Gopal Rao Ekbote, C.J.
1. The petitioner is a direct recruit Assistant Commercial Tax Officer. He was appointed on completion of his nine months' training on 26-3-1967. According to Rule 8 of the Andhra Pradesh Commercial Taxes Subordinate Service Rules, hereinafter called 'Service Rules', he had to be on probation for a total period of two years duty of which a period of not less than one year shall have been on assessment work within a continuous period of three years. The petitioner completed one year assessment period on 4-8-1968. His probation was declared with effect from 4-8-1968.
2. The Assistant Commercial Tax Officers are employed from two sources, one from the U. D. Cs. and the other from direct recruitment. The next post of promotion from the A.C.T.O. is the post of Deputy Commercial Tax Officer. These posts are also filled from two sources as per Rule 2(e) of Service Rules : one by transfer from the A. C. T. Os. and the other by transfer from among persons who have served as Superintendents in the Office of the Board of Revenue (Commercial Taxes)
3. For appointment to the Deputy Commercial Tax Officer by transfer from A.C.T. Os. certain qualifications are prescribed. One must be an approved probationer in the category of A.C.T. Os. In the case of directly recruited A.C.T.O., he must have put in not less than six years service as A.C.T.O. And one must have to pass certain tests prescribed for that purpose.
4. The Government was considering the list of approved candidates prepared by the Board of Revenue for the year 1969. It is out of this list that a person can be appointed as D.C.T.O. The list is prepared of only those A.C.T.Os. who have requisite qualifications on a certain date of the relevant year. In that list for the year 1969 the petitioner's name was not included obviously because he had not completed six years service as A.C.T.O. It is to challenge the list that the present petition out of which this appeal arises was filed by the petitioner. He claimed two reliefs. Firstly, he wanted a declaration that Rule 4(d) of the Service Rules which requires at least six years service as A.C.T.O. for a direct recruit as discriminatory and violative of Article 14 of the Constitution. Secondly, he wanted a direction to the Government that his name should be included in the list of approved candidates for the year 1969.
5. Our learned brother M. Krishna Rao, J., following the case of Roshan Lal v. Union of India : (1968)ILLJ576SC , held that the direct recruits as well as the promotees to the post of A.C.T.O. all belong to one class. The rule that the direct recruits must put in six years service as A.C.T.O. before their names are included in the list of approved candidates is offensive to Article 14 of the Constitution. It is this judgment that is now assailed in this writ appeal
6. The principal contention of the learned Government Pleader was that Rule 4(d) of the Service Rules cannot be said to be discriminatory as it reasonably prescribes qualification of six years service in order to earn promotion and is, therefore, not offensive to Article 14 of the Constitution.
7. Now, the law on the subject is well-settled and no more requires further elucidation. It is enough to refer to a relevant passage from Govind Dattatray v. Chief Controller of Imports and Exports 1967-I L.L.J. 691 : : (1967)ILLJ691SC .
Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in matter of promotion can be predicated only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two sources, and the said differences have a reasonable relation to the nature of the office or offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of valid classification. There can be cases where the differences between the two groups of recruits may not be sufficient to give any preferential treatment to one against the other in the matter of promotion, and, in that event Court may hold that there is no reasonable nexus between the differences and the recruitment. In short, whether there is a reasonable classification or not depends upon the facts of each case and the circumstances obtaining at the time the recruitment is made.
8. The same view is expressed in Jais1nghani v. Union of India : [1967]65ITR34(SC) .
9. To this general rule we may add that in the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the State is recognised as enjoying a wide range of discretion. The question of classification is primarily for the Legislature or the rule-making authority, and it can never become a judicial question except for the purpose of determining, in any given situation, whether the legislative action is clearly unreasonable. The Court cannot require the Legislature to specify its reasons for the classification, but they will always presume that the Legislature acted on legitimate grounds of distinction, if any such grounds exist. Where there is a reasonable and practical ground of classification for legislative regulations, the classification should be sustained, even though some other classification or the absence of specific classification would appeal to some minds to be more in accord with the general welfare, since the discretion of selecting the subject of regulations and the nature and the extent of such regulations is left to the general law-making power, where there is no undoubted and irreconcilable conflict between the regulations and the provisions and principles of Constitution.
10. It must be borne in mind that it is frequently difficult to determine whether a particular classification is reasonable or unreasonable, and no definite rule has or can be laid down whereby this may be determined, A classification having some reasonable basis does not offend the equality clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. It is well to bear in mind that the principle of equality necessarily permits many practical inequalities, and classification is not invalid because it is not depending on scientific or marked differences in things or persons or in their relations.
11. It is in this background we have to examine as to how far the impugned rule is contrary to Article 14 of the Constitution.
12. In order to find that out it is perhaps necessary to mention as how the impugned rule had come to be framed. The Government in their memo dated 21-9-1955 stated that under Regulation 4 of the Indian Administrative Service (Appointment by Promotion) Regulation, 1955, a State Civil Officer must have completed not less than eight years service to be eligible for consideration for appointment to the Indian Administrative Service. It has been suggested that a similar Rule, say of 6 years, may be prescribed in all grades of promotion including the heads of departments as it has been found that very young officers are holding high offices in certain departments and requested the Board to examine the above suggestion with reference to the conditions obtaining in Commercial Taxes Department and send its remarks at an early date.
13. After examining the reports received from the Deputy Commissioner, the Board had in its reference dated 1-11-1955 submitted a report to the Government recommending that a minimum service of six years may be considered for direct recruit A. C, T. Os, for promotion as D.C.T.O.
14. The Government agreeing with the suggestion issued an amendment in G.O. Ms. No. 1477 dated 6-8-1957 to the Special Rules for Andhra Pradesh Commercial Tax Subordinate Services that one must have not less than six years service as A.C.T.O. if he is directly recruited as A.C.T.O.
15. The above provision has been retained in the integrated Rules issued in G.O. Ms. No. 1781 dated 15-10-1963. Rule 4(d) reads:
No person shall be eligible to have his name included in the list of aoproved candidates for appointment as Deputy Commercial Tax Officer, unless he has acquired the requisite qualifications for inclusion in such list, on the 1st day of the year in which the report of the Board of Revenue to the Andhra Pradesh Public Service Commission about his fitness for inclusion in the list is due.
16. We have noticed that the A. C. T. Os. are drawn from two sources, Direct recruits and promotees.
17. The Andhra Pradesh Commercial Taxes Service Rules prescribe qualifications for the appointment to the post of A.C.T.O. For direct recruitment he must not have completed 28 years of age and for promotees he must acquire requisite qualifications for his inclusion in the list of approved candidates. In the case of a clerk, he must have service of not less than eight years in all including a minimum service of two years in the Commercial Taxes Department or in any of the Commercial Taxes Sections of the Office of the Board of Revenue or in the Office of the Sales Tax Appellate Tribunal.
18. The tests period provided for these two types are different. Both kinds of appointees have to undergo such training as is prescribed by the State Government. A direct recruit during the course of his training gets a stipend of Rs. 90 per month, whereas a person appointed by transfer gets the same pay as he was getting until he has completed the prescribed training. The period of probation for these two types is also different. Whereas for a person appointed by transfer, he has to be on probation for a total period of one year of which not less than six months shall be on assessment work within a continuous period of two years, for the direct recruits a probation for a total period of two years is prescribed of which not less than one year he shall be on assessment work within a continuous period of three years.
19. The direct recruits have to pass the examinations and tests within the period of their training and probation in the three subjects mentioned in Rule 9(a) A person appointed by transfer is required to pass the examination and test in the same subjects but within a period of one year which period is inclusive of the period of training.
20. What is important to note is that for these two sources of recruitment to the post of A. C. T.O. different conditions of service are prescribed not only for their entry but also for completing the examinations and tests as well as for probation. The reason for the different treatment is obvious. The promotees are supposed to be acquainted with the procedure relating to Commercial Taxes as they have been working over 8 years as L. D. Cs. and U.D. Cs. and thus arc sufficiently matured by dealing with the tax cases. The direct recruits on the other hand are quite young and fresh and unacquainted with the type of work. It may be that the direct recruits are graduates and they may have in some cases a better background in general education but they are completely strangers to the taxation work which is transacted in the department. That is why they are expected to get a training of the post of a head clerk. It should not, however, be forgotten that a substantial number of promotees arc also graduates. A direct recruit to U.D.C. has necessarily to be a graduate. It will be a mistake to assume without careful examination that all the L. D. Cs. promoted as U. D. Cs. are only matriculates. No one need be surprised if one finds amongst them a sufficient number of graduates. Between these two categories, therefore, eight years experience of the work puts the promotees very well ahead of the direct recruits. In spite of difference in training and probation, the experience which the promotee has cannot be out balanced by any of the particular feature of the direct recruit. If in these circumstances, six years experience as A.C.T.O. is prescribed for a direct recruit under the impugned rule, it need not cause any surprise to those who are acquainted with the nature of the work and the place of experience therein. It is seen that such Rule exists not only in I.A.S. but also in several other departments.
21. Once it is conceded that the rule-making authority has a wider discretion in arranging classification and that it is a legislative function and not a judicial one, then what alone has to be seen is whether the impugned rule is so unreasonable as to shock judicial conscience and violate Article 14. Thus when the State has made classification between two sources of recruitment in more than one respect, unless the classification made is very unjust and unreasonable, this Court will not interere. By their very background these two types of recruits are different. If in such circumstances, preferential treatment of one source in relation to the other is based on the differences between the said two sources and the said differences have a reasonable relation to the nature of the office to which promotion is made, the said recruitment can legitimately be sustained on the basis of a valid classification.
22. The post of the Deputy Commercial Tax Officer is, according to the Rules, a primary authority for making the assessment. It is true that A.C.T. Os. also do the assessment work. But they do only those cases which are made over to them by the D.C.T. Os. The D.C.T.O.'s work is more onerous and carries with it a greater responsibility. That being the primary authority, assessments of complicated nature involving huge amounts are dealt with by them and it is only comparatively simple type of cases not involving huge amounts that are transferred to the A.C.T. Os. It is not, therefore, surprising that the State expects the posts to be filled only by experienced people. The experience of the promotees is thus balanced with the experience of direct recruits. It is not as if the promoted A.C.T. Os. get the promotion to the post of D.C.T.O. almost immediately. We are told even such promotees can expect promotion only when they have put in at least five years service ordinarily as A.C.T.O. We do not, therefore, think that the impugned Rule is in any manner unreasonable or has no nexus with the object which it seeks to achieve. The object of the impugned Rule is to get experienced and mature people as D.C.T. Os. The long experience obtained by the promotees is balanced with no experience at the outset but six years experience thereafter of the direct recruits. Rule 4(d), therefore, attempts to strike a just balance between the conflicting claims and that is perfectly valid. See A. P. Saxena v. Union of India : (1969)ILLJ373SC .
23. The State which encounters diverse problems arising from a variety of circumstances is entitled to lay down conditions of efficiency and other qualifications for securing the best service for being eligible for promo ion in its different departments. In the present case, as seen already, the object sought to be achieved by the impugned provision is the requisite efficiency in the posts of D.C.T. Os. The State and the department concerned is the proper Judge of its requirements and what qualifications would meet those requirements. It is, therefore, difficult to find fault with the provision assailed in this case. It does not, in our judgment, constitute any hostile discrimination and is neither arbitrary nor unreasonable. It applies uniformly to all the direct recruits. The onus was on the petitioner to establish discrimination by showing that this classification does not rest upon any just and reasonable basis. The difference emphasized on behalf of the petitioner is too tenuous to form the basis of a serious contention. The challenge, therefore, fails. See Ganga Ram v. Union of India : [1970]3SCR481 .
24. It is pertinent in this connection to note that M. Krishna Rao, J. himself took a contrary view to what he had taken in the judgment under appeal subsequently in W. P. No. 4462 of 1971 dated 23-3-1973 (Andh. Pra.). This very rule was again questioned before him. He held:.it is obvious that direct recruits have no previous experience when compared to the departmental promotes.... The object of insisting upon prior experience is to promote efficiency in the service ...I do not, therefore, see any ground for striking down the said rule laying down six years experience in the case of direct recruits when compared to the departmental promotees who had previous experience in the department.
It is true that the judgment under appeal was not brought to the notice of the learned Judge when he subsequently gave the other judgment. We, however, entirely agree with the view taken by him subsequently as above.
25. It is also relevant to note that when the petitioner was recruited directly the impugned rule was already in existence. It was not made subsequent to his appointment. There is, therefore, no room for any complaint that when he joined the service the class of A.C.T.O. was one and similar in all respects although drawn from two sources but subsequently discrimination has been made. In the cases sought to be relied upon by him, discrimination was attempted subsequent to their appointment. Let us examine those cases briefly.
26. In Jaisinghani v. Union of India : [1967]65ITR34(SC) , supports the view which we have taken. Their Lordships observed:
The object of the rule is really to carry out the policy of Rule l(f)(iii) of the Rules of Seniority and not allow it to be defeated by the requirement of five years service in Class I, Grade II itself before consideration for promotion to Class I, Grade I. The promotee is placed senior to a direct recruit who completes probation in the year in which the promotee is selected by the Departmental Promotion Committee. If it should be laid down that the past service as Income-tax Officer in Class II is not to be counted, then Rule l(f)(iii) would be nullified, because directly recruited officers juniors to the promotees would go to Grade I earlier than the promotee officers.
27. In Roshanlal v. Union of India : (1968)ILLJ576SC :
It was not disputed on behalf of the 1st respondent that before the impugned notification was issued, there was only one rule of promotion for both the departmental promotees and direct recruits, and that rule was seniority-cum-suitability, and there was no rule of promotion separately made for application to the direct recruits. As a consequence of the impugned notification a discriminatory treatment was made in favour of the existing Apprentice Train Examiners who have already been absorbed in Grade 'D' by March 31, 1966, because the notification provided that this group of Apprentice Train Examiners should first be accommodated en bloc in Grade 'C' upto 80 per cent of vacancies reserved for them without undergoing any selection.
28. This case has to be understood in the context of the facts of that case. In that case also, the 1965 notification which was subsequent was sought to be quashed.
29. In Mervyn Costinho v. Collector of Customs, Bombay : (1967)ILLJ749SC , the question relating to principal appraisers was entirely different. Since the principal source of recruitment to that post was from appraisers only, it was held that there was no question of any quota being reserved from two sources in their cases as was the case with the appraisers. This case, therefore, renders no assistance to the petitioner.
30. We then come to S. M. Pandit v. State of Gujarat : [1978]2SCR193 . It is true that in that case both the directly recruited mamlatdars and promotee mamlatdars had the same pay scale. They were discharging the same functions. The posts were interchangeable. There was nothing to show that they were kept apart. The relevant part of that case, however, was that the directly recruited mamlatdars had to put in a certain minimum period of service. It was said that that factor does not indicate that the two groups were kept apart. Then appears the following observation which is very relevant for our purpose.
The High Court seems to think that that condition is not a valid condition. We express no opinion on that question.
This decision, therefore, is of no assistance to us.
31. In State of Mysore v. Krishna Murthy : (1973)ILLJ42SC , the Rules of 1959 under which the services were treated as belonging to one class by subsequent amendment of August, 1967 were sought to be treated differently. As it was unreasonable it was struck down. It is relevant, however, to note what their Lordships said:
that inequality of opportunity of promotion, though not unconstitutional per se, must be justified on the strength of rational criteria correlated 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 really different, inequality of opportunity in promotional chances may be justifiable.
32. In Aswini Kumar Rath v. D.P.I., West Bengal 1966-II L.L.J. 227, the M. As. and Honours Graduates along with Pass Graduates were treated alike for appointment. The subsequent differentiation on the basis of qualification, in the matter of pay, was struck down.
33. The same was the case in T. N. Khosa v. State of Jammu and Kashmir 1972 J. & K. L.R. 436, 1972 Lab. I.C. 1575. There also the subsequent amendment was found to be discriminatory.
34. Looking to the facts and circumstances of the present case as detailed above, we have no doubt that at the time when the petitioner was appointed as a direct recruit, all the differences pointed out existed between the direct recruits and the promo-tees. There was no subsequent change in the position which can be characterised as discriminatory. Even otherwise, as stated earlier, the imposition of six years service rule for direct recruits before their names are included in the list of approved candidates is not at all unreasonable and does not violate Articles 14 and 16 of the Constitution.
35. We would accordingly allow the appeal, set aside the judgment of the learned Judge and dismiss the writ petition with costs throughout. Advocate's fee Rs. 100 in each Court.