotion to higher post within prescribed period after five years’ continuous service. Before a clerk can appear at the examination after five years of service and within three years, he has to pass the said examination. Passing of such examination has a direct impact on the efficiency of the incumbent in the higher cadre of revenue service and it cannot be said that the said provision is in any way arbitrary or discriminatory. All clerks similarly situated have to appear at the said examination for being considered eligible for being promoted to higher cadre of Deputy Mamlatdars. This reasonable classification of employees has direct nexus with the objects sought to be achieved thereby, viz., efficiency in the administration of revenue department by manning higher cadre posts. The said rule cannot be found fault with cither under Article 14 or 16 of the Constitution. Point No. 2 is answered in the negative, against the petitioner and in favour of the department.
15. Point No. 3: So far as this point is concerned, the learned Advocate for the petitioners in Spl. C.A. 937 of 1987 had nothing more to urge as he was succeeding on point No. 1. However, he alternatively submitted that the said provision is ultra vires Articles 14 and 16. Mr. Anand for the petitioners in Spl. C.A. No. 3730 of 1987, however, canvassed this point vehemently for our consideration as its decision will have a direct impact on the fate of the petitioners represented by him. Mr. Anand raised the following submissions in support of this contention:
(i) Proviso to Rule 5 has effect of hostile discrimination as far as employees like the petitioners are concerned who have passed the LRQ examination in three or less chances.
(ii) Impugned provision treats unequals as equals and equals as unequals as examination of RQ UNDER THE OLD RULES and examination of LRQ cannot be treated at par.
(iii) Proviso to Rule 5 destroys the very basis of classification of LRQE and HRQE and, therefore, it introduces irrational classification which cannot stand scrutiny of Articles 14 and 16 of the Constitution. Miss Doshit for the departmental authorities on the other hand submitted that there is nothing wrong with the proviso as all the clearks who want to be promoted as Deputy Mamlatdars have to appear at the said examinations under the scheme of LRQE Rules and three chances are available to every clerk to pass the qualifying examination. Now whether the examination is LRQE or RQE would make no difference when all clerks are treated equally so far as chances for passing the said examination go. If a clerk had already availed of one chance under old RQE Rules, there is nothing wrong if that chance is tagged on for such candidate and he is said to have passed the qualifying examination within prescribed three chances if he had passed RQE within two more chances. That the chance which he availed of under old rules cannot be totally ignored as that would give more favourable treatment to some of the clerks who have earlier appeared in RQ examination and failed and would introduce hostile discrimination against clerks who were never permitted to appear under the RQE Rules.
16. Having given our anxious consideration to these contentions, we find that proviso to Rule 5 cannot stand scrutiny on the anvil of Articles 14 and 16 of the Constitution. Firstly, it must be kept in view that revenue qualifying examination which was prescribed as per 1970 RQE Rules comprised of 10 papers. As per Annexure ‘C which we have mentioned above, it is a quite comprehensive examination covering number of subjects in which the candidate had to obtain proficiency. To recapitulate, it was examination of various subjects comprising 10 papers of 100 marks each, viz. 1000 marks in all. This examination was found to be very harsh and beyond capacity of an average clerk in the revenue department. It is precisely for that reason that the State Authorities in their wisdom bifurcated this examination into two parts (i) LRQ Examination as per LRQE Rules and (ii) HRQE examination to be passed by the Deputy Mamlatdars for getting eligibility for promotion to yet another higher cader of Mamlatdars. So for as LRQ examination under the 1978 Rules is concerned, as per Annexure ‘C’ to the LRQE Rules, framed as per Rule 14 of the Rules, LRQ examination is to consist of only five papers of 100 marks each. It is not in dispute that these five papers comprised of part of old RQE syllabus and the rest of the papers were made to comprise of HRQ examination alongwith other papers. Thus, rigour of RQ examination was reduced to half when syllabus of LRQ examination was prescribed under the LRQE Rules. Such type of easier examination was prescribed for all clerks under the LRQE Rules. The petitioners had not passed RQ examination. Easier examinating prescribed by the LRQE Rules could be passed within three chances by all candidates who had not passed earlier examination. If that is so, there was no reason why the rule making authority can discriminate between such clerks similarly situated and can lay down that those who had made unsuccessful attempts earlier for passing RQ examination should get disadvantage of such earlier unsuccessful chance being carried forward for deciding the question whether they had passed the LRQ examination within three chances. An illustration may be considered for highlighting the situation. Clerk A may have made a futile attempt to pass RQE of 1000 marks. Clerk B did not make such attempt and was not permitted to appear at RQE earlier. Both appear at LRQE of 500 marks and pass together. As per the impugned proviso, A will be treated to have passed LRQE in 2 chances while B will be treated to have passed it at first chance when in fact both appeared at RQE only once and cleared all the 5 papers of 500 marks. This classification ex-facie is unreasonable and has no nexus to the object of achieving efficiency in the administration of the revenue department id promoted category of Deputy Mamlatdars.
There appears to be no rhyme or reason for sustaining such type of classification as envisaged by the proviso to Rule 5. No rational explanation is discernible for such classification. The grievance of Mr. Anand that the proviso has the effect of hostile discrimination so far as employees like the petitioners who have also passed the LRQE within three chances visa-vis those clerks who had never attempted earlier to pass RQE and who have passed LRQE, WITHIN THREE CHANCES is well sustained. The formidable objection to the proviso is to the effect that before chances under the old rules can be equated with chances under the new rules, it must be shown that chances are of similar nature, otherwise unequals would be treated equally. We have already discussed earlier the rigorous nature of RQE and its syllabus and more concessional and lighter nature of syllabus of LRQE. In fact, almost 50% rigours of RQE is reduced while prescribing syllabus for LRQE. Consequently, chances under the old RQ examination rules can never be compared or equated with chances under the LRQE Rules and still the proviso provides that chances already availed of shall be counted as having been availed of in these rules, meaning thereby, it directs that if a clerk has appeared in 10 papers of total 1000 marks mentioned in RQE Rules and has failed to pass the said examination, he will be treated to have failed in LRQ examination which comprised of only 500 marks and five papers. It becomes apparent therefore that the proviso treats unequal chances as equal. It clearly violates the mandate of Articles 14 and 16 of the Constitution and cannot stand scrutiny on the anvil of these Articles.
17. It is equally apparent that proviso also teats equals as unequals is a clerk who appears at the LR.Q examination comprising of five papers of 500 marks in all and passes within three chances can be said to be equal to another clerk who passes the same LRQ examination within three chances when it also comprises of five papers of 500 marks. Both these clerks have not passed the earlier examination under the old rules. But the proviso mandates that for one set of clerks who had earlier failed in RQ examination which was of entirely a different nature, the chances which they availed of earlier shall be treated to be chances under the present examination rules and, therefore, they will be treated to be forming a separate class. This type of artificial sub-classification of clerks who had earlier failed in RQ Examination has no rational nexus to the object sought to be achieved. The classification seeks to treat equals as unequals. Thus both on the ground that the proviso treats unequal chances as equal chances and also treats equally situated candidates as unequals, it does not stand scrutiny of Articles 14 and 16 of the Constitution and must be held to be null and void. It is equally true that the exercise of drawing equation between chances availed of for passing RQ examination and chances for passing LRQ examination in its turn necessarily destroys the very difference and classification made by the State Authorities in their wisdom between the rigorous RQ examination on the one hand and more liberal and concessional LRQ examination on the other. This distinction gets totally destroyed when we come to the proviso to Rule 5. Therefore, the impugned proviso introduces ex-facie irrational classification which cannot fit in with the very concept envisaged by the rule making authority while enacting LRQ Rules and becomes totally arbitrary and void even on that ground. It is not possible to agree with the contention of Miss Doshit that all that the rules prescribed WAS THAT THE CONCERNED CANDIDATES WHO HAD NOT PASSED THE EXAMINATION EARLIER HAD TO PASS THE ELIGIBILITY examination within three chances and if they had availed of one chance earlier, it is to be counted while considering the remaining chances for the candidate for getting total three chances for eligibility. This contention could have been sustained if the old rules prescribed an examination which was almost analogous to the examination under the present LRQE Rules. But as this is not so, this submission cannot be of any avail. For all these reasons, therefore, proviso to Rule 5 is found to be violative of Articles 14 and 16 of the Constitution and has to be treated as null and void. Point No. 3 is an answered in the affirmative and in favour of the petitioners and against the department.
18. Point No. 4: In view of our decision on point No. 3, it becomes obvious that the impugned proviso to Rule 5 is not legally available to the authorities for holding that the petitioners had passed LRQ examination beyond prescribed chances merely because they had earlier failed to pass RQ examination once. If proviso is out of way, then there is no dispute between the parties that the petitioners had passed LRQ examination with in three chances. It must, therefore, be held that they had passed eligibility examination, viz., LRQ examination within prescribed chances and within specified period and, therefore, they were entitled to the benefit of Rule 9 of the LRQE Rules and cannot be treated to be candidates falling under Rule 7 of these Rules. Point No. 4 is answered in the affirmative, in favour of the petitioner and against the department.
19. Point No. 5: As a result of the discussion on the above points, it becomes obvious that both these petitions are required to be allowed.
So far as Spl. C.A. 937 of 1987 is concerned, prayer 11 (A) will stand granted so far as vires to proviso to Rule 5 of LRQE Rules is concerned. However, it will stand rejected so far as challenge to Rule 9 of the Rules goes. So far as prayer 11(B) is concerned, a direction will be issued to the respondents not to enforce seniority list insofar as it is based on department stand that the petitioners are late latifs and are not entitled to benefit of Rule 9. As a consequence, reversion orders against them will stand quashed and set aside. Direction will also be issued to the State to decide the question of inter se seniority of the petitioners with other concerned Deputy Mamlatdars by treating the petitioners to have passed the examination within three trials, i.e., within prescribed chances and specified period and to refix the seniority of the petitioners and other concerned Deputy Mamlatdars accordingly and thereafter to effect reversion, if necessary in accordance with law and in the light of such refixed seniority keeping in view the division bench judgment of this Court in Spl. C.A. No. 5007 of 1982 decided on 16-12-1983 and later division bench judgment in Spl. C.A. No. 4615 of 1986 decided on Nov. 1990. Rule issued in this petition is made absolute to the aforesaid extent with no order as to costs.
20. So far as Special Civil Application No. 3730 of 1987 is concerned, prayer 13(A) for striking down first proviso to Rule 5 will stand granted. So far as prayer 13(B) is concerned, the petitioners will be treated to have passed LRQ examination within prescribed chances and within specified period. So far as prayers 14(C) and (D) are concerned, they deal with proviso to Rule 7. This challenge cannot succeed in view of decisions of the division bench judgments referred to above. Hence, prayers 13(C) and (D) will stand rejected. So far as prayer 13(E) is concerned, it is granted and respondents are directed to make available to the petitioners all benefits in service including pay fixation, future promotion etc. on basis that they had passed LRQE within prescribed chances and specified period. Rule issued is made absolute to the aforesaid extent with no order as to costs.