REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5122  OF 2007

Dilip Kumar Garg and another .. Appellant (s)

-versus-

State of U.P. and others ..       Respondent (s)

J U D G M E N T

MARKANDEY KATJU, J.

1. This appeal by special leave has been filed against the judgment and

order dated 3.11.2006 in Civil Misc. Writ Petition No. 78513 of 2005 of the

High Court of Judicature at Allahabad.

2. Heard learned counsel for the parties and perused the record.

3. The dispute in this appeal is regarding the validity of Rule 5(ii) of the

U.P.  Public  works  Department  Group-B Civil  Engineering  Service  Rules

2004 (in short ‘the 2004 Rules’).

4. Rule 5 of the 2004 Rules states :

“5.  Recruitment to the posts in the service shall be made from the following sources:

(i) Fifty percent by direct recruitment through the Commission. (ii) Fifty  percent  by  promotion  through  the  Commission  from

amongst  the  substantively appointed Junior  Engineers  (Civil) and Junior  Engineers (Technical)  who have completed seven years service as such on the first day of the year of recruitment.

Provided that the promotion shall  be made in such a manner that ninety percent posts shall be filled up by Junior Engineers (Civil) and ten percent posts shall be filled up by Junior Engineers (Technical).”       

5. The dispute is between the Junior Engineers of the PWD department

of the  U.P. Government  who are degree holders  and those who are only

diploma holders.  

6. The  submission  of  Shri  B.A.  Bobde,  learned  counsel  for  the

appellants (the degree holders) is that while the U.P. Service of Engineers

(Building  and  Road  Branch)  (Class  II)  Rules,  1936  (in  short  ‘the  1936

Rules) provided in Rule 9(ii) thereof that no Junior Engineer who was only

diploma holder  would  be  promoted  as  Assistant  Engineer  unless  he  has

passed the qualifying examination that the Government may prescribe, this

requirement has been done away with by rule 5 of the 2004 Rules.

7. It  may be  mentioned  that  in  1966 there  was an amendment  to  the

1936 Rules which provided that a Junior Engineer who is a diploma holder

could be promoted as Assistant Engineer provided he  either acquired the

qualification  prescribed  in  Rule  9(1)  or  he  passed  the  qualifying

examination.

8. Thereafter  certain  amendments  were made to  the Rules,  but  in  our

opinion they are not relevant in the present case.

9. The submission of Shri  Bobde is that Rule 5(ii)  of the 2004 Rules

violates Article 14 of the Constitution, because it makes unequals as equals

by completely divesting the requirement for the Junior Engineers who are

only diploma holders either of acquiring the requisite technical qualification

or passing a qualifying examination for promotion as Assistant Engineer.  It

is submitted that Article 14 can be violated not only by treating equals as

unequals, but also by treating unequals as equals.

10. In  State of Jammu & Kashmir vs.  Triloki Nath Khosa & others

AIR 1974 SC 1, the rule which provided that only degree holders in the

cadre  of  Assistant  Engineers  shall  be  entitled  to  be  considered  for

promotion  to  the  next  higher  cadre  of  Executive  Engineers  while  the

diploma holder Assistant  Engineers  were not  eligible  for such promotion

was challenged as violative of Article 14.  However, the Constitution Bench

of this Court repelled this challenge and observed that though the persons

appointed directly and by promotion were integrated into a common class of

Assistant Engineers, they could, for the purpose of promotion to the cadre

of  Executive  Engineers,  be  classified  on  the  basis  of  educational

qualifications.

11. However, in Mohammad Shujat Ali & others vs. Union of India &

others, AIR 1974 SC 1631, another Constitution Bench of this Court struck

a  different  note  and  observed  that  for  promotion  to  a  higher  post,

discrimination  based  on  educational  qualifications  not  obligated  by  the

nature of duties or responsibilities of the higher post would be violative of

Article 14 of the Constitution.   

12. In  Roop  Chand  Adlakha  &  others vs.  Delhi  Development

Authority & others,  AIR 1989 SC 307, this Court while taking note of

T.N. Khosa’s case (supra) and  Mohd. Shujat Ali’s case (supra) observed

in para 7 as under:

“  7.  ……If  the  differences  in  the  qualification  has  a reasonable  relation  to  the  nature  of  duties  and responsibilities, that go with and are attendant upon the promotional-post,  the  more  advantageous  treatment  of those who possess higher technical qualifications can be legitimized on the doctrine of classification.  There may, conceivably,  be  cases  where  the  differences  in  the educational qualifications may not be sufficient to give any preferential treatment to one class of candidates as against another.  Whether the classification is reasonable or not must, therefore, necessarily depend upon facts of each case and the circumstances obtaining at the relevant time.  When the state makes a classification between two sources, unless the vice of the classification is writ large on the face of it,  the person assailing the classification must show that it is unreasonable and violative of Article 14.   A  wooden  equality  as  between  all  classes  of employees  irrespective  of  all  distinctions  or qualifications,  or  job-requirements  is  neither constitutionally  compelled  nor  practically  meaningful. This Court in General Manager, South Central Railway vs. A.V.R. Siddhanti, (1974) 3 SC 207 at p. 214 : (AIR 1974 SC 1755 at p. 1`760 observed :

“….A wooden equality as between all  classes of employees  regardless  of  qualifications,  kind  of jobs,  nature of responsibility and performance of the employees is not intended, nor is it practicable if  the  administration  is  to  run.  Indeed,  the maintenance of such a ‘classless’ and undiscerning

‘equality’  where,  in  reality,  glaring  inequalities and intelligible  differentia  exist,  will  deprive the guarantee  of  its  practical  content.   Broad classification  based  on  reason,  executive pragmatism  and  experience  having  a  direct relation  with  the  achievement  of  efficiency  in administration, is permissible….”     

13. In P. Murugesan and others vs.  State of Tamil Nadu and others,

(1993) 2 SCC 340, this Court held up the validity of the rule prescribing the

ratio of 3:1 between graduates and diploma holders in promotion as also the

longer qualifying period for service for diploma holders.  While noting the

earlier decisions a three-Judge Bench of this Court observed:

“14.  This  decision  clearly  supports  the  appellant’s contention  and  goes  to  sustain  the  validity  of  the impugned  amendment.   If  the  diploma holders  can  be barred  altogether  from  promotion,  it  is  difficult  to appreciate  how  and  why  is  the  rule-making  authority precluded  from  restricting  the  promotion.  The  rule- making authority may be of the opinion, having regard to the  efficiency of  the  administration  and other  relevant circumstances  that  while  it  is  not  necessary to  bar  the diploma  holders  from  promotion  altogether,  their chances of promotion should be restricted.  On principle, there is no basis for the contention that only two options are  open  to  a  rule-making  authority  –  either  bar  the diploma  holders  altogether  or  allow  them unrestricted promotion on par with the graduates.”

14. In  J.  Ranga  Swamy vs.  Govenrment  of  Andhra  Pradesh  and

others, AIR 1990 SC 535 and in State of Rajasthan and others vs.  Lata

Arun,  AIR  2002  SC  2642,  this  Court  observed  that  the  eligibility

qualification for admission to a course or for recruitment or promotion in

service are matters to be considered by the appropriate authority, and not by

the Courts.     

15. In the present case, what we find is that Rule 5(ii) of the 2004 Rules

has done away with the requirement of passing a qualifying examination for

the diploma holder Junior Engineers for promotion as Assistant Engineers,

and they have been placed at par with degree holder Junior Engineer for this

purpose.  We  see  no  unconstitutionality  or  illegality  in  the  same.   It  is

entirely for the authorities to decide whether the degree holders and diploma

holders should be treated at par or not for the purpose of promotion from the

post of Junior Engineer to the post of Assistant Engineer.

16. Shri Bobde, learned counsel for the appellants submitted that degree

holders Junior Engineers have always been treated differently from Junior

Engineers who are only diploma holders for the purpose of promotion, and

that  the  latter  have  always  been  required  either  to  get  the  requisite

qualification  or  pass  the  qualifying examination.   In  our opinion,  merely

because in the past they have been treated differently does not mean that

they cannot be treated identically subsequently.

17. In our opinion Article 14 should not be stretched too far, otherwise it

will  make  the  functioning  of  the  administration  impossible.  The

administrative  authorities  are  in  the  best  position  to  decide  the  requisite

qualifications  for  promotion  from Junior  Engineer  to  Assistant  Engineer,

and it is not for this Court to sit over their decision like a Court of Appeal.

The administrative authorities  have experience in  administration,  and the

Court must respect this, and should not interfere readily with administrative

decisions. (See Union of India  vs.  Pushpa Rani and others 2008 (9) SCC

242 and Official Liquidator  vs.  Dayanand and others 2008 (10) SCC 1).

18. The decision to treat all Junior Engineers, whether degree holders or

diploma holders, as equals for the purpose of promotion is a policy decision,

and it is well-settled that this Court should not ordinarily interfere in policy

decisions unless there is clear violation of some constitutional provision or

the statute.   We find no such violation in this case.

19. In Tata Cellular vs Union of India, AIR 1996 SC 11 SC, it has been

held that there should be judicial restraint in administrative decision.  This

principle  will  apply  all  the  more  to  a  Rule  under  Article  309  of  the

Constitution.

20. For  the  reasons  afore-mentioned,  this  appeal  fails  and  is  hereby

dismissed.  There shall be no order as to costs.

21. The Interlocutory Application for intervention stands dismissed as the

same becomes infructuous in view of our decision given in Civil  Appeal

No. 5122/2007.  

………………………..J. (R. V. Raveendran)

………………………J. (Markandey Katju)

New Delhi; March 3, 2009