REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5122 OF 2007
Dilip Kumar Garg and another .. Appellant (s)
-versus-
State of U.P. and others .. Respondent (s)
JUDGMENT
MARKANDEY KATJU, J.
1. This appeal by special leave has been filed against the judgment and
order dated 3.11.2006 in Civil Misc. Writ Petition No. 78513 of 2005 of the
High Court of Judicature at Allahabad.
2. Heard learned counsel for the parties and perused the record.
3. The dispute in this appeal is regarding the validity of Rule 5(ii) of the
U.P. Public works Department Group-B Civil Engineering Service Rules
2004 (in short `the 2004 Rules’).
4. Rule 5 of the 2004 Rules states :
“5. Recruitment to the posts in the service shall be made
from the following sources:
(i) Fifty percent by direct recruitment through the Commission.
(ii) Fifty percent by promotion through the Commission from
amongst the substantively appointed Junior Engineers (Civil)
and Junior Engineers (Technical) who have completed seven
years service as such on the first day of the year of recruitment.
Provided that the promotion shall be
made in such a manner that ninety percent
posts shall be filled up by Junior Engineers
(Civil) and ten percent posts shall be filled
up by Junior Engineers (Technical).”
5. The dispute is between the Junior Engineers of the PWD department
of the U.P. Government who are degree holders and those who are only
diploma holders.
6. The submission of Shri B.A. Bobde, learned counsel for the
appellants (the degree holders) is that while the U.P. Service of Engineers
(Building and Road Branch) (Class II) Rules, 1936 (in short `the 1936
Rules) provided in Rule 9(ii) thereof that no Junior Engineer who was only
diploma holder would be promoted as Assistant Engineer unless he has
passed the qualifying examination that the Government may prescribe, this
requirement has been done away with by rule 5 of the 2004 Rules.
7. It may be mentioned that in 1966 there was an amendment to the
1936 Rules which provided that a Junior Engineer who is a diploma holder
could be promoted as Assistant Engineer provided he either acquired the
qualification prescribed in Rule 9(1) or he passed the qualifying
examination.
8. Thereafter certain amendments were made to the Rules, but in our
opinion they are not relevant in the present case.
9. The submission of Shri Bobde is that Rule 5(ii) of the 2004 Rules
violates Article 14 of the Constitution, because it makes unequals as equals
by completely divesting the requirement for the Junior Engineers who are
only diploma holders either of acquiring the requisite technical qualification
or passing a qualifying examination for promotion as Assistant Engineer. It
is submitted that Article 14 can be violated not only by treating equals as
unequals, but also by treating unequals as equals.
10. In State of Jammu & Kashmir vs. Triloki Nath Khosa & others
AIR 1974 SC 1, the rule which provided that only degree holders in the
cadre of Assistant Engineers shall be entitled to be considered for
promotion to the next higher cadre of Executive Engineers while the
diploma holder Assistant Engineers were not eligible for such promotion
was challenged as violative of Article 14. However, the Constitution Bench
of this Court repelled this challenge and observed that though the persons
appointed directly and by promotion were integrated into a common class of
Assistant Engineers, they could, for the purpose of promotion to the cadre
of Executive Engineers, be classified on the basis of educational
qualifications.
11. However, in Mohammad Shujat Ali & others vs. Union of India &
others, AIR 1974 SC 1631, another Constitution Bench of this Court struck
a different note and observed that for promotion to a higher post,
discrimination based on educational qualifications not obligated by the
nature of duties or responsibilities of the higher post would be violative of
Article 14 of the Constitution.
12. In Roop Chand Adlakha & others vs. Delhi Development
Authority & others, AIR 1989 SC 307, this Court while taking note of
T.N. Khosa’s case (supra) and Mohd. Shujat Ali’s case (supra) observed
in para 7 as under:
” 7. ……If the differences in the qualification has a
reasonable relation to the nature of duties and
responsibilities, that go with and are attendant upon the
promotional-post, the more advantageous treatment of
those who possess higher technical qualifications can be
legitimized on the doctrine of classification. There may,
conceivably, be cases where the differences in the
educational qualifications may not be sufficient to give
any preferential treatment to one class of candidates as
against another. Whether the classification is reasonable
or not must, therefore, necessarily depend upon facts of
each case and the circumstances obtaining at the relevant
time. When the state makes a classification between two
sources, unless the vice of the classification is writ large
on the face of it, the person assailing the classification
must show that it is unreasonable and violative of Article14. A wooden equality as between all classes of
employees irrespective of all distinctions or
qualifications, or job-requirements is neither
constitutionally compelled nor practically meaningful.
This Court in General Manager, South Central Railway
vs. A.V.R. Siddhanti, (1974) 3 SC 207 at p. 214 : (AIR
1974 SC 1755 at p. 1`760 observed :“….A wooden equality as between all classes of
employees regardless of qualifications, kind of
jobs, nature of responsibility and performance of
the employees is not intended, nor is it practicable
if the administration is to run. Indeed, the
maintenance of such a `classless’ and undiscerning
`equality’ where, in reality, glaring inequalities
and intelligible differentia exist, will deprive the
guarantee of its practical content. Broad
classification based on reason, executive
pragmatism and experience having a direct
relation with the achievement of efficiency in
administration, is permissible….”13. In P. Murugesan and others vs. State of Tamil Nadu and others,
(1993) 2 SCC 340, this Court held up the validity of the rule prescribing the
ratio of 3:1 between graduates and diploma holders in promotion as also the
longer qualifying period for service for diploma holders. While noting the
earlier decisions a three-Judge Bench of this Court observed:
“14. This decision clearly supports the appellant’s
contention and goes to sustain the validity of the
impugned amendment. If the diploma holders can be
barred altogether from promotion, it is difficult to
appreciate how and why is the rule-making authority
precluded from restricting the promotion. The rule-
making authority may be of the opinion, having regard to
the efficiency of the administration and other relevant
circumstances that while it is not necessary to bar the
diploma holders from promotion altogether, their
chances of promotion should be restricted. On principle,
there is no basis for the contention that only two options
are open to a rule-making authority – either bar the
diploma holders altogether or allow them unrestricted
promotion on par with the graduates.”
14. In J. Ranga Swamy vs. Govenrment of Andhra Pradesh and
others, AIR 1990 SC 535 and in State of Rajasthan and others vs. Lata
Arun, AIR 2002 SC 2642, this Court observed that the eligibility
qualification for admission to a course or for recruitment or promotion in
service are matters to be considered by the appropriate authority, and not by
the Courts.
15. In the present case, what we find is that Rule 5(ii) of the 2004 Rules
has done away with the requirement of passing a qualifying examination for
the diploma holder Junior Engineers for promotion as Assistant Engineers,
and they have been placed at par with degree holder Junior Engineer for this
purpose. We see no unconstitutionality or illegality in the same. It is
entirely for the authorities to decide whether the degree holders and diploma
holders should be treated at par or not for the purpose of promotion from the
post of Junior Engineer to the post of Assistant Engineer.
16. Shri Bobde, learned counsel for the appellants submitted that degree
holders Junior Engineers have always been treated differently from Junior
Engineers who are only diploma holders for the purpose of promotion, and
that the latter have always been required either to get the requisite
qualification or pass the qualifying examination. In our opinion, merely
because in the past they have been treated differently does not mean that
they cannot be treated identically subsequently.
17. In our opinion Article 14 should not be stretched too far, otherwise it
will make the functioning of the administration impossible. The
administrative authorities are in the best position to decide the requisite
qualifications for promotion from Junior Engineer to Assistant Engineer,
and it is not for this Court to sit over their decision like a Court of Appeal.
The administrative authorities have experience in administration, and the
Court must respect this, and should not interfere readily with administrative
decisions. (See Union of India vs. Pushpa Rani and others 2008 (9) SCC
242 and Official Liquidator vs. Dayanand and others 2008 (10) SCC 1).
18. The decision to treat all Junior Engineers, whether degree holders or
diploma holders, as equals for the purpose of promotion is a policy decision,
and it is well-settled that this Court should not ordinarily interfere in policy
decisions unless there is clear violation of some constitutional provision or
the statute. We find no such violation in this case.
19. In Tata Cellular vs Union of India, AIR 1996 SC 11 SC, it has been
held that there should be judicial restraint in administrative decision. This
principle will apply all the more to a Rule under Article 309 of the
Constitution.
20. For the reasons afore-mentioned, this appeal fails and is hereby
dismissed. There shall be no order as to costs.
21. The Interlocutory Application for intervention stands dismissed as the
same becomes infructuous in view of our decision given in Civil Appeal
No. 5122/2007.
………………………..J.
(R. V. Raveendran)
………………………J.
(Markandey Katju)
New Delhi;
March 3, 2009