Bahri, J.
1. These two writ petitions involve certain common questions of law and it would be convenient to decide both of them together by this judgment. Both these writ petitions involve the validity of prescribing certain additional experience on the part of officials who are somewhat educationally inferior vis-a-vis the other officials who are educationally a little bit better equipped. Whether such differential in the two sets of officials can be upheld as valid and not vocative of Arts. 14 and 16 of the Constitution of India, is the question.
2. In Civil Writ No. 2132/84 the petitioners are Junior Engineers in the service of Delhi Development Authority-respondent No. 1 and they can be termed as 'diploma-holders' while respondents 2 to 96 are presently working as Assistant Engineers in the service of respondent I having been promoted from the rank of Junior Engineer and they having possessed the degree of civil engineering can be termed as 'degree-holders'.
3. The facts in brief are that the recruitment to the post of Junior Engineer is made from degree-holders who need not have any experience of working and also from the persons holding diplomas in civil engineering, who have to have two years prior experience. Respondent 1 has adopted promotion rules to the posts of Assistant Engineer and Executive Engineer as prevalent in the Central Public Works Department vide Resolution No. 574 dt. 13th November 1963. 50% of the posts of Assistant Engineer can be filled up by direct recruitment and minimum qualification for the same is graduate in civil engineering. There is no quarrel in these writ petitions with regard to the direct recruitment of 50% posts from the persons holding degree in civil engineering. Out of the remaining 50% posts, half of the posts have been reserved for promotion from the Junior Engineers holding degree in civil engineering with three years experience as Junior Engineers and half quota of the posts is reserved for diploma-holders having eight years experience.
4. In the same manner, for promotion to the post of Executive Engineer, the qualifications prescribed are that the Assistant Engineers who are degree-holders should have eight years experience while diploma-holders should have ten years experience for becoming eligible for promotion. In these two writ petitions this variation of experience required from diploma-holders and graduates while they form same class of officials is being challenged as vocative of fundamental right of equality enshrined in the Constitution of India. The fixation of quota of promotion avenue at the level of Assistant Engineer between degree-holders and diploma-holders is also said to be vocative of constitutional fundamental right of equality and also on the ground of discrimination and denial of equal opportunity guaranteed under fundamental right in Art. 16 of the Constitution of India. The petitioners contend that after they have been recruited to the post of Junior Engineers along with degree-holders after fulfillling the requisite qualifications prescribed for that post they have become equal as they and the degree-holders perform same duties and functions and their posts are interchangeable and they draw same pay scales and constitute common seniority at the level of Junior Engineers and Assistant Engineers respectively. They have urged that after the diploma-holders and degree-holders are fused in one class and are found eligible for promotion to the higher post, it is discriminatory to place a disadvantageous eligibility requirement on the petitioners. At any rate, they have urged that after they had been already placed at disadvantage while being recruited as Junior Engineers as they had to have two-years experience they become equal to degree-holders, but after joining the post of Junior Engineer there cannot be any discrimination between them and the degree-holders for further promotions. In Civil Writ No. 2132/84 the petitioners have mentioned that respondents 2 to 96 have been promoted as Assistant Engineers on the basis of aforesaid unconstitutional promotion rules although they were juniors to the petitioners and as such the petitioners are entitled to be promoted as Assistant Engineers from the dates their juniors degree-holders-respondents have been promoted. They have prayed for quashing the said resolution of respondent No. 1 which had made discriminatory classification while prescribing the eligibility qualifications for promotion to the higher posts.
5. In the counter-affidavit filed by respondent 1, it was not disputed that diploma-holders and degree-holders perform same set of duties and functions and they have common seniority list and their posts are inter-changeable but it was pleaded that degree-holders are mentally better equipped and they have better professional skill for designs and drawings. It was not pleaded by the Delhi Development Authority that diploma-holders are not being posted in Designing Section. The variation in eligibility qualification for higher posts was sought to be justified in the counter-affidavit of Delhi Development Authority on the basis that the degree-holders from a class by itself as distinct from the petitioners and thus it was found necessary to fix longer period of experience for diploma-holders and lesser period of experience for the degree-holders. It was pleaded that distinction could be made in two classes on the basis of educational qualification. It was asserted that the promotion rules are not vocative of Arts. 14 and 16 of the Constitution. It was pleaded that degree-holders and diploma-holders are classes apart and both being not equal, different criteria could be fixed for the two classes for further promotions. Some of the respondents have filed counter-affidavits reiterating almost the same grounds as pleaded by the Delhi Development Authority.
6. It is well settled that under Arts. 14 and 16 of the Constitution, the authorities are entitled to have classifications based on certain substantial reasons. The classification can be justified if it has some nexus with the objectives set forth which are desirable to be achieved. It is, no doubt, for the petitioners to show that the classification resorted to by the authorities is arbitrary, unjust and unreasonable. It is almost settled law that there can be a classification on the basis of educational qualifications. It is also not challenged that the authorities can fix qualifications for promotion but while fixing such qualifications they are not supposed to act arbitrary. In State of Jammu and Kashmir v. Triloki Nath Khosa, (1974-I-LLJ-121), the dispute was between diploma-holders and degree-holders. The Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules completely debarred diploma-holders from being considered for promotion as Executive Engineers although the diploma-holders and degree-holders constituted one class while working as Assistant Engineers. The Hon'ble Supreme Court had kept in view the peculiar facts existing in the State of Jammu and Kashmir and found that earlier the conditions in that State were such that there were very few degree-holders engineers available but with the setting up of certain Engineering Colleges a large number of degree-holder engineers became available and the State government found it necessary for efficient administration to prescribe minimum qualification as a degree in engineering for the post of Executive Engineer and thus the Hon'ble Supreme Court upheld the said Rules with the observations that classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service and if looked at from the stand point of the authority making it, the classification found to rest on reasonable basis it has to be upheld. In the cited case, the diploma-holders who had challenged the said classification had failed to bring on record any circumstances showing that such classification is unjustified or unreasonable. The classification on the basis of educational qualification had been justified and upheld by the highest Court in State of Mysore v. P. Narasinga Rao, : (1968)IILLJ120SC , Ganga Ram v. Union of India, : [1970]3SCR481 and Union of India v. Dr. (Mrs.) S. B. Kohli, : [1973]3SCR117 . While upholding the classification on the basis of educational qualification by barring one set of officials from higher promotion, the highest Court has sounded words of caution and warning which we may quote :
'Since the constitutional code of equality and equal opportunity is a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class. A classification of employees can, thereforee, be made for first identifying and then distinguishing members of one class from those of another.
Classification, however, is fraught with the danger that it may produce artificial inequalities and, thereforee, the right to classify is hedged in with salient restraints; or else, the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well marked classes characterised by different and distinct attainments. Classification, thereforee, must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved.'
It is also useful to reproduce Para 51 of the judgment (1974-I-LLJ-121 at 136) :
'But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good governments and excellence and equality are not friendly bed-fellows. A pragmatic approach has, thereforee, to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment; what after all is the operational residue of equality and equal opportunity ?'
7. This was a case where diploma-holders were found completely ineligible for promotion to the higher post for lack of essential educational qualification but the consideration may vary if they are found eligible for promotion to the higher post but still certain conditions are laid as distinct from degree-holders before they become eligible for promotion. The question then would arise whether such distinction can be justified and is based on any rationality or not. Reliance has been placed on behalf of diploma-holders on Mohammad Shujat Ali v. Union of India 1976-I-LLJ-115. This judgment is crowded with facts but the material facts which are necessary for appreciating the ratio laid down in this judgment have been enumerated in Para 29 of the judgment. The effect of the Andhra Pradesh Rules was that graduates and non-graduates were discriminated in matter of promotion as Assistant Engineers in the manner that graduates were given preferential treatment so that out of three vacancies two were given by promotion to graduate supervisors. The question posed was whether this preferential treatment can be justified on the basis of any reasonable classification or it is arbitrary and irrational. After referring to the judgments in the various cases, particularly the case of Triloki Nath Khosa (supra), the Supreme Court opined that for the purpose of promotion to the higher cadre, classification as in that case was valid and was not obnoxious to the fundamental guarantee of equality and equal opportunity but it cannot be laid down as invariable rule that whenever any classification is made of variant educational qualification, such classification must be held to be valid. It was further in this very judgment that it may be perfectly legitimate for the administration to say that having regard to the nature of functions and duties attached to the post for the purpose of achieving efficiency in public service only degree-holders in engineering shall be eligible for promotion and not diploma or certificate-holders, but where graduates and non-graduates are both regarded as fit and, thereforee, eligible for promotion, it is difficult to see how, consistently with the claim for equal opportunity any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non-graduates in the matter of fixation of such quota. It was further observed as follows (1976-II-LLJ-115-at 141) :
'The result of fixation of such quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engineer, which, according to the quota is reserved for graduate Supervisors, a non-graduate Supervisor cannot be promoted to that vacancy, even if he is senior to all other graduate Supervisors and more suitable than they.'
8. The Supreme Court had then struck down this rule as vocative of fundamental rights enshrined in Arts. 14 and 16 of the Constitution. It was clearly held in this judgment that once the authorities considered the non-graduates and graduates fit for promotion then they cannot be treated as separate class and there cannot be any further classification amongst them so as to give preferential treatment to the graduates in the matter of promotion.
9. Mr. S. C. Gupta who appeared for some of the degree-holders in the connected C.W. No. 2082/84, and Mr. Swatantra Kumar, who appeared for other degree-holders in C.W. No. 2132/84, vehemently argued that the ratio laid down in Mohammad Shujat Ali's case (supra) is not applicable to the facts of the present case because the only ratio laid down in the said case is that there cannot be any quota for promotion in favor of the degree-holders to the disadvantage of the diploma-holders but the ratio does not go to lay down further that there cannot be any distinction between degree-holders and diploma-holders on the basis of educational qualifications requiring different periods of experience in service to become eligible for promotion. It was contended that the competent authority has complete unfettered power to prescribe eligibility qualification for promotion to a higher post and in the present case longer period of experience for diploma-holders has been prescribed to make them eligible for promotion and so the same cannot be questioned on any ground. They further argued that keeping in view the lack of superior education diploma-holders are not equal to degree-holders. It was also pointed out that diploma-holders in their education are not taught certain subjects at all which are part of course prescribed for degree-holders. So it was stressed on behalf of degree-holders that the rule prescribing longer period of experience in lower service for diploma-holders is based on sound reasons and is not arbitrary.
10. We have considered the matter and we find that the law laid down in the case of Mohammad Shujat Ali (supra) applies on all fours. The moment the diploma-holders and degree-holders are considered to constitute one class for purpose of promotion there cannot be any differentiation between the two vis-a-vis the qualification for promotion. It could be that for reasons of efficiency in administration the authorities may lay down that diploma-holders are not at all eligible for promotion to the higher post and such a bar can be upheld in view of the ratio laid down in the case of Triloki Nath Khosa, (supra) but after the authorities considered them eligible for promotion there could be no rationality in their making any distinction between the degree-holders and diploma-holders for granting promotion to them to the higher post. As a matter of fact, no substantial reasons have been pleaded in the counter-affidavit which could justify the distinction between the diploma-holders and degree-holders for being considered for further promotions. After all, it is an admitted fact that initially the diploma-holders have to have experience of two years before being recruited as Junior Engineer whereas the degree-holders were not required to have any such experience. Whatever lack of higher education was that could be stated to have been removed with two years experience required from the diploma-holders before joining the post of Junior Engineer. It has been rightly urged on behalf of the diploma-holders that the original birth-mark which placed them inferior to the degree-holders should be considered to have been eradicated after they had been considered eligible for the post of Junior Engineers along with the degree-holders. The diploma-holders and the degree-holders after joining as Junior Engineer become one class. They are completed fuses, their pay-scales are same, their seniority is common one their functions and duties are also similar. So, once they are found eligible for promotion to higher post, there cannot be further classification in two classes that the graduates should have only three years experience while diploma-holders should have eight years experience before being considered eligible for promotion to the higher post of Assistant Engineer. The quota fixed for graduate engineers and diploma-holders engineers is not now being justified before us in any case. After all rule of fixation of better quota of promotion for degree-holders was considered bad because the same gave undue preference to degree-holders. Similarly giving promotion to degree-holders with lesser period of experience in service, also gives them a preferential treatment. So it is not understood how the same can be justified by any stretch of reasoning. The effect of both the rules ultimately is same. Both result in treating the diploma-holders and degree-holders as two separate classes and give better chances of promotion to degree-holders than to the diploma-holders. In H. C. Sharma v. Municipal Corporation of Delhi 1983 2 LLJ 454, Delhi Municipal Corporation Rules fixing separate quota for graduate engineers for promotion to the post Assistant Engineer was in challenge and was held to be vocative of Arts. 14 and 16 of the Constitution. The observations at 473 which are pertinent may be quoted here :
'This cannot be done except by carving out two classes in the same category of Junior Engineers on the basis merely of their qualification which is not permissible in law. .... The Junior Engineers do the same kind of work and bear the same responsibilities whatever their qualification, whether they are degree-holders or diploma-holders.'
11. After all, the effect of fixing quota for degree-holders was to give them better chances of promotion as Assistant Engineer and that quota was sought to be justified on the basis of their superior educational qualification. Once the highest Court has held that such quota cannot be justified, the ratio laid down by the highest Court must be taken to its logical conclusion that there cannot be any other sort of distinction made between the degree-holders and diploma-holders while considering them for promotion. So, it cannot be urged with any sense of rationality that there can be fixed a longer period of experience of diploma-holders than the degree-holders after they have become one class and had started performing same sets of duties and functions as Junior Engineer in order to become eligible for further promotion. In Punjab State Electricity Board, Patiala v. Ravinder Kumar Sharma 1986 2 LLJ 115, it was again reiterated by the Supreme Court that there cannot be made any discrimination between the degree-holders and diploma-holders after they constitute one class by fixing quota based on educational qualification. (See also T. R. Kapur v. State of Haryana 1987 2 LLJ25.
12. Mr. Madan appearing for some of the diploma-holders has drawn our attention to Velappan v. Chandran (1986) 4 ELJ 331 (Ker), and Pushpadharan v. Food Corporation of India : (1984)ILLJ417Ker , which interpreted the ratio laid down by the Supreme Court in cases including the case of Mohammad Shujat Ali, (supra) in the same manner as has been interpreted by us above.
12-A. Our attention was drawn to certain observations of our brother Chadha, J., in Civil Writ Petn. No. 1258/84, K. L. Gupta v. Municipal Corporation decided on 17th October 1984, which was a litigation between degree-holders who were direct recruits and the degree-holders who as promotees were required to have longer period of experience than the direct recruits and that classification has been held to be invalid and it was observed by the Hon'ble Judge that he has already upheld the classification between diploma-holders and degree-holders with regard to their having different length of experience for being promoted as Assistant Engineers in his previous judgment in C.W. No. 472/77, D. K. Gupta v. Municipal Corporation of Delhi decided on the 2nd February 1978-1978 Ser. LJ 525 (Delhi). We have gone through this judgment and find that this particular point now before us was not at all in issue in that judgment. There was a dispute with regard to some promotees holding certain posts on ad hoc basis which were meant to be recruited directly. We are, thereforee, of opinion that these judgments are not helpful in deciding the issue before us.
13. Once could understand the rationality behind any classification if it is based on academic qualification which bars a particular class from being promoted as it may be considered justifiable by the authorities that a person holding better educational qualification is suitable for a particular post keeping in view the reasons of efficiency in administration but where once officials are found to be eligible for promotion then there cannot be any further classification amongst them so as to give preferential treatment of some of them who may be holding better educational qualification over the others who may not be equally educationally qualified. Mr. M. S. Gujral, Senior Advocate, appearing for some of the diploma holders was right in his contention that after certain class of officials are found to be eligible for promotion, then to make distinction between them would amount to making mini or micro distinctions as has been deprecated in the observations made by Krishna Iyer, J. in Triloki Nath Khosa's case, (supra). It is useful to quote the relevant observations made by his Lordship in the judgment 1974-ILLJ121 .
'Mini-classifications based on micro distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality. If in this case Government had prescribed that only those degree-holders who had secured over 70% marks could become Chief Engineers and those with 60% alone be eligible to be Superintending Engineers or that foreign degree would be preferred we would have unhesitatingly voided it.
The role of classification may well recede in the long run, and the finer emphasis on broader equalities implicit in the concluding thought of the leading judgment will abide. The decision in this case should not - and does not - imply that by an undue accent on qualifications the Administration can cut back on the larger tryst of equalitarianism or may hijack the founding and fighting faith of social justice into the enemy camp of intellectual domination by an elite. The Court, in extreme cases, has to be the sentinel on the quivive.'
14. The only purpose of making classification amongst the Junior Engineers could be for the purpose of achieving best and efficient administration. It the diploma-holders are not mentally equipped academically, in that case they could be completely debarred from further promotions as has been done in the above case but if the Competent Authority feels as has been done by it that diploma-holders are capable of holding higher posts then there can be no justification to have prescribed longer experience for diploma-holders in the lower post than for the degree-holders because it is admitted case that both the diploma-holders and degree-holders perform similar functions and duties and their posts are inter-changeable except for one assertion that they are not considered suitable for designing work as has been mentioned in the affidavits filed by Delhi Development Authority and some of the degree-holders. It could be that while they were educationally inferior it was desirable and absolutely necessary that they should have some length of practical experience before they could be considered suitable for becoming Junior Engineers but after they have been appointed as Junior Engineers, their lack of better education should not stand in way of their getting due promotion on same terms as the degree-holders when they are found suitable for being promoted. It cannot be said that while working as Junior Engineers the performance of some of the diploma-holders would not be better than the performance of degree-holders. So there could be no justification for laying down that diploma-holders should have longer period of experience than the degree-holders as Junior Engineers before being considered eligible for promotion to Assistant Engineers. There has been no circulars or order placed on record or referred to which lay down that the diploma-holders are not to be posted in designing sections of Delhi Development Authority. So, it cannot be said that diploma-holders have been performing less important duties and functions than degree-holders while working as Junior Engineers.
15. It was argued on behalf of the degree-holders that longer period of experience has been provided for diploma-holders at different levels of postings so that they could come up to the level of degree-holders who are academically better qualified and such a distinction is based on substantial reasons and should not be considered vocative of any fundamental rights laid down in Arts. 14 and 16 of the Constitution. It is, no doubt, true that if the classification has been resorted to for the purposes of achieving any objective for better administration and such classification is based on some sound reasons, the same has to be upheld. Experience in a particular job is found necessary for being promoted in higher post. Both the diploma holders and degree-holders undergo same sort of experience because they perform same sort of duties and functions. Mere fact that diploma-holders initially were inferior in educational qualification would not mean that they remain so throughout their careers and that is not the case set up by the Delhi Development Authority because they are considered suitable to hold the posts of Assistant Engineers. Executive Engineers and even higher posts and if that is so, how could it be said that they are not mentally equipped to hold the higher post at all unless they undergo more experience than the degree-holders in the lower post. By being better qualified academically the degree-holders at the initial stages are recruited directly to the post of Junior Engineers without undergoing any experience whereas diploma-holders who, no doubt, are not as qualified academically as degree-holders are required to have experience of some years before becoming eligible for being recruited as Junior Engineers. So, that initial academic deficiency stands remedied. The same deficiency cannot be highlighted again and again whenever they have to climb higher ladders. The lack of particular educational qualification may debar them to hold a particular given post completely and if such a rule is there and is based on rationality and has a nexus with the object sought to be achieved then the said rule can be upheld, but the moment it is found that the authorities considered such persons as eligible for further promotion then there cannot be made any distinction in qualification between the degree-holders and diploma-holders laying down that diploma-holders should have more experience in lower post than the degree-holders. That would amount to laying down some arbitrary distinction which cannot be upheld.
16. It has been brought to our notice that the Municipal Corporation of Delhi had later on amended its rules of eligibility for promotion to the higher posts by removing the disparity between the degree-holders and the diploma-holders vis-a-vis their length of service. However, legally unless and until the Delhi Development Authority adopts that said amended Municipal Corporation of Delhi Rules, they cannot be considered binding on the employees of the Delhi Development Authority. It may be argued on behalf of the petitioner that Realizing the artificial and arbitrary disparity in the eligibility rules for promotions to the higher posts amongst degree-holders and diploma-holders the Municipal Corporation of Delhi has remedied the said illegality. At any rate, in view of our discussion above, we come to the conclusion that the rule now applicable to the Delhi Development Authority employees by virtue of which degree-holders are place in a better position for manning promotional posts of Assistant Engineers and Executive Engineers appears to be arbitrary and not based on any sound substantial reasons and thus has to be struck down being vocative of fundamental rights of the petitioners given in Arts. 14 and 16 of the Constitution.
17. Now we may come to another contention raised for getting the said resolution of Delhi Development Authority prescribing the qualification for promotion as illegal as the same does not fulfill the requirement of Ss. 52, 56 and 57 of the Delhi Development Act. It is true that Rules and Regulations which pertain to the conditions of service of the employees of Delhi Development Authority have to be notified in official gazette as required by S. 52 and have to be laid before the Parliament and this particular resolution does not comply with the said provisions. However, S. 4 of the Delhi Development Act gives the powers to the Delhi Development Authority for making appointment till Rules and Regulations are framed in consonance with the provisions of Ss. 56 and 57 of the Delhi Development Act. So, till such rules are made this resolution which enables the Delhi Development Authority to make appointments under S. 4 cannot be held invalid.
C.W. No. 2082/84
18. The reasons given above also apply to this particular writ. Here the classification is based on totally arbitrary grounds. The Assistant Engineers who are diploma-holders are required to have only required to have ten years experience whereas the degree-holder are required to have only eight years experience. No return was filed by the degree-holders in this writ whereas the Delhi Development Authority in its affidavit unequivocally admitted that the diploma-holders and degree-holders perform same duties and their posting are also interchangeable and they have joint seniority. It was nowhere pleaded that experience of extra two years for diploma-holders has been prescribed for achieving any object of administrative efficiency. This distinction between two was sought to be justified only on the score that the degree-holders are better academically qualified. For the reasons given above, such classification has to be held to be arbitrary and not based on any sound reasons and has to be struck down. It may be mentioned that one of the diploma-holder, namely, Shri R. A. Khan has been promoted as Executive Engineer even before he had put in ten years experience in clear violation of the minimum qualification prescribed by the Delhi Development Authority itself. May be this illegal promotion by itself may not justify the petitioner to claim right of promotion without fulfillling the minimum qualification of ten years of service, yet in view of the fact that we have come to the firm conclusion that this particular classification between the degree-holders and the diploma-holders with regard to the period of experience being not based on any sound reasons has to be struck down as vocative of Arts. 14 and 16 of the Constitution. So this writ petition is also liable to be allowed.
19. As a result, we allow petition No. 2132/84, make the rule absolute and strike down the resolution No. 574 dt. 13th November 1963 of the Delhi Development Authority which prescribed eight years service for the petitioners to be promoted as Assistant Engineers and also strike down the quota fixed for promotion for the degree-holder promotees and diploma-holder promotees. The diploma-holders shall be governed by same eligibility promotional qualifications as are applicable to degree-holders. We also direct that the petitioner be given promotions from the dates their juniors/respondents 2 to 96 have been given promotions respectively, if they are otherwise suitable for promotion.
20. We also allow petition No. 2082/84, make the rule absolute and strike down the classification made by the Delhi Development Authority by which diploma-holder Assistant Engineers are required to have ten years experience before being considered eligible for promotion as Executive Engineers. The diploma-holders shall be governed by same eligibility promotional qualifications as are applicable to degree-holders. We also direct that the petitioners be promoted as Executive Engineers from the dates their junior/respondent 2 to 10 have been promoted if they are otherwise suitable for promotion.
In view of the peculiar facts, we award no costs.