Amritlal and anr. Vs. R.S.E.B. and anr. - Court Judgment

J.R. Chopra, J.

1. These two writ petitions raise common questions of facts and law and, therefore, they were heard together and are being decided by a common order.

2. The facts, necessary to be noticed for the disposal of these two writ petitions, briefly stated, are: that the respondent Rajasthan State Electricity Board, Jaipur (for short 'the Board') issued an advertisement for selection to the post of Junior Engineer (Electrical) in the year 1972, wherein the petitioner Amritlal Kaushik was selected. It further issued an advertisement for selection to the post of Overseer (Electrical) in the year 1976 and in that selection, petitioner Kurbansingh was selected as Overseer (Electrical).

3. It was submitted that earlier in the Rajasthan State Electricity Board Service of Engineers (Recruitment, Promotion and Seniority etc.) Regulations, 1969 (hereinafter referred to as 'the Regulations'), there was only the post of Junior Engineer but in the year 1973, the Regulations were amended vide Notification No. RSEB/Rules/D. 33 dated October 15, 1973 and it was provided that the words 'Junior Engineer' wherever appeared in the Regulations be substituted by the words 'Junior Engineer/Overseer'. Thus, the selection of petitioner Kurbansingh was made after this amendment in the Regulations and the selection of petitioner Amritlal Kaushik was made prior to this amendment in the Regulations. It was contended that when appointment was given to the petitioner Amritlal Kaushik, he was appointed on the post of Overseer (Electrical/Mechanical) inspite of the fact that the post of Junior Engineer was advertised vide Advertisement Annexure-R. 1 dated 9th May, 1972. Even while calling for interview, the petitioner Shri Amritlal Kaushik was called for interview for selection to the post of Junior Engineer (Electrical), which is clear from the Interview call latter Ex. P. 1 dated 30.9.1972. Be that as it may, petitioners Amritlal Kaushik and Kurbansingh both were appointed as Overseers (Electricals) because they were diploma holders.

4. It is alleged that in the year 1978, the respondent Board took a decision that the persons possessing diploma in Engineering be designated as Junior Engineer Gr. II and the persons possessing degree in Engineering be designated as Junior Engineer Gr. I. The contention of the petitioners is that the same process of selection took place by which Junior Engineer Gr. I and Junior Engineers Gr. II or for that matter Junior Engineers/Overseers were selected and this classification of Junior Engineer/Overseer or Junior Engineer Gr. I or Junior Engineer Gr. II is based on different qualifications that are being held by two categories of persons. According to the petitioners, after selection, the diploma holders and degree holders both are required to perform the same kind of work and, therefore, it is a misnomer to designate them as Junior Engineer Gr. I and Junior Engineer Gr. II or Junior Engineer/Overseer.

5. It was submitted that in the year 1988, a provisional seniority list of both these categories of persons was published separately. Objections were invited and ultimately, those seniority lists were finalised vide Ex. P. 3 and Ex. P. 4 dated 6.6.1984. According to the petitioners, these seniority lists were prepared separately wrongly. There is no provision in the Regulation for preparation of these lists separately.

6. It was submitted that the degree holders and the diploma holders both are eligible for promotion to the post of Assistant Engineer (Electrical). Earlier, promotions were being accorded to the degree-holders and diploma holders in the ratio of 50:50 but later on, promotional prospects have been adversely affected and the ratio of degree holders was increased to 75% and the ratio of diploma holders for promotion to the post of Assistant Engineer (Electrical) was reduced to 25% and this has resulted in great discrimination. It was also submitted that one Shri H.S. Siddhu, whose name stands at S.No. 381 in the seniority list Ex. P. 3 and who was appointed as Junior Engineer in the year 1965, was afforded promotion on the post of Assistant Engineer (Electrical) in the year 1985 i.e. almost after the expiry of 20 years whereas the degree holders working on the post of Junior Engineer (Electrical) were promoted to the post of Assistant Engineer (Electrical) after the expiry of two years. It was further submitted that the degree-holders, whose seniority stand at item Nos. 517 to 678 in the seniority list Ex. P. 4 and were holding the post of Junior Engineer (Electrical) have been promoted to the post of Assistant Engineer (Electrical) and they are admittedly much junior to the petitioners and thus, this action on the part of the respondents is discriminatory and arbitrary.

7. It was further submitted that the respondents Board in exercise of its powers conferred by Electricity (Supply) Act, 1984 framed the Regulations. These Regulations provided for qualifications for Assistant Engineer (Electrical) including Assistant Controller of stores. According to the Regulations, the post of Assistant Engineer (Electrical) including Assistant Controller of Stores has to be filled in 50% by direct recruitment and 50% by promotion from Junior Engineer/Overseer (Electrical) on the basis of seniority cum merit. It has further been provided that the persons will be promoted from degree holders and diploma holders in the ratio 3:1. This amendment came into effect vide notification No. RSEB/Rules/D. 39 dated 28.12.1973. However, this amendment was made after the selection of Mr. Amritlal Kaushik but prior to the selection of Mr. Kurbansingh. It was submitted that when Shri Amritlal Kaushik was selected in the year 1972, promotions were being accorded to the degree holders and diploma holders Junior Engineers/Overseers in the ratio of 50:50 and thus, the service conditions of Shri Amritlal Kaushik have been adversely changed. It has also been provided in the Regulations that a degree-holder with two years experience as Junior Engineer is entitled for promotion to the post of Assistant Engineer (Electrical) whereas a diploma holder with 7 years requisite experience as Junior Engineer/Overseer is entitled for promotion to the post of Assistant Engineer (Electrical). The petitioners have submitted that this provision in the Regulation is also violative of Articles 14 and 16 of the Constitution. It was also submitted that a Junior Engineer, who holds diploma in Engineering is fixed at the minimum of the basic pay scale whereas a Junior Engineer who holds a degree in Engineering is fixed after according five increments in the pay scale. Thus, it also results in denial of equal pay for equal work.

8. It was claimed that describing the petitioner Amritlal Kaushik in his appointment order Ex. P. 2 as Overseer is unconscionable. He should have been appointed as Junior Engineer because he applied for the post of Junior Engineer and he was called for interview for the post of Junior Engineer. It was submitted that the amendment which was brought vide Notification No. RSEB/Rules/D. 33 dated October 15, 1973 cannot govern the service conditions of the petitioners Amritlal Kaushik and, therefore, it is liable to be quashed as it amounts to prescription of two cadres in pay scale No. 6 having the same kind of work, functions and responsibilities. It was also claimed that prescription of two designations in the same cadre of Junior Engineers i.e. Junior Engineer Gr. I and Junior Engineer Gr. II by fixing them in the same pay scale and asking them to perform the same kind of duties is not permissible. It was, therefore, prayed that by an appropriate writ, order or direction, the separate quota fixed vide Ex. P. 5 (Schedule-I) column No. 6 provided for the purpose of promotion to the post of Assistant Engineer for Degree holders and Diploma holders on the basis of educational qualifications may be quashed and declared ultra vires to the Constitution. It was also prayed that for the purpose of promotion to the post of Assistant Engineer from amongst the Junior Engineers, the requirement of separate experience of two years and seven years for degree-holders and diploma holders respectively vide Ex. P. 5 under column No. 6 may be declared arbitrary, unreasonable and ultra vires to the Constitution. It was also prayed that the respondents may be directed to make payment of salary as well as to provide for other service conditions to the petitioners on the principle of equal pay for equal work with all consequential benefits.

9. In both these writ petitions, separate replies have been filed. It was submitted that the Advertisement Ex. P. 1 dated 9.5.1972 was issued only for Junior Engineers, who were diploma holders. It was further submitted that there are two sources for recruitment in the Rajasthan State Electricity Board to the post of Junior Engineer, firstly from the Degree holders and secondly from diploma holders and to differentiate both the degree holders and diploma holders, the diploma holders were regarded as Overseers and degree holders were regarded as Junior Engineers. It was admitted that the petitioner Amritlal Kaushik was appointed as Overseer in the year 1972 but he never challenged it for 14 long years i.e. prior to the filing of this writ petition in the year 1986. He is being paid salary as Overseer but that has also not been challenged by him prior to filing of this writ petition. So far as petitioner Kurbansingh is concerned, it was submitted that he was selected under to Amended Regulations and, therefore, he cannot make any grievance about these Rules after the expiry of 10 years. When he was selected, two categories of posts were already there in existing Rules/Regulations and, therefore, he being a diploma holder was selected as Overseer and later on designated as Junior Engineer Gr. II. It was claimed that for a degree course in Engineering, the persons who secure more than 80% marks are selected whereas the left out persons are accommodated in the diploma courses. The diploma course is only for three years whereas the degree course is of five years. Thus, it is clear that the degree holders are more intelligent persons than the diploma holders, and have a better grounding of the engineering branch. As a matter of fact, the degree-holders are entitled to be appointed as Assistant Engineer (Electrical) directly but on account of paucity of jobs, they are obliged Gr. I and, therefore, they have been made eligible for promotion to the post of Assistant Engineer (Electrical) on expiry of two years. It was also submitted that the diploma holders are less qualified than the degree-holders and so, it has been provided that the diploma holders must have 7 years experience before they are promoted as Assistant Engineers (Electrical). Thus, there is a reasonable justification for this differentia in the promotional opportunities provided to the diploma holders and degree holders-Junior Engineers. It is based on sound classification and, therefore, it cannot be categorised as unreasonable.

10. It was submitted that the RSEB has never treated degree-holders and diploma holders Junior Engineers as one cadre. In order to attract the degree-holders, who are better qualified and have better talents, it has been provided in the Regulations that the degree-holder Junior Engineers be given five advance increments and it was because of this that they are given higher start of pay and that serve the purpose of efficient administration because the persons better qualified will be able to grasp the job earlier and deliver the goods in the better way.

11. It was further claimed that originally, the Regulations provided that the post of Assistant Engineer would be filled up by direct recruitment and by promotions in the ratio of 75:25 respectively and out of 25% quota for promotions, the Overseers (diploma holders) and Junior Engineers (degree-holders) were made eligible for promotion in the ratio of 50:50. To provide better promotional avenues to the Junior Engineers (degree-holders), who were obliged to accept the lower job as Junior Engineer, the percentage of direct recruitment was reduced from 75% to 50% and, therefore, the quota for promotion was increased from 25% to 50% and it was in this back ground that the promotional avenues were provided to Junior Engineer Gr. I (degree holders) and Junior Engineer Gr. II (diploma holders). In the proportion of 3:1. Thus, the promotional avenues of Junior Engineers Gr. II (diploma holders) remained 12.5% as they were earlier. They were not adversely affected. Later, the quota for direct recruitment to the post of Assistant Engineer was reduced from 50% to 25% and the promotion quota was increased from 50% to 75% and even then the ratio for promotion to the post of Assistant Engineer from amongst the Junior Engineer Gr. I (degree-holders) and Junior Engineer Gr. II (diploma holders) was kept the same i.e. 3:1 and thus, the promotional opportunities of Junior Engineers Gr. II (diploma holders) have been increased from 12.5% to 19% and, therefore, their service conditions have not been adversely affected but rather their promotional avenues have been increased.

12. According to the respondents, Junior Engineer Gr. I (degree holder) and Junior Engineer Gr. II (diploma holder) although enjoy the same pay-scales but the Junior Engineer Gr. I (degree holders) get the higher start of pay on account of better qualifications and their seniority list is maintained separately. In their appointment orders itself, they are described separately. It was submitted that the seniority of Junior Engineer Gr. I and Junior Engineers Gr. II was decided way back in the year 1980 and at that time, the petitioners did not raise any grouse against those seniority lists and so, they cannot be heard at such a late stage to challenge those seniority lists. It was asserted that nobody junior to the petitioners Junior Engineer Gr. II has been promoted as Assistant Engineer. It was submitted that the Regulations provided for promotions to the post of Assistant Engineer from amongst the Junior Engineers Gr. I (degree-holders) and Junior Engineers Gr. II (diploma holders) in the ratio of 3:1 and promotions have been accorded in that ratio, which neither offends Article 14 nor Article 16 of the Constitution. It was, therefore, prayed that the writ petition be dismissed.

13. We have heard Mr. P.P. Choudhary, the learned Counsel appearing for the petitioners and Mr. M.L. Kala, the learned Counsel appearing for the respondents and have carefully gone through the record of the case.

14. So far as petitioner Kurbansingh is concerned, he has been appointed as Overseer (Electrical) in the year 1977 i.e. after the Regulations were amended and the posts of Junior Engineer and Overseer were provided separately for degree holders and diploma holders respectively. It was very much made clear in his appointment order Ex. P. 1 dated 28.2.1977 that the Overseers (diploma holders) will get the initial salary of Rs. 250/- and the Junior Engineers (degree holders) will get the initial salary of Rs. 330/-. Thus, it is clear that so far as petitioner Kurbansingh is concerned, his appointment was made after the change in the Regulations.

15. Now, so far as petitioner Amritlal Kaushik is concerned, it was submitted that when he was appointed, the post of Overseer (Electrical) was not provided in the Regulations and still, he has been appointed as Overseer (Electrical). Moreover, when he was appointed as Overseer (Electrical), the post of Assistant Engineer (Electrical) was to be filled in from amongst the Junior Engineers (diploma holders) and Junior Engineers (degree holders) in the ratio of 50:50. It was submitted that this ratio has been adversely changed and now, it has been provided that the post of Assistant Engineer (Electrical) will be filled up from amongst the Junior Engineer Gr. I (Electrical) (degree holders) and Junior Engineer Gr. II (Electrical) (diploma holders) in the ratio of 3:1. It was further submitted that at the time, when the petitioner Amritlal Kaushik was appointed, at the time of promotion to the post of Assistant Engineer (Electrical), the requisite experience on the post of Junior Engineer required was three years for Junior Engineer (degree holders) and seven years for Junior Engineer (diploma holders). The requisite experience of three years for Junior Engineer (degree holders) has been submitted by two years whereas the requisite experience of 7 years for Junior Engineer (diploma holders) has been maintained. Thus, it is a change in the service conditions of the petitioner Amritlal Kaushik. It was submitted that no retrospective change could have been effected. In this respect, reliance has been placed on a decision of their Lordships of the Supreme Court in Ex Capt. K.C. Arora v. State of Haryana 1984 (2) SLR 97. That was a case of Punjab Government National Emergency (Concessions) Rules, 1965 (as amended vide Notification dated 22nd March, 1976 and 9th August, 1976). Sub-rule (4) relating to the war-service benefit was amended and the amendment was brought about with retrospective effect relating to their seniority, increments and pension. The amendment in the rules with retrospective effect took away certain acquired rights. Their lordships of the Supreme Court held that though the Governor was competent to frame rules with retrospective effect but the same cannot take away the acquired rights and, therefore, the amendment in the Rules is ultra vires of the Constitution. That was a case where the rights have been acquired by certain persons and the amendment was brought about by affecting prejudicially their seniority, increments and pensions etc. This is not the case here. In this case, the petitioner Amritlal Kaushik was selected as Overseer in the year 1972 and by the time, the Regulations were amendment, he has not acquired any right of promotion. Thus, the amendment in the Regulations providing for the change of nomenclature of Junior Engineer to that of Junior Engineer/Overseer cannot be categorised as retrospective in operation.

16. Our attention has also been drawn to a decision of their lordships of the Supreme Court in State of Gujarat v. Ramanlal Keshavlal Soni : (1983)ILLJ284SC , wherein it has been held that retrospective operation of amended law should be in relation to the present status and rights of the affected persons. It should not be violative of fundamental rights acquired by such persons at the time of enforcement of the principal law and date back to the time, when they were not entitled to those rights. Thus, it is clear that any amendment in the law can have a retrospective operation if the status and rights of the affected persons are not affected retrospectively. If they are prospective in operation than it does not offend Articles 14 and 16 of the Constitution.

17. In this respect, we may place reliance on a decision of their lordships of the Supreme Court in State of J. & K. v. Triloki Nath Khosa : (1974)ILLJ121SC , wherein it has been held that it is well settled that though employer may have a contractual like that under any other master may have a contractual origin, the Govt. Servant acquires a 'status' on appointment to his Office. As a result, his rights and obligations are liable to be determined under statutory or constitutional authority which, for its exercise, requires no reciprocal consent. The Govt. can alter the terms and conditions of some of its employees unilaterally and though in modern times, consensus in matters relating to public services is often attempted to be achieved, consent is not a precondition of the validity of rules of service the contractual origin of the service notwithstanding. It may be stated here that the decision in State of J. & K.'s. case (supra) was by Five Judges of the Supreme Court. In that case, it was further unanimously observed that it is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes undoubtedly operates on those who entered service before the framing of the rule, but it operates in future, in the sense that it govern the future right of promotion of those who are already in service. The rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past.

18. From the decision of their lordships of the Supreme Court in State of J. & K.'s case (supra), it is clear that though employment under the Govt, like that under any other master may have a contractual origin, the Govt. Servant acquires a status on appointment to his Office and his rights and obligations are liable to determined under statutory or constitutional authority, which for its exercise, requires no reciprocal consent. It is further clear that the Govt. can alter the terms and conditions of some of its employees unilaterally. Thus, it hardly matters that the petitioner was appointed as an Overseer (Electrical) vide Order Ex. P. 1 dated 30.9.1972 and at that time, there was no provision to appoint any person as Overseer under the Regulations of the respondent Board but later on, the petitioner Amritlal Kaushik was given the status of an Overseer by changing the Regulations of the respondent Board vide Notification No. RSEB/Rules/D. 33 dated October 15, 1973 and that could be unilaterally done by the Govt. and, therefore, his earlier description as Overseer (Electrical) is of no consequence. Later on, the petitioners have been described as Junior Engineer Gr. II by an amendment in Schedule I appended to the Regulations of the respondents Board, that will be the status applicable to them from that date of amendment. There is no question of retrospective operation but presently, the service conditions of the petitioners will be governed by the Regulations of the respondent Board (as amended upto date). This principle applies with full force to the rights of the petitioners' for promotion to the post of Assistant Engineer (Electrical) has also not been changed. A similar view has been expressed by their lordships of the Supreme Court in Union of India v. Arun Kumar Roy : (1986)ILLJ290SC , wherein it has been observed that the terms and conditions of the service of an employee under the Govt. who enters service on a contract will, once he is appointed be governed by the Rules governing his service conditions. It will not be permissible thereafter for him to rely upon the terms of contract which are not in consonance with the terms of contract which are not in consonance with the rules governing the service. The powers of the government under Article 309 to make rules, to regulate the service conditions of its employees are very wide and cannot in any manner, be fettered by any agreement. These powers can be exercised unilaterally without the consent of the employees concerned.

19. Mr. M.L. Kala the learned Counsel appearing for the respondents has contended that if any change in the Rules or Regulations affects the promotional rights of any person, that does not amount to change in the conditions of service. In this respect, reliance has been placed on a decision of their lordships of the Supreme Court in Ramchandra Shanker v. State of Maharashtra 1974 (1) SLR 471, wherein it has been held that earlier the Rules provided for 110 posts to be filled by promotion but the Rules were changed. Providing 50 posts to be filled by promotion, it does not amount to any change in conditions of service. It was further held that a rules which merely affects the chances of promotion does not amount to change in conditions of service.

20. In Mohd. Shujat Ali v. U.O.I. : (1976)IILLJ115SC , their lordships of the Supreme Court have observed that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service. Though, a right for promotion is a condition of service, mere chances of promotion are not. Thus this authority fully answers all the grievances of the petitioners regarding change in the conditions of service.

21. It is futile to argue that the use of word 'Overseer' in the order Ex. P. 2 dated 20.9.1972 in the writ petition filed by petitioner Amritlal Kaushik is unconscionable and, therefore, the decision of their lordships of the Supreme Court in Central Inland Water Transport Corporation v. Brojo Nath Ganguly : (1986)IILLJ171SC has no application. That, of course, was a case of termination of service of a term employee without assigning reasons on three months' notice or pay in lieu thereof and hence, it was held to be unconscionable. In this case, the petitioner Amritlal Kaushik has only been described as Overseer on the basis of the settled practice in the RSEB and that was later on provided in the Regulations of the respondent Board by an amendment and, therefore, this description cannot be termed as unconscionable.

22. Similarly, the decision of the Division Bench of this Court in M.R.E.C.N.T.S. Association v. M.R.E.C. Society 1987 (II) RLR 855 has no relevance to the facts of this case. That was a case where certain conditions were attached in the order of promotion, which were not provided in the Rules and therefore, it was held that no such restriction can be put in the order of promotion. In this case, on selection, the petitioner Amritlal Kaushik has been described as Overseer (Electrical) and that term was further regularised vide Notification No. RSEB/Rules/D. 33 dated October 15, 1973. Thus, this authority has no application to the facts and circumstances of this case.

23. Now, we taken up the main grievance of the petitioners, which relates to unreasonable classification as regards promotional avenues.

The contention of Mr. P.P. Choudhary, the learned Counsel appearing for the petitioners is that the Overseers (diploma holders) and Junior Engineers (degree holders) undergo the same process of selection for appointment but the degree-holders are appointed as Junior Engineer now redesignated as Junior Engineers Gr. I and the diploma holders are appointed as Overseers, now redesignated as Junior Engineers Gr. II. He has submitted that their process of selection, pay-scales and nature of duties are the same and, therefore, bifurcating them in two categories and providing better opportunities of promotions to the degree-holders amounts to unreasonable classification. It offends Articles 14 and 16 of the Constitution and so, this unreasonable classification requires to be struck down.

24. In this respect, he has placed reliance on a basic authority of their lordships of the Supreme Court in Mohd. Shujat Ali v. U.O.I. : (1976)IILLJ115SC , wherein their lordships of the Supreme Court observed that Article 16 of the Constitution is only an instance of incident of the guarantee of equality enshrined in Article 14; it gives effect to the doctrine of equality in the sphere of public employment. The concept of equal opportunity to be found in Article 16 permeates the whole spectrum of an individual's employment from appointment through promotion and termination to the payment of gratuity and pension and gives expression to the ideal of equality of opportunity which is one of the great socio-economic objectives set out in the Preamble of the Constitution. The constitutional code of equality and equal opportunity, however, does not mean that the same laws must be applicable to all persons. It does not compel the State to run 'all its laws in the channels of general legislation'. It recognises that having regard to differences and disparities which exist among men and things, they cannot all be treated alike by the application of the same laws. It was further observed as under:

That the doctrine of reasonable classification recognises that the legislature may classify for the purpose of legislation. But requires that the classification must be reasonable. It should ensure that persons or things similarly situated are all similarly treated. The measure of reasonableness of a classification is the degree of its success in treating similarly those similarly situated. A reasonable classification is one which includes all persons or things similarly situated with respect to the purpose of the law.

It was also observed that to permit discrimination based on educational attainments not obligated by the nature of the duties of the higher post is to stifle the social thrust of the equality clause. While detailing the gist of the facts in para 27 of the Judgment, in para 28 of the Judgment, their lordships of the Supreme Court noticed three decisions of the Supreme Court where educational qualifications have been recognized as forming a valid basis for classification.

25. In State of Mysore v. Narasing Rao : (1968)IILLJ120SC , it was held by their Lordships of the Supreme Court that higher educational qualifications such as success in SSLC examination are relevant considerations for fixation of higher pay scale for tracers who have passed the SSLC examination and the classification of two grades of tracers in Mysore State: one for matriculate tracers with higher pay scale and the other for non-matriculate tracers with lower pay scale, cannot be said to be violative of Articles 14 and 16 of the Constitution. This authority answers the contention of Mr. P.P. Choudhary, the learned Counsel appearing for the petitioners that higher start of pay cannot be given to the degree-holders on the basis of their acquisition of higher qualifications. Such a higher start of pay is not violative of Article 14 of the Constitution as per the decision of their Lordships of the Supreme Court in State of Mysore's Case AIR 1968 SC-349.

26. Their lordships of the Supreme Court in Mohd. Shujat All's Case (supra), next noticed the decision in Union of India v. Dr. (Mrs.) S.B. Kohli : [1973]3SCR117 , wherein the Central Health Service Rules requiring that a Professor in Orthopedics must have a post-graduate degree in particular Speciality was upheld on the ground that the classification made on the basis of such a requirement was not 'without reference to the objectives sought to be achieved and there can be no question of discrimination.'

27. A very similar question arose before their lordships of the Supreme Court in State of J. & K. v. Triloki Nath Khosa : (1974)ILLJ121SC , where a 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 and diploma holders shall not be eligible for such promotion, was challenged as violative of the equal opportunity clause. The Supreme Court repelled the challenge holding that 'though 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' and the rule providing that graduates shall be eligible for such promotion to the exclusion of diploma holders was not obnoxious to the fundamental guarantee of equality and equal opportunity.

28. In State of J. & K.'s case (Supra), it was held by their lordships of the Supreme Court that where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend Article 14, the burden is on him to plead and prove the infirmity. There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it show that there has been a clear transgression of the constitutional principles. A rule cannot be struck down as discriminatory on any a priori reasoning. It was further observed that formal education may not always produce excellence but a classification founded on variant educational qualifications, is, for purposes of promotion to the post of an Executive Engineer, to say the least, not unjust on the fact of it and the onus therefore, cannot shift from where it originally lay. It was also observed 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 is found to rest on a reasonable basis, it has to be upheld. In para 30 of the Judgment, it was observed:

that 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 therefore be made for the first identifying and then distinguishing members of one class from those of another.

In para 34 of the Judgment, their lordships further observed as under:

that educational qualification is a safe criterion for determining validity of a classification. If the object of the classification is to achieve administrative efficiency in Engineering Services, the classification is clearly co-related to it for higher education qualifications are at least presumptive evidence of a higher mental equipment. Efficiency which comes in the trial of a higher mental equipment can reasonable be attempted to be achieved by restricting promotional opportunities to those possessing higher educational qualifications. This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. One has always to bear in mind the facts and circumstances of the case is order of judge the validity of a classification.

29. Thus, there are the basic authorities on the point. In State of J. & K.'s case : (1974)ILLJ121SC , a five Judges Bench of their lordships of the Supreme Court has held that educational qualification is the safe criterion for determining validity of a classification wherein in Mohd. Shujat All's case : (1976)IILLJ115SC , another five Judges Bench of the Supreme Court has held that to permit discrimination based on educational attainments not obligated by the nature of the duties of the higher post is to stifle the social thrust of the equality clause. Thus, the balance has to be struck between the two criterions laid down by their lordships of the Supreme Court in these two basic authorities.

30. State of J. & K.'s Case : (1974)ILLJ121SC and Mohd. Shujat Ali's case : (1976)IILLJ115SC both came up for consideration before a Division Bench of the Delhi High Court, in Kimtilal v. Delhi Development Authority 1980 Lab. I.C. 434, wherein it was held that the rule by virtue of which degree holders are placed 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 violative of fundamental rights of the petitioners given in Articles 14 and 16 of the Constitution of India. This was done by following the authority of their lordships of the Supreme Court in Mohd. Shujat Ali's case (supra). In Kimtilal's case, it was further held that both the diploma holders and degree holders undergo same sort of experience because they perform same sort of duties and functions. The mere fact that the diploma holders initially were inferior in educational qualifications would not mean that they remain so throughout their careers, because they are considered suitable to hold the posts of Assistant Engineers, Executive Engineers and even higher posts and if that is so, now could it be sold 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. It was also observed that by being better qualified academically, the degree-holders at the initial stages are recruited directly to the posts 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 moment it is found that the authorities considered such persons as eligible for further promotions then there cannot be made any distinction in qualification between the degree-holders and 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. This was a case, where diploma holders were not directly recruited as Junior Engineers. A degree holder could directly be recruited as Junior Engineer whereas a diploma holder could only recruited as Sub-Engineer and after gaining experience of two years on the post of Sub-Engineer, he was made eligible to be promoted as Junior Engineer and, therefore, it was held by the Division Bench of the Delhi High Court that by being better qualified academically, the degree-holders at the initial stage 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. Thus, the difference between qualifications required for diploma holders and degree-holders has also been highlighted but however, it has been held that once, the diploma holders and degree-holders both are recruited in the common cadre of Junior Engineers having common seniority then the discrimination are regards promotional avenues cannot be sustained. In that case, the decision of their lordships of the Supreme Court in State of J. & K.'s case (supra) was also noticed and it was held that authority completely debars the diploma holders from being considered as Executive Engineers but this is the case where both categories of persons are held eligible for promotion to the higher post and, therefore, State of J. & K.'s case (supra) has no application and the decision rendered in Mohd. Shujat Ali's case (supra) is applicable on all fours.

31. Similarly, in the case of the Employment of A.P. Dairy Development Co-operative Federation Ltd., Indian Dairy Diploma Holders Welfare Association v. Managing Director, A.P. Dairy Development Co-operative Federation Ltd., Hyderabad and Ors. 1988 LAB. I.C. 1822, it was held that the Managers Gr. II constitute one indivisible category of employees. They are drawn from different sources and yet there is complete fusion once the fitment into the category takes place. The Employees drawn from different sources constitute a single integrated cadre. They discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in respect of assignment. When the question of promoting Managers Gr. II to the next higher cadre Gr. I is considered, the eligibility fixed is seven years for diploma holders and five years for degree holders. This is to bring in line the academic excellence and the experience of the graduates and diploma holders to the same level. Once a common cadre of Gr. II Managers, eligible for promotion as Managers Gr. I is drawn there is no justification for fixing up a quota as between graduates and the diploma holders. Thus, it was a case of employment drawn from two different sources constituting a single integrated cadre. In this case, the diploma holders and degree-holders Junior Engineer/Overseer do not constitute a single integrated cadre. By an amendment in the Regulations, the diploma holders are described as Overseer and degree-holders are described as Junior Engineer. Now, the Overseers have been redesignated as Junior Engineer Gr. II and the Degree holder Junior Engineers have been redesignated as Junior Engineer Gr. I. It is pertinent to mention here that in the Regulations, the qualifications required for the posts of Junior Engineer Gr. I (degree holders) and Junior Engineers Gr. II (diploma holders) have also been provided differently. Although, their pay scales are similar but a Junior Engineer Gr. II (diploma holder) is paid the initial of the basic salary whereas a Junior Engineer Gr. I (degree holder) is paid the initial basic salary with five advance increments. Even the seniority lists of Junior Engineer Gr. I and Junior Engineer Gr. II is being maintained separately and separate ratio is provided for promotion to the post of Assistant Engineer (Electricals). Thus, it is not at all a case of integrated cadre with a common seniority and, therefore, the decision of their lordships of the Supreme Court in Mohd. Shujat Ali's case : (1976)IILLJ115SC has little application to the facts of the present case. This case is fully covered by the ratio of the decision of their lordships of the Supreme Court in State of J. & K.'s case : (1974)ILLJ121SC , wherein it has been held that the educational qualification is the safe criterion for determining validity of a classification and if the object of the classification is to achieve administrative efficiency in Engineering services, the classification is clearly co-related to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment. In this case, the degree-holders are directly entitled to be appointed as Assistant Engineers (Electricals) but on account of the paucity of posts, they accept the junior posts as Junior Engineers. In order to attract better talents to the posts of Junior Engineers, the degree-holders are given the higher start of the pay and are provided better promotional avenues on account of their higher qualifications and higher mental equipment. Thus, there is a reasonable nexus between the object sought to be achieved and the classification that has been made. It is true that the persons who do not get admission in the degree course on account of their obtaining less marks, are given admission in the diploma course. The degree course is of five years and the diploma course is of only three years. Thus, the higher start of the pay is being given to the degree holders in order to attract them to accept the lower job as Junior Engineer. As stated above, these two cadres of Junior Engineer Gr. I (degree holders) and Junior Engineer Gr. II (diploma holders) have not been integrated or fused into one common cadre. Their seniority is being maintained separately since the appointment of the petitioners in the year 1972 and 1977 but they raised no grouse about it for the past about 14 and 10 years respectively and even their seniority was decided way back in the year 1980 without arty demur from their side. As stated above, this is not the case in which the persons selected from two different sources are integrated in one common cadre having the common seniority list and therefore, the decision of their lordships of the Supreme Court in Mohd. Shujat Ali's case AIR 1974 SC 1631 and the decision of the Delhi High Court in Kimtilal's case (supra) and the decision of the Andhra Pradesh High Court in the Employment of A.P. Dairy Development Co-operative Federation Ltd. Indian Dairy Diploma Holders Welfare Association's case (supra) have no application to the facts of the present case. Our attention was also drawn to a decision of their lordships of the Supreme Court in Punjab State Electricity Board v. Ravinder Kumar Sharma : (1987)ILLJ115SC . That was also a case where there was a common integrated seniority list of Line Men (degree holders) and Line Men (diploma holders) and the post of Line Men (diploma holders) and the post of Line Men (degree holders) form the common cadre having the common seniority list and, therefore, that decision too has no application to the facts of the present case, A Division Bench of the Punjab & Haryana High Court in Sukhdev Raj v. Punjab State Electricity Board 1980 (3) SLR 75 has held that where there is a common cadre of Line Superintendents diploma holders and degree holders having the common seniority list, they cannot be discriminated as regards their promotional opportunities. Since, in this case, there is no such common cadre of Junior Engineers diploma holders and degree holders having the common seniority list, the decision in Sukhdevraj's case (supra) has no application to the facts of the present case.

32. Mr. M.L. Kala, the learned Counsel appearing for the respondents has drawn our attention to a decision of their lordships of the Supreme Court in State of Mysore's case AIR 1968 SC 349, wherein it was held that the classification of two grades of tracers one for matriculate tracers with a higher pay scale and the other for non-matriculate tracers with a lower pay scale is no violative of Articles 14 and 16 of the Constitution. Thus, the higher qualifications have been held to be a reasonable classification by their lordships of the Supreme Court.

33. Our attention was also drawn to a decision of their lordships of the Supreme Court in Air India v. Nargesh Meerza and Ors. : (1981)IILLJ314SC , wherein it has been observed:

that even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity. Though a rule of universal application cannot be laid down. In orders to judge, whether a separate category has been carved out of a class of service, the circumstances such as the nature, mode and manner of recruitment of a particular category from the very start; the classification of the particular category; the terms and conditions of service of the members of the category; the nature and character of the posts and promotional avenues; the special attributes that the particular category possesses which are not to be found in other classes and the like, have generally to be examined. It is difficult to lay down a rule of universal application but the circumstances mentioned above may be taken to be illustrative guidelines for determining the question.

Thus, any classification which is reasonable can be upheld and as held by their lordships of the Supreme Court in State of J. & K.'s case : (1974)ILLJ121SC there is presumption of such a reasonableness in the classification and if somebody wants to prove it unreasonable, then the burden lies on him to prove it.

34. Mr. M.L. Kala, the learned Counsel appearing for the respondents has further drawn our attention to a decision of their lordships of the Supreme Court in State of U.P. v. J.P. Chaurasia AIR 1989 SC 19, wherein it has been observed as follows:

that the answer to the question whether two posts are equal or should carry equal pay depends upon several factors. It does not just depend upon either the nature of work or volume of work done. Primarily, it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar; but there may be difference in degree in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Govt. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commissioner Committee, the Court should normally accept it. The Court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration.

It was further observed that the entitlement to the higher pay scales depends upon seniority-cum-merit or merit-cum-seniority. The differentiation so made in the same cadre will not amount to discrimination. The classification based on experience is a reasonable classification. It has a rational nexus with the object to be achieved there from. To hold other wise, it would be detrimental to the interest of the service itself. It was also observed that there can be two scales of pay in the same case of persons performing the same or similar work or duties.

35. Our attention was further drawn to a decision of their lordships of the Supreme Court in v. Markendeya v. State of A.P. AIR 1989 SC 1388. That was a case of graduate supervisors and non-graduate supervisors in the Andhra Pradesh Engineering Subordinate Service. They were not integrated into one common class of service and, therefore, it was held that the non-graduate supervisors cannot claim parity regarding pay scales with graduate supervisors. The prescribing lower scale of pay for non-graduate supervisors was held to be not violative of Articles 14 and 16 of the Constitution. Thus, the decision of their lordships of the Supreme Court in State of U.P.'s case AIR 1989 SC 19 and v. Markendaya's case AIR 1989 SC 1388 fully answer the contention of Mr. P.P. Choudhary, the learned Counsel appearing for the petitioners as regards equal pay for equal work. In this respect, our attention was also drawn to Maheshwar Singh v. State of Bihar 1985 (2) SLR 511; Ude Bhan v. Punjab State Electricity Board 1976 (1) SLR 600; T.M. Pothan v. State of Kerala 1976 (1) SLR 650; Jatinder Singh v. Punjab State Electricity Board 1986 (1) SLR 692 and A.S. Parmar v. State of Haryana 1984 (1) SLR 454, wherein it has been observed that the classification based on higher educational qualification for higher pay and better promotional avenues has been held to be reasonable and it does not offend Articles 14 and 16 of the Constitution.

36. We are, therefore, firmly of the view that it is not a case of integrated cadre where Overseer/Junior Engineer Gr. II (diploma holders) and Junior Engineer/Junior Engineer Gr. I (degree holders) have been integrated into a common cadre having the common seniority. Actually, their recruitment is being made out of one examination but they are treated as two separate cadres from the very beginning. The diploma holders are called as Overseer/Junior Engineer Gr. II whereas the degree-holders are called as Junior Engineer/Junior Engineer Gr. I. Even they are paid differently, though their pay scale is one. A degree-holder is granted five advance increments at the time of his appointment whereas at the time of appointment, a diploma holder is fixed at the initial minimum of his basic pay. Their seniority list is also maintained separately. Thus, there is a reasonable nexus between the object sought to be achieved and the classification that has been made and, therefore, this classification does not offend Articles 14 and 16 of the Constitution. Even the principle of equal pay for equal work cannot be invoked or applied in variably to every kind of service and certainly it cannot be invoked in the area of professional services, when these are to be compensated. In this respect, reliance is made on a decision of their lordships of the Supreme Court in C. Girijambal v. Govt. of A.P. : (1981)ILLJ314SC , wherein it has been held that it cannot be suggested that for doing the job of dressing a wound, which a doctor as well as a compounder can do, a doctor cannot be compensated more than a compounder. Likewise, the Overseer/Junior Engineer Gr. II, Junior Engineer/Junior Engineer Gr. I and Assistant Engineer perform the same type of job but still they cannot be treated similarly. Higher start of pay can be given on account of higher educational qualifications. Moreover, the Overseer/Junior Engineer Gr. II (diploma-holders) and Junior Engineer/Junior Engineer Gr. I (degree-holders) are fixed in the same pay scale and it has been the consistent view of their lordships of the Supreme Court that equal pay means payment in the same pay-scale. In this respect, reliance has been placed on a decision of their lordships of the Supreme Court in H.G. Kulkarni v. S.E. Belagaum Circle 1984 (3) SLR 776, wherein it has been held that whatever may be given to equal work', the petitioner is entitled to the pay scale of the post which he holds.

37. In Federation of A.I.C. & C.E. Stenographers v. UOI : [1988]3SCR998 , it was held by their lordships of the Supreme Court that equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make difference. It was further observed that it is important so emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right. There is no quarrel about this principles. In this case, this decision is of little relevance because the Overseers/Junior Engineers Gr. II and Junior Engineers/Junior Engineers Gr. I are being paid salary in pay scale No. 6. However, the higher start of pay to the degree holders is permissible on account of acquisition of their higher qualifications.

38. The upshot of the entire discussion is that the Junior Engineers/Junior Engineers Gr. I (degree holders) and Overseers/Junior Engineers Gr. II (diploma holders) constitute two different cadres. May be that they are selected by the same process but as per the Rules, they form two different cadres. They are not integrated in one cadre having common seniority list. On the basis of higher educational qualifications, the degree holders are paid higher start of the pay, which is permissible as per law. It is not a case of treating equals as unequals but it is a case where the differentiation in the pay as also promotional avenues has been made on the basis of a reasonable classification, which has reasonable nexus to the object sought to be achieved and, therefore, neither the higher start of pay nor better promotional avenues to the degree holders offends Articles 14 and 16 of the Constitution.

39. In the result, we find no force in these writ petitions and they are dismissed. The parties are left to bear their own costs of these writ petitions.