JUDGMENT
Rajendar Sachar, J.
1. The writ petition is a continuation of a grievance which started with the writ petition No. 3375/74.
2. The petitioner and respondent No. 3 are confirmed Superintending Engineers and are members of the service under Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954 (hereinafter to be called the “1954 Rules”). Respondent No. 3 had been promoted as an Additional Chief Engineer on 9-7-70 and the petitioner on 24-7-71. Subsequently both of them had been selected by the Departmental Promotion Committee in March/April, 1972. The order of 19 5 72 appointing the petitioner and respondent No. 3 shows the petitioner (sic) to respondent No. 3. The petitioner had filed writ petition No. 3375/74 challenging the order on the ground that the seniority had been shown wrongly and that he vat entitled so be appointed earlier against the merit vacancy in 1970. I have in the connected writ petition today held others wise against the petitioner. That writ petition was filed on 16-12-74. Earlier to this a post of Chief Engineer having fallen vacant respondent No. 3 was promoted to this on (sis) basis on 4-3-74. The petitioner in the said writ petition had made a grievance that not only during the pendency of the petition respondent No. 3 was being shown (sic) had also got a further advantage by being promoted as Chief Engineer while the post should have gone to the petitioner. On 17-12-74 a stay order had been given by this Court that during the pendency of the writ petition respondent No. 3 will not be confirmed as Chief Engineer. On 18-3-75 this Court further directed the Government to hold a meeting of the Departmental Promotion Committee for the urpose of promotion to the post of a Chief Engineer and directed the case to be put up 4 weeks later. On the next date i.e. on 21.4.75 a copy of the order dated 19-4-75 by which respondent 3 had been selected as Chief Engineer by Departmental Promotion Committee was produced and the stay was therefore rejected. This apparently led the petitioner to file the present writ petition impugning the order dated 19-4-75 by which the respondent No. 3 has been promoted as Chief Engineer by virtue of Rule 26 of the 1954 rules.
3. Part V deals with the procedure for recruitment by promotion. Rule 23(1) provided a criteria for selection of those eligible on the basis of seniority-cum-merit. Sub-rule (2) of Rule 23 provided for various criteria which was to be born in mind in selecting the candidates for promotion. On 14-12-65 the Governor of Rajasthan in exercise of the powers under Article 309 of the Constitution made the Rajasthan Various Services (Amendment) Rules, 1965 (hereinafter to be called “the 1965 Rules”). By the said rules Rule, 1965 deleted from the 1954 Rules and a new rule viz. Rule 24-A was inserted. It may be mentioned that Rule 24A(1) provided that appointment by promotion to posts in the service shall be made by selection strictly on the basis of merit and on the basis of seniority-cum-merit in proportion of 50:50 (this was however changed to the proportion of 1:2 by notification of 26-8-66) Rule 26 which was substituted from 26-4-67 provided for appointments including officiating appointments to senior posts including that of the Chief Engineer to be made on the basis of merit and seniority cum-merit in the ratio of 1:2.
Rule 26(1) from 1967 read as follows.-
26(1) Appointment to Senior post. Appointment (including in an officiating/temporary capacity) to senior, post i.e. Executive Engineer, Superintending Engineer. Additional Chief Engineer, and Chief Engineer, shall be made by Government from amongst the members of the Service on the basis of merit and seniority cam-merit in the ratio of 1:2 on the re commendation of a Committee which shall consist of the following:
On 16 6-74 the Governor of Rajasthan made amendments in the various Service Rules By the mid amendment it was stated that in the Service Rules specified in Col 2 of the Schedule appended hereto, the existing Colon (:) or fullstop (.), as the case may be, occurring at the end of the Sub-rule (1) of the Rule mentioned against each in Col 3 shall be deleted and thereafter the following shall be added, namely-
except that the highest post in the Service when filled by promotion shall always be filled by selection on the basis of merit alone out of eligible persons.
SCHDULE
S. No. Name of the Number of rule
1 2 3
3. The Rajasthan Service of Engineers
(Irrigation Branch) Rules, 1954 24A
The above amendment thus and the effect of amending Rule 24A(1).
4. On 13.6 74. the following proviso substituted occurring in Rule 24A(2) and read as under;
Provided that for the promotion within the Service against the merit quota only such of the persons shall, unless a longer period in prescribed elsewhere in these rules, be eligible who have put in not less than six years' service on the first day of the month of April of the year of selection on the post from which promotion is to be made.
5. On 5.4.76 after the existing proviso to Rule 24A(2) (to be calledt he impugned proviso) was the following new provisions/inserted ; and the second proviso reads as under:
Provided further that the persons, who were promoted after regular selection by the Departmental Promotion Committee on a category of post on the basis of merit, shall be eligible for subsequent promotions to the next higher category of post on the merit only when they have put in at least six years' service on the post to which they were list so promoted on the bas is of merit.
The vires of this has been challenged in this writ petition.
6. It is obvious that from 16-5-74, on wards the highest post in the service i.e. Chief Engineer under the 1954 Rules which could be filled prior to the notification of 16-5-74 both by merit as well as seniority-cum merit has now to be fill led on the basis of merit atone. So far both sides are in agreement but it ends there Ma Calla maintains that the exception of 16-5-74 must be read at the end of the proviso to 24A(1). Thus read it will not permit the appointment of Chief Engineer to be made on the bads of seniority cum merit even. If no person is available for appointment by promotion strictly on the basis of merit. I cannot agree. It is read at the end of Proviso to Rule 24A(1) anamolous result will follow in as much while in the main Rule 24A(1) will continue to provide that the appointment by promotion to posts in the service shall be on the basis of merit and on the basis of seniority cum-merit in the proportion of 1:2, it will not be permissible to make the appointment by promotion on the basis of seniority cum-merit even if the appointing authority is satisfied that suitable persons are not available for appointment by promotions be a clash between the main Sub-rule (1) of Rule 24A prior to the proviso, the result will be that all other senior posts other than the post of Chief Engineer will continue to be made by the rules on merit and seniority-cum merit in the proportion of 1:2, only the post of a Chif Engineer will have to be filled by selection on the basis of merit along. The emphasis and mandate will be to fill the post Chif Engineer by merit and there cannot be any exception unless Proviso to Rule 24A(1) was attracted. Obviously the proviso cannot be invoked arbitrarily and the authorities whenever they do so will necessarily have to do so on certain reasonable and set basis and principles. I am therefore satisfied that on a rule of harmonious construction the exception of 16-5-74 has to be read just before the Proviso in Sub-rule (1) of Rule 24A. So read if the appointing authority is satisfied that suitable persons are not available for appointment by promotion strictly on the basis of merit the said post can be filled on the seniority-cum-merit. In that view the appointing authority is not totally debarred from filling the post of Chief Engineer on the basis of seniority cum-merit subject of course to the condition of Proviso to Rule 24A(1) being satisfied.
7. Now the respondent No. 3 has been selected by Department Promotion Committee on the basis of seniority cum-merit and the said action could be permissible if appointment could not be made on the basis of merit alone as is required by exception of 16-5-74, and this bring us to the real grievance of the petitioner in having been denied this appointment.
8. The Departmental Promotion Committee met in April, 1975. It appears that there ware two posts of Chief Engineer for which selections were required to be made. I am told that one post of Chief Engineer was available en that date and one post was expected to fall vacant on 31-7-75 The Departmental Promotion Committee when it met in April, 1975, reached the conclusion that the petitioner is meritorious and deserves to be selected on the basis of merit. The difficulty however it faced was that by then impugned proviso had come into fore. Applying that impugned proviso to the present case it would mean that as the petitioner had been promoted on the basis of merit as Additional Chief Engineer in the year 1972 by the Department Promotion Committee, he could not be eligible for being considered for appointment on the basis of merit for ‘he subsequent promotion to the post of Chief Engineer till 1978 Faced with this difficulty the Departmental Promotion Committee recommended that as two posts should not remain vacant both respondent No. 3 and the petitioner be promoted on the basis of seniority euro merit against those two posts. As there was only one post existing in April, 1975 a notification was issued appointing respondent No. 3 as Chief Engineer, as he was admittedly senior to the petitioner. This is the order which has brought the petitioner to Court, To complete the statement of facts it may be noted that after filing of the writ petition the petitioner we asked to hold additional charge of Chief Engineer from July, 1976, The petitioner has also since been promoted as Chief Engineer with effect from 26-5-76, in pursuance of the decision taken by the Departmental Promotion Committee at its meeting held in April 1975.
9. There is no dispute that if amendment made in Rule 24 A of the 1954 Roles on 5-4-75 is valid, the petitioner was rightly excluded from consideration en the basis of merit. It is also equally true that if the amended Rule was out of the way, the petitioner grievance would have subsistence. It is this for reason that the petitioner impugns the amendment of 5-4-75 as being violative of Article 13 of the Constitution and it is this challenge which now must be considered.
10. The respondents through their counsel Mr. Mridul and Mr. Mathur bad sought to urge that as the petitioner bad since been appointed as Chief Engineer in May, 1976 no grievance survives. This however is not accepted by Mr. Calla who maintains that the petitioner was entitled to be appointed as Chief Engineer in April, 1975 when the post of Chief Engineer tell vacant. But as the impugned Proviso stood in the way of appointment of the petitioner it is necessary to determine its vires. A strong attempt made by the counsel for the respondents to persuade me not to determine the vires of the impugned proviso by urging that even if it is held bad the petitioner would derive no benefit. It is urged that even assuming that the petitioner was to be given the appointment in April, 1975 on the basis of merit he would nevertheless rank junior to respondent No. 3 because of Rule 24A(8) which-provides that amongst persons appointed in the same category of posts during the came year the person appointed on the basis of seniority-cum-merit shall rank senior to those appointed by promotion on the basis of merit. It is thus maintained that even if respondent No. 3 was to be appointed as Chief Engineer in July, 1975 on the basis of seniority-cum-merit he would continue to rank senior to the petitioner During the course of beating I was also informed by Mr. Mathur for the State that though there was some hesitation initially, in the Government agreeing to give the appointment to the petitioner as Chief Engineer from July, 1975, tie was now instructed to state that independent of this petition the Government has reconsidered its view and had decided to appoint the petitioner from July, 1975 w en the second vacancy arose. This was also naturally emphasised by the respondent’s counsel to maintain that the appointment of the petitioner and respondent 3 will be in the same year and no harm or injustice would be done to the petitioner if he was appointed against the April vacancy. One of the reasons suggested in the writ petition that the appointment as a Chairman of the Rajasthan Canal Board which the petitioner had said goes to a senior person, it was urged, was also not a real grievance (apart from the fact that the petitioner would in any case remain junior even if he was appointed in April, 1975 vacancy) but also because the said post was not a cadre post and was a post outside the service and it was not essential that appointment be made from the Chief Engineer and that many a time appointments had been made of Chairman from Indian Administrative Service and from outside also. I am not impressed with these submissions, so as to decline to determine the vires of impugned proviso. Whether the petitioner even if he succeeds in the writ petition will rank senior or that his success in the petition will not be of any substance to him are matters too much in the realm of speculation for this Court to take into account. It may be if the petitioner succeeds he may not ultimately get any real benefit because of what the respondents say or he might be substantially benefited, as the petitioner insists. The present is not a case of futile writ in the sense that the respondent No. 3 had retired and therefore hardly any benefit could come to the petitioner. Both the petitioner and respondent No. 3 are in service. Evidently a matter of seniority is of deep concern to a Government servant. I cannot therefore refuse to examine the challenge to the vires of the impugned proviso.
11. Mr. Mridul had urged that the amendment of 16-5-74 to Rule 24A could be of no help to the petitioner because the appointment of Chif Engineer is made under Rule 26(1). This argument was raised on the assumption (though it was net so mentioned in the return and only oral submissions were mad) that if post of a Chief Engineer could be given on the basis of merit and seniority-cum-merit as mentioned in Rule 26(1); the post falling vacant in April 75 would be in the quota of seniority cum-merit. This was stated on the basis of the fact that in 1973 Mehra had got the post of a Chif Engineer appointments, the next two posts have to go on the basis of seniority-cum-merit and both of them will be filled by respondent 3 and the petitioner on seniority-cum-merit basis with the result that the petitioner will have to remain content with the post which fell vacant in July 1975 as he could only get the second post falling vacant being junior. I am afraid the argument is unacceptable. If the exception inserted by amendment dated 16.5.74 is only to be read in Rule 24A the result will be not only absurd but completely uri’1 intended. It is not disputed that the only post of direct recruitmentin1 the service under the 1954 Rules is that of Assistant Engineers. All the other posts are to be filled by promotion on the basis of merit and on the basis of are to be filled by promotion on the basis of merit and on the basis of seniority-cum-merit. Rule 26(1) talks of appointment to the senior posts i.e. from Executive Engineer onwards to the Chief Engineers; if all these posts in the Executive Engineer onwards to the Chief Engineers; if all these posts in the said rule are to be excluded from the exception brought in by the notification said rule are to be excluded from the exception brought in by the notification of 16-5-74 the only posts that will fall to be filled up by merit will be of the Assistant Engineer. The argument has stated to be rejected because the whole purpose of the amendment of 16-5-74 is to provide that the highest post in the purpose of the amendment of 16-5-74 is to provide that the highest post in the service shall be filled up on the basis of merit alone. There would hardly be any sense in providing that the post of the Chief Engineer in the service. There in just no escape from the conclusion that under the 1954 Rules the appointment by promotion of Chief Engineer had to be made on the basis of merit unless of course the proviso to Rule 24A was applicable. No in the present instance it is not the case that the Departmental Promotion Committee proceeds to invoke the proviso to Rule 24A it found no suitable person for appointment by the promotion strictly on the basis of merit. On the contrary, it did find the petitioner suitable on the basis of merit and the only reason why it did not recommend his name was because the Departmental Promotion Committee felt itself bound, as indeed it thus because of the impugned proviso that it opined that no suitable candidate for appointment by promotion on the basis of merit was available, and therefore recommended the appointments by promotion to be made on the basis of seniority-cum-merit. That inevitably must entail the question of the vires of the impugned proviso.
12. The position thus is that originally a proportion of 1:2 for the post to be filled by promotion on the basis of merit and seniority-cum-merit was fixed On 16-5-74, the Government feels so strongly that the-highest post should be filled by merit that it introduces the exception in Rule 24A providing that the highest post shall always be filled by merit. There has thus been a considerable rethinking in the matters of promotion and the Government seems to have come round to the view that the wooden application of seniority rigidly and uniformly can be a great damper to the meritorious and gives no impetus the senior persons to show their best. Whatever the reason, the Government has now indicated its policy to see that the highest post by promotion goes strictly on merit. The impugned proviso however seems to ring a discordant note. Applying the impugned proviso in the present case it means that the petitioner who bad got his promotion as Additional Chief Engineer on the basis of merit in 1972 will not be eligible for consideration for a subsequent promotion as for the post of a Chief Engineer on the basis of merit until 1978. The justification given in the return is that the idea behind this Rule is that a person should not get double jump in quick succession on the basis of the, same record as that would cause a lot of frustration in the staff and would impair the efficiency. The Rules have to be made in such a manner as to maintain a proper balance between rival claims in the cadre while in ananas to be rewarded, experience has also to be given its due. Thus when the petitioner was selected for the post of Additional Chief Engineer on the basis of merit be could not be allowed to have a double jump on the basis of she same record for the selection on the basis of merit again within six years. This Rule has been amended in all services. It is also emphasised in the return that the Rule making authority while making service rules has to take into account several factor and while merit has to be given due weight, experience cannot be altogether given a go by and that the whole idea behind the amendment was that the persons should not get quick promotions in succession on the basis of the same record. The analysis of the long reply really basis down to copy one explanation, namely that as a person has got promotion on the basis of merit in the lower post, be should not again get a further promotion on the basis of merit until he has held the lower past for at least 6 years. It is worthy to note that this requirement of working in the lower post for 6 years before being eligible for next promotion does not apply to promotion, on the basis of seniority-cum merit. If assuming the petitioner bad been appointed on the basis of seniority-cum-merit as an Additional Chief Engineer in 1972 like respondent No. 3, it is net disputed that be would undoubtedly have been eligible for being considered for promotion as Chief Engineer on the basis of merit in 1975, Thus respondent No. 3 who was Jess meritorious than the petitioner when selections took place for the post of Additional Chief Engineer in 1972 would be eligible for being considered for further promotion to the post of Chief Engineer both on the basis of merit and also on the basis of seniority cum merit. Can there be any rational explanation for this official distinction between these two categories one selected on the basis of merit and other on the basis of seniority-cum-merit for the same pos? The argument that comparatively Youngman joining the service might on the basis of promotions on merit rise very high gives me no if he in fact is deserving of it on merit. In reality there is no such risk Under the 1954 Rules promotion upto the post of Superintending Engineer requires at least 5 years experience as Assistant Engineer and another 5 years as Executive Engineer before one can be considered for further promotion, as Superintending Engineer. So sufficient experience is pained before a person becomes eligible for further promotion as Additional Chief Engineer, etc., whether on the basis of merit or on the basis of merit or on the basis of merit-cum-seniority. One of the obviously and understandable situation can arise if the impugned proviso is valid. It may happen that the petitioner’s juniors in service who might have been promoted subsequent to him as Additional Chief Engineer on the basis of seniority-cum-merit would be to be considered for promotion as Chief Engineer on the basis of merit. The result would then be that though the petitioner is more meritourious and is also senior, nevertheless he would have to be ruled out on the fortuitous happening that he got the promotion as Additional Chief Engineer on the basis of merit and not against seniority-cum-merit quota. Not only that but the respondent No. 3 who was also promoted by 1972 on the basis of seniority-cum-merit was eligible to be promoted on was be promoted on the basis of merit in 1975 if found by the Departmental Promotion Committee. The fact that he has not been so found suitable on merit is besides the point. The fact that he has not been so found suitable on Promotion Committee. The fact that he has not been so found suitable on merit is besides the point. The fact that he has not been so found suitable on merit is besides the point. The real pinch and arbitrariness is that though both respondent No. 3 and the petitioner were found eligible for promotion as Addl. Chief Engineer by the same Departmental Promotion Committee in 1972 the petitioner would because of the impugned proviso be treated unequally with the result that while respondent No. 3 would be considered eligible for the next promotion to the post of Chief Engineer the petitioner would be denied the same and only for the reason that he petitioner was found more meritorious than respondent No. 3 of both the occasions when sections were made meritorious than respondent No. 3 on both the occasions when selections were made for post of Additional Chief Engineer and for that of Chief Engineer. Does this discrimination not per se appear unreasonable and without any basis.
13. One of the strong argument urged by the respondent is that the Government does not wish that there should be a frustration amongst the seniority by quick promotion being given to the juniors I fail to appreciate the argument. If the Government is of the view that seniority is the better criteria than merit there is nothing to stop it from so amending the Rule and providing seniority as the criterion Apparently the Government thinks otherwise as it has by the notification dated 16-5-71 provided that the highest post i.e. Chief Engineer in the service shall always be filled by selection on the basis of merit. Evidently when the Government has decided that the post of a Chief Engineer should be filled by merit the artificial restriction placed by the impugned proviso goes directly counter to and is inconsistent with the very intention of the 1954 Rules Exception incorporated on 18-5-74 in Rule 24A(1) clearly emphasises the significance of the criteria of merit alone and the limitation sought to be put by the impugned proviso making a person ineligible for the next promotion simply because he had already got a promotion by merit in the lower category of post from which he is to be promoted seems to me to be based on no rational principle. I am aware that there is a presumption of the constitutionality of the enactment and the burden in on the petitioner to show that the classification is not reasonable and further the judicial scrutiny can extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It can not extend to embarking upon a nice or mathematical evaluation of the basis of classification, for were such an inquiry permissible it would be open to the courts to substitute their own judgment for that of the legislature1 or the Rule making authority on the need to classify or the desirability of achieving a particular object vide State of J & K v. Trilokinath (1974) (1) S.L.R. 536. But as stated in Ramakrishna Dalmia v. Justice Tendolkar though no doubt there is a presumption of constitutionality the same cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminatory legislation is to make the protection of equally clause, a mere rope of sand, in no manner restraining State action vide . The State of West Bengal v. Anwar Ali and Anr.
14. Mr. Mridul has alno drawn my attention to the comments in FRANK E COOPER (Volume Two from page 792 to 793) to the effect that “the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions, That they might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion.” Mr. Mridul further referred to FRANK E COOPER (Volume Two-page 654 to 655) to the effect “Second he must establish that a clear legal right has been violated If there is any doubt as to the existence of the asserted right, his application for the writ may be dismissed.” But it is also equally true that “Mini-classification based on micro-distinctions are false to our egalitarian faith and only substantial and straight forward classifications plainly promoting relevant goals can have constitutional validity. To over do classification is to undo equality.” vide 1974 (1) SLR page 536 State of J & K v. Trilokinath.
15. Mr. Mridul refers me to State of Gujarat v. C.G. Desai (1974) (1) SLR 420 to show that in that case the promotees were entitled to count their service prior to their selection in Class II for further promotion while the direct recruits were not given that facility, and this classification was upheld by the Supreme Court. That case is distinguishable. There the court found that direct recruits and promotees ware distinct groups and the classification had a historical background and national basis as for a considerable time recruitment by promotion from the ranks of temporary officiating Deputy Engineers to Class II service remained frozen with the consequent stagnation and loss of incentive in the service. I was also found that while promoters have only one chance of getting into class II service, as against three available to the direct recruits. The reason why the classification was upheld was because the promotes were being denied for a long time any promotions and if they were not to be allowed to come for selection they would have arare chance of ever getting promotion as officiating Executive Engineers. It is apparent that the case was decided on its own peculiar facts.
16. In Mervyn Continho v. Collector of Customs Bombay there were two sources of recruitment to the post of Appraisers direct recruits as will as the promotes, thereafter the next promotion was to the post of Principal Appraisers. The rule however provided that directly recruited Appraiser even though promoted subsequent to the promotee Appraisers as a Principal Appraisers would rank senior to the later if former was senior as an Appraiser. The Supreme Court held such method denied quality of opportunity of employment to the Appraisers and said:
The present method by which the respondent outs a direct recruit from the grade of Appraiser, though be is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraisers roust be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers grade is a direct recruit or a promotee.
17. In Ramchandra Shanker v. State of Maharashtra 1974 S.L.W.R. 48 both directly recruited Mamlatdars and Mamlatdars promoted formed a class. In that case Rule 1 provided for appointment to the post of Deputy Collector shall be made either by nomination or by promotion of suitable Mamlatdars, the ratio of appointment by nomination and promotion being 50:50. Second proviso to Rule 1 (which was held Invalid) stated that half the vacancies reserved for appointment by promotion shall be filled by directly recruited Mamlatdars who have put in at least seven years service in the posts including the period spent on probation, Thus vacancies in Deputy Collector was to be filled up amongst others 25% directly recruited Mamlatdars who have put in seven years 25% from Mamlatdar promoted from the lower ranks in revenue department. Objection was raised to this second proviso to Rule 1 which discriminated between the directly recruited Mamlatdars and the promoted Mamlatdars. The Supreme Court held the second proviso to Rule 1 as being in conflict with Article 16 of the Constitution and observed.
It can hardly be disputed that both the directly recruited Mamlatdars as weli as the promotee Mamlatdars form one class. They are both known by the same designation They have same scales of pay. They discharge the same functions. The posts held by them are interchangeable. There is nothing to show that the two groups are kept apart. Both are merged together in the same class It is not competent to the Government thereafter to discriminate between directly recruited Mamlatdars and promotee Mamlatdars in the matter of further promotion to the posts of Deputy Collector. That would be violative of Article 16 of the Constitution.
18. The ratio of these cases is clearly applicable to the present case. The petitioner and respondent No. 3 belong to the same Departmental Promotion Committee has considered their cases and promosed them as Additional Chief Engineer. When again the same Departmental Promotion Committee met to consider the case for promotion as Chief Engineer in 1975, it excluded the petitioner only because of Impugned proviso even though be was found more meritorious, only on the ground that he had earlier in 1972 been promoted as an Additional Chief Engineer on the basis of merit. It is not under stood why and on what rational principles and a consideration of merit suffers from the fact that a person had previously also been promoted on the basis of merit. I should have thought that a person is selected again oh the basis of merit would show real worth and not an accidental preference one time. The Departmental Promotion Committee has to consider the eligible persons and determine their merit. Whatever criteria the Departmental Promotion Committee may lay down, I really fell to see on what principles of relevancy the fact of a person having already been selected on merit can make him ineligible for being considered for subsequent promotion on the basis of merit. If the suggestion is that because a person may be very meritorious, he may get promo ions quicker than his senior surely it cannot be considered a fault or detract from his efficiency. The whole scheme of the 1954 Rules lays emphasis on merit and the impugned proviso by a side mind knocks of the main purpose which is to select a person in the highest post strictly on the basis of merit. This artificial restraint and classification in the impugned proviso for consideration for the next promotion on the basis of merit appear to me to be based on no intelligible differentia have any rational relation to the object to be achieved I take it that all promotions in the service are meant to be manned in as efficient a manner as possible Public is entitled to get the best out of its public services I am not suggesting as to what precise rule the Government may frame i e. whether of seniority or merit but all that I am saying is that once having chosen to frame a rule for promotion on the basis of merit impugned proviso arbitrarily ruling out merit for being considered for next promotion is plainly unsustainable The arbitrariness is so apparent if it is appreciated that bad the petitioner not been considered on merits but had got his promotion as Additional Chief Engineer in 1974 instead of 1972 but on the basis of seniority cum merit even then be would be considered eligible for promotion as Chief Engineer on the basis of merit even though he would be having less experience as Additional Chief Engineer than he has now. To give an illustration if the petitioner was selected in 1974 as an Additional Chief Engineer on seniority-cum-merit he would have been eligible to be considered on the basis of merit and considering that he has been found meritorious to be appointed as Chief Engineer, but the torturous chance that he was promoted on the basis of merit as an Additions 1 Chief Engineer in 1972 & even though has now more experience than he would had in former case, he must be ruled out on the plea that he had already got a promotion on the basis of merit in the lower post I do not see bow this can be styled as double jump. Promotion as Additional Chief Engineer is one thing and promotion as a Chief Engineer is separate and distinct, To me it seems that this impugned proviso makes insidious distinction between the Additional Chief Engineer who has been promoted on the basis of merit and the Additional Chief Engineer who has been promoted on the basis of seniority cum merit and practices discrimination for the purposes of promotion to the post of a Chief Engineer between the some class of Additional Chief Engineer on no rational basis and the dissemination is writ large on the face of impugned proviso on that view it has to be held that the impugned proviso added by the notification of 5-4-75 offends Article 16 and must be struck down as denying equality of opportunity of employment. Respondent’s counsel bad raised an argument also of alarm, if I may say so, by saying that impugned proviso has been added to various service rules in the State and by striking that rule down there may be to much of uncertainty and upsetting that this Court should not engage in that venture. I do not agree. I can only say however that this Court avoids as far as possible to determine the constitutionality of any provision if a relief to the petitioner can be given without such determination. It is always effort of this Court not to engage in determination of a constitutionality of enactment or rule if the same does not directly arise for decision. In the present case the vires of impugned proviso is not only challenged but arises directly and has a very close relationship to the relief that is being sought by the petitioner. If the impugned proviso is valid, the petition must fall. However the petitioner says the impugned proviso is invalid as being violative of Article 16. In such a case this Court cannot avoid its constitutional obligation of adjudicating on it. This is because in extreme cases this court has to act as sentinel on the qui-vive, where fundamental rights are concerned. So even if in the result some complications arise that is a small price to pay for preservation of democracy and the rule of law, which is the sheet anchor of our Constitution. I can however take consolation from the fact that unlike the petitioner who challenged the impugned proviso immediately there has been no large scale challenge to the impugned proviso and to the further fact that an entirely new Rule 24A has been substituted on 31-10 75 for the existing Rule 24A, so that the possibility of challenge by other services seems remote Be, as it may. as the vires of the impugned proviso has been squarely raised and also arises for disposal of this petition, this court cannot shirk its constitutional obligation against the argument of convenience or speculative conjectures of discrimination.
19. The result is that if this impugned proviso is struck down as being violative of Article 16, as I do, the inevitable mult would be that the petitioner was entitled to be considered for the post of a Chief Engineer which fell vacant in April. 1975 and if considered suitable for appointment on the basis of merit was entitled to be given that post then. The Departmental Promotion Committee did consider him. It also found him suitable on the basis of merit but it did not recommend him because of the impugned proviso. Now that I have held that impugned proviso to be invalid, the result would be that there would be no bar on the petitioner being considered for appointment as Chief Engineer on the basis of merit in the vacancy of April, 1975 A mandamus will therefore go to the respondents directing the Government to consider the case of the petitioner for promotion to the post of Chief Engineer in the vacancy of April, 1975 on the basis of merit in accordance with the rules then in force, and keeping in view the fact that he was found suitable to be appointed by the Departmental Promotion Committee, and also keeping in view the observations made in this judgment and the further fact that the impugned proviso has been held to be invalid. It will also consider what if any consequential benefits flow to the petitioner. This was the course adopted in 1968 SLR 33 and 1974 (1) SLW Reports 791.
20. I may mention that I am not quashing the appointment of respondent No. 3. It is not necessary to do so because there are two posts, of Chief Engineers, and Administrative Department can work out the mechanism in consequence of this Judgment. The only mandamus that I issue is as above so that the petitioner must be considered for the post of Chief Engineer which fell vacant in April, 1975 uninfluenced by the impugned proviso which has now been held invalid.
21. The petition is allowed as indicated above. There will be no order as to costs.