PETITIONER:
STATE OF MYSORE
Vs.
RESPONDENT:
M. N. KRISHNA MURTHY & ORS.
DATE OF JUDGMENT05/10/1972
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
SIKRI, S.M. (CJ)
PALEKAR, D.G.
DWIVEDI, S.N.
CITATION:
1973 AIR 1146 1973 SCR (2) 575
1973 SCC (3) 559
CITATOR INFO :
F 1974 SC2077 (5,9)
E 1975 SC2112 (4)
E&R 1978 SC 515 (7)
D 1978 SC 747 (5,10)
R 1981 SC1829 (121)
F 1987 SC 415 (16)
R 1987 SC1858 (18)
ACT:
Mysore State Accounts Services (Recruitment) Rules 1959--(As
amended retrospectively by State Government Notifications
Nos. GSR 384 dated 30th August, 1967)--Division into two
classes of members of the same service, belonging to the
same cadres, for purposes of a difference to be made in
their promotion chances--Rule-making power under proviso to
Article 309 of the Constitution--Scope of--Cannot be used to
validate unconstitutional discrimination in promotional
chances.
Practice--Points not raised or argued before High Court--Not
allowed to be raised for first time before Supreme Court.
HEADNOTE:
The two respondents, who were petitioners before the High
Court had joined the Accounts Service in the Controller's
Office of the former Mysore State as first and second
division clerks. Consequent upon the abolition of the
Controller's Office, the petitioner began working as
Divisional Accounts Cadre was created by the Mysore Govt.
under the administrative control of the Chief Engineer. Both
the petitioners passed the prescribed examinations and were
absorbed in the Divisional Accounts Cadre. In April, 1959,
the PWD Reorganisation Committee recommended the transfer of
the PWD Accounts Branch into the newly set-up Controller of
State Accounts. Accordingly, the petitioners came under the
administrative control of the Controller and the designation
of their office was changed to that of "Accounts
Superintendent" On 15-5-1959, the two formerly separate
units of the Accounts service, namely PWD Accounts Unit
under the Chief Engineer, PWD and the Local Funds Audit
Unit, known also as "the said Accounts Department" came
under the common administrative control of the Controller of
State Accounts. On 26-5-59, the Mysore State Accounts
Service Cadre Recruitment Rules were issued and combined
cadre strengths were fixed. On 30-8-67, the State Govt.
issued three Notifications amending the 1959 Rules with
retrospective effect. The petitioners challenged the
Notifications an the High Court as being violative of
Articles 14 and 16 (1) of the Constitution of India. The
High Court quashed the three notifications and the
promotions of the respondents in the Writ Petition.
Dismissing the appeal.
HELD : (i) The High Court rightly declared the purported
amendments in the rules of 1959, which sought to
disintegrate a service which had been integrated, to be
ultra vires. Such amendments made for the purpose of
justifying the illegal promotion made, in the teeth of the
protection conferred by Articles 14 and 16(1) of the
Constitution of India upon Indian citizens in Government
service, could not be upheld. The power of making rules
relating to recruitment and conditions of service under the
proviso to Article 309 could not be used to validate
unconstitutional discrimination in promotional chances of
Government servants who belong to the same category. [579C]
2-L499Sup. Cl/73
576
Inequality of opportunity of promotion, though not
unconstitutional per se, must be justified On the strength
of rational criteria co-related to the object of such a
difference must be presumed to be selection of the most
competent from amongst those possessing qualifications and
backgrounds entitling _them to be considered as members of
one class. Articles 14 and 16(1) of the Constitution must
be held to be violated when member of one class are not even
considered for promotion. [580G]
State of Mysore V. Padmanabhacharya AIR 1966 S.C. 602 State
of Punjab v. Joginder Singh, AIR 1963 S.C. 913 and K. M.
Bakshi v. Union of India [1965] Supp. 2 S.C.R. 169 relied
on.
Ram Lal Wadhwa v. The State of Haryana AIR 1972 S.C. 1982
and S. G. Jatsinghani v. Union of India [1967] 2 S.C.R.
703 distinguished.
(ii) It is a well recognised practice of the Supreme Court
not to allow new points to be raised for the first time in
the Supreme Court when they involve investigation of
questions of fact. [577G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals No, 193 & 194
of 1971.
Appeals by special leave from the judgment and order dated
April 11, 1969 of the Mysore High Court at Bangalore in Writ
Petitions Nos. 1416 and 2918 of 1967.
A. R. Som Nath Iyer, and M. Veerappa, for the appellant
(in both the appeals).
R. B. Datar and S. N. Prasad for respondent No. 1 (in both
the appeals).
M. Ramajois S. S. Khanduja and Lalita Kohli, for respon-
dents Nos. 2 & 4-8 & Interveners (in M. Choudhajah & 14
others in C.A. No. 193/71).
A. G. Ratnaparkhi for Interveners (C. Y. Shastri & 19
Ors. in C.A. No. 193/71.).
The Judgment of the Court was delivered by
BEG, J. The State of Mysore has come to this Court with two
appeals now before us by Special Leave against the common
judgment on two Writ Petitions which were allowed. The High
Court of Mysore had quashed three State Government
Notifications Nos. GSRS. 384, and 392 and 303, dated 30th
August, 1967, amending the Mysore State Accounts Services
(Recruitment) Rules, 1959, and the promotions of Respondents
3 to 8 of in Writ Petition No. 1416/67. It had directed the
State of Mysore to consider the cases of the petitioners
with those of Respondents 3 to 8 for promotion before it
under the Mysore State Accounts Services (Recruitment) Rules
1959, made under Article 309 of the Constitution of India.
notified on 26-5-1959.
577
The two petitioners before the High Court, who are respon-
dents before us, had joined the Accounts’ services in the
Comptroller’s office of the former Mysore State as first and
second Division Clerks. Consequent upon the abolition of
the Comptroller’s office the petitioners began working as
Accounts Clerks under the Chief Engineer, P.W.D. On 31st
October, 1953, a Divisional Accounts’ Cadre, in the scale of
Rs. 130-335 was created by the Mysore Government under the
administrative control of the Chief Engineer. Both the
petitioners passed the prescribed examinations and were
absorbed in the Divisional Accounts’ Cadre. It appears that
in April, 1959, the P.W.D. Reorganisation Committee had
recommended the transfer of the P.W.D. Accounts’ Branch in
toto to the newly set up Controller of State Accounts. in
accordance with this recommendation, the petitioners came
under the administrative control of the Controller and the
designation of their office was changed to that of
“Accounts’ Superintendent”. On 15th May, 1959, the two
formerly separate units of the Accounts service, namely the
P.W.D. Accounts unit, under the Chief Engineer of P.W.D.,
and the. Local Fund Audit unit, known also as “the State
Accounts’ Department”, came under the common administrative
control of the Controller of State Accounts. On 26h May,
1959, the Mysore State Accounts Services’ Cadre and
Recruitment Rules were issued and combined cadre strength
were fixed.
The High Court after examining the rules of 1959, in the
context of all the orders, proceeding and following the
promulgation of these Rules, concluded : “There cannot be
the slightest doubt from these rules that a clear and
complete integration was brought about between the two
units”. It pointed out that the qualifications and status
of the officers of the formerly separate units were
identical, their work was of the same nature, the recruiting
authorities were the same, the standards observed and tests
prescribed for entry into the formerly separate units were
identical. The result of the Rules of 1959 was that an
artificial distinction based on mere separate control had
been abolished so that both units came under the legally
single administrative Control of the Accounts’ Department
incharge of the Controller of State Accounts. The
petitioners became absorbed in what was legally a single
permanent service regulated by uniform
After examining the cases of the petitioners that, in the
matter of promotions, they were discriminated against simply
because they had worked in the P.W.D. Accounts Unit, which
had ceased to exist, the High Court held that the
petitioners’ grievances were justified. It found that
figures showing the number of appointments of members of the
same service derived. from the formerly separate units
indicated “a striking disparity in the promotional oppor-
tunities between the officers of the two wings in the same
cadres”.
578
It said: “While the rules of 1959 integrated the two wings
into one service and provided for promotion on the basis of
seniority-cum-merit, the impugned Notifications fixing up
the cadre strength reduce the number of promotional posts
available to the Public Works Accounts Unit to a very low
figure as compared with the promotional opportunities open
to the officers in the other wing”. It had, therefore,
struck down the impugned Notifications as violations of the
Constitutional guarantees given by Article 14 and 16(1) of
the Constitution.
The learned Counsel for the State of Mysore has contended:
firsly, that the petitioners, now respondents before us,
were never promoted or appointed to offices held by them
under the rules of 1959 so that they could not complain of
denial of equality of promotional chances; and, secondly,
that the amendments made retrospectively in the rules in
1967, justifying the differences of promotional chances
between the two wings of the same service, were perfectly
legal and bore a rational nexus to the object of the
differences made.
So far as the first contention is concerned, we are unable
to entertain it for the first time in this Court. We do not
find any indication that the point, even if such a position
was taken on behalf of the State, was argued at all before
the Mysore High Court. The submission that the High Court
had wrongly proceeded on the assumption that the petitioners
were promoted and appointed under the rules of the
integrated service although the point was ,argued before the
Mysore High Court, is not borne out even by any assertion in
the application made by the appellant under Article 1 3 2
and 1 3 3 ( 1 ) (c) of the Constitution of India before the
Mysore High Court. Our attention was invited to a paragraph
in that application where it was submitted that the “High
Court should have held” that the answering respondents were
placed “in independent charge of the duties of Assistant
Commissioner without conferring any right of benefit of
promotion” But, this submission does not appear to us to
meet the objection that the point was not urged, when the
petitions were argued before the High Court, and the
petitioners were not entitled to the benefit of the Rules of
1959 on the ground that they were not promoted to the posts
held by them in the service. It is a well recognised
practice of this Court not to allow new points to be raised
for the first lime ‘in this Court particularly when they
involve investigation of questions of fact We, therefore, do
not propose to deal with a controversy which does not arise
for consideration before us.
The question which remains for consideration by us is the
one relating to the validity of a division into two classes
of ,members of the same service, belonging to the same
cadres, for
579
purposes of a difference to be made in their promotional
chances. Learned Counsel for the State has sought to justify
this difference in promotional chances by a reference to
differences in the historical backgrounds and to the
practice of making the distinction in promotional chances.
The Mysore High Court had very rightly observed that neither
a fortuitous artificial division in the past nor the
unconstitutional practice of making an unjustifiable
discrimination in promotional chances of Government servants
belonging to what was really a single category, without any
reference either to merit or seniority, or educational
qualifications, could justify the differences in promotional
chances. We think that it had rightly declared the
purported amendments in the rules of 1959, which sought to
disintegrate a service which had been integrated, to be
ultra vires. Such amendments made for the purpose of
justifying the illegal promotions made, in the teeth of the
protection conferred by Articles 14 and 16(1) of the
Constitution of India upon Indian citizens in Government
service, could not be upheld. ,
The High Court rightly relied on State of Mysore v. Padmana-
bhacharya(1) to hold that the power of making rules relating
to recruitment and conditions of service under the proviso
to Article 309 could not be used to validate
unconstitutional discrimination in promotional chances of
Government servants who belong to the same category. It
must be understood that a Government servant whose case is
considered for promotion but who fails to be selected on an
application of just and reasonable criteria, such as that
found in the merit-cum-seniority rule found in the Rules of
1959, cannot complain of discrimination. But, what the
petitioners had complained of and established was that their
cases for promotion were not considered at all under these
Rules on the false premise that they belong to a class which
disables them from obtaining equal consideration for
promotion to the offices to which they considered themselves
entitled. The effect of the order of the Mysore High Court
was only that cases of the petitioners, now respondents
before us, will be considered, in accordance with Rules of
1959, in preparing the seniority list on merit-cum-seniority
basis. All that the order of the High Court enjoins is that
the petitioners before it must not be ignored simply on the
assumption that the source of their initial recruitment
debars the consideration of their merits for promotion.
Learned Counsel for the State of Mysore had attempted to
rely strongly on Ram Lal Wadhwa & Anr. v. The State of
Haryana & Ors. (2) and S. C. Jaisinghani v. Union of India
(3). In Ram lal Wadhwa’s case (supra), the majority of
learned Judges of this
(1) A.I.R. 1966 S.C. 602. (2) A.I.R. 1972 S.C. 1982.
(3) (1967) 2 S.C.R. 703.
580
Court had reached the, conclusion that the historical and
other special reasons existing, on the facts of that
particular case, justified the difference made in
promotional chances of the teachers coming from two
different sources. We think that Wadhwa’s case was decided
on its own facts, the most important of which was that,
after full consideration of the pros and cons of various
alternatives before it, the Government concerned had come to
the conclusion that the provincialised cadre must be
gradually and not suddenly eliminated. In that case, there
was no actual formal decision to integrate the two branches
-as is the case before us. The rules before us levy no
doubt whatsoever, as we have already pointed out, that a
complete integration of the service whose members came
originally from two sources had been actually accomplished.
That was not the position in Wadhwa’s case which could not,
therefore, help the appellant.
Similarly, Jaisinghani’s case (supra) was also
distinguishable, as it has been rightly distinguished by the
Mysore High Court, on facts of that particular case. There
quotas for promotion had been fixed by the Government in
exercise of a statutory power on rational and reasonable
criteria. In the case before us, the amendments in existing
rules were sought to be made for the purpose of validating
what, as the Mysore High Court had rightly held, were
violations of Articles 14 and 16 of the Constitution.
Other cases mentioned by the Mysore High Court i.e. State of
Punjab v. Joginder Singh(1) and K. M. Bakshi v. Union of
India (2 ) also show that inequality of opportunity of
promotion, though not unconstitutional per se, must be
_justified on the strength of rational criteria co-related
to the object for which the difference is made. In the case
of Government servants, the object of such a difference must
be presumed to be a selection of the most competent from
amongst those possessing qualifications and backgrounds
entitling them to be considered as members of one class. In
some cases, quotas may have to be fixed ‘between what are
different classes or sources for promotion on grounds of
public policy. If, on the facts of a particular case, the
classes to be considered are reality different, inequality
of opportunity in promotional chances may be justifiable.
On the contrary, if the facts of a particular case disclose
no such rational distinction between members of what is
found to be really a single class no class distinctions can
be made in selecting the best. Articles 14 and 16 (1) of
the Constitution must be held to be violated when members of
one class ire not even considered for promotion. The case
before us falls, in our opinion, in the latter type of cases
where the, difference in promotional opportunities of those
who were wrongly divided into
(1) A.I.R. 1963 S. C. 913.
(2) [1965] SUPP. 2 S. C. R. 169.
581
two classes for this purpose only could not be justified on
any rational grounds. Learned Counsel for the State was
unable to indicate any such ground to us. We, therefore,
think that the Mysore High Court rightly held that the
impugned notifications were unconstitutional.
Consequently, we dismiss these appeals with one set of
costs.
S.B.W.
Appeals dismissed.
582