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PETITIONER: N. ABDUL BASHEER & ORS. ETC. ETC.

       Vs.

RESPONDENT: K.K. KARUNAKARAN & ORS.

DATE OF JUDGMENT05/05/1989

BENCH: PATHAK, R.S. (CJ) BENCH: PATHAK, R.S. (CJ) MUKHARJI, SABYASACHI (J) NATRAJAN, S. (J)

CITATION:  1989 AIR 1624            1989 SCR  (3) 201  1989 SCC  Supl.  (2) 344 JT 1989 (2)   449  1989 SCALE  (1)1473

ACT:     Civil Services: Kerala Excise & Prohibition  Subordinate Service Rules, Special Rule 2--Promotion from post of Excise Prevention  Officer to Second Grade Excise  Inspector--Ratio 1:3 for graduates and non graduates--Prescription  for--Held discriminatory and ultra vires.     Constitution of India, 1950: Articles 14 and  16---Serv- ice  conditions--Government should decide the  consideration which underlie a policy that is formulated--Only when viola- tive  of  Constitution--Courts entitled to strike  down  the rules.

HEADNOTE:     The respondents, who were non-graduate Excise Preventive Officers  in  the Excise Department, had challenged  in  the High Court the amendment made to the original Special Rule 2 of  the Special Rules for the Kerala Excise and  Prohibition Subordinate Service whereby the ratio of 1:3 between  gradu- ates  and  non-graduates  was introduced in  the  matter  of promotion from the category of Excise Preventive Officers to that  of Second Grade Excise Inspectors. They had  contended that  as graduates and non-graduates were both  regarded  as eligible  for promotion to the post of Second  Grade  Excise Inspectors. no differentiation should have been made between them when prescribing a rule of quota for promotion.     The learned Single Judge allowed the writ and held  that the amendment to Special Rule 2 was violative of Articles 14 and  16  of the Constitution. The State of  Kerala  and  the private  appellants,  who were  graduate  Excise  Preventive Officers  and were holding the post of Second  Grade  Excise Inspectors.  filed appeals. It was contended by them  before the  Division Bench that (i) the preference shown to  gradu- ates in the matter of promotion represented the  recognition of  graduation  as a standard of merit which  would  promote administrative efficiency, and (ii) the amendment to Special Rule  2  was  the result of a  historical  background  which justified preferential treatment. It was pointed out that as graduates and non-graduates had all along been 202 treated  differently in the matter of promotion to the  post

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of  Excise  Inspector, the classification brought  about  by amending Special Rule 2 could not be regarded as  unreasona- ble.     The  Division Bench held that the amendment  to  Special Rule 2 of the Kerala Excise & Prohibition Subordinate  Serv- ice Rules was ultra vires. Dismissing the appeals, this Court     HELD:  (1)  The history of the evolution of  the  Kerala Excise  and  Prohibition Subordinate Service  has  shown  no uniformity either in approach or in object. The history  has varied  with the circumstances prevailing before  and  after the  reorganisation of the State. The conditions  pertaining to the service. and respecting which the constitution of the service  varied  from time to time, showed  fluctuations.  A consistent  or  coherent policy in favour of  graduates  was absent.  This is not a case where the cadre of officers  was kept  in two separate divisions. It was a single cadre,  and they were all equal members of it. There is no evidence that graduate  Preventive Officers enjoyed higher pay  than  non- graduate Preventive Officers.[208E-G]     Mohammad  Shujat All &. Ors. v. Union of India [1975]  1 SCR  449 and Col. A.S. Iyer v. V. Balasubramanyam, [1980]  1 SCC 634, distinguished. (2) The Conditions of employment and the incidents of  serv- ice  the  instant  case, recognise  no  distinction  between graduate  and  non-graduate Officers and  for  all  material purposes  they  are effectively treated as  equivalent.  The nature of the duties of Preventive Officers whether graduate or  non-graduate was identical, and both were put  to  field work.  Non-graduate  Preventive Officers  were  regarded  as competent  as  graduate  Preventive Officers.  There  is  no evidence  of  any  special responsibility  being  vested  in graduate Preventive Officers. [208H; 209A, E]     State of Jammu & Kashmir v. Triloki Nath Khosa, [1974] 1 SCR  771;  S.L. Sachdev v. Union of India, [1980]  1  S.C.R. 971, distinguished.     H.H.  Shri Swamiji of Shri Admar Mutt  v.  Commissioner, Hindu Religious & Charitable Endowment Department, [1980]  1 SCR  368 and Motor General Traders v. State of  Andhra  Pra- desh, [1984] 1 SCC 222, referred to.     (3) Ordinarily, it is for the Government to decide  upon the considerations which, in its judgment, should underlie a policy to be 203 formulated  by  it. But if the considerations  are  such  as prove  to  be of no relevance to the object of  the  measure framed by the Government. it is always open to the Court  to strike down the differentiation as being violative of  Arti- cles 14 and 16 of the Constitution. [209D-E]     (4)  The  learned Single Judge as well as  the  Division Bench were right in holding that the prescription of a ratio dividing the quota of promotion between graduate  Preventive Officers and non-graduate Preventive Officers is invalid  on the  ground that it violates Articles 14 and 16 of the  Con- stitution. [209B-C]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1553  to 1556 of 198 1 etc.     From  the  Judgment  and Order dated  20.3.1981  of  the Kerala High Court in W.P. Nos. 166, 177,223 and 243 of 1980.     T.S. Krishnamurthy Iyer, G.L. Sanghi M.M. Abdul  Khader, M.K. Ramamurthi, G. Vishwanatha Iyer, Ms. Shanta Vasudeavan,

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A.S.  Nambiar, K.M.K. Nair, E.M.S. Anam, V.J. Francis,  O.V. Radhakrishnan and N. Sudhakaran, for the appearing parties. The Judgment of the Court was delivered by     PATHAK, CJ. These appeals by graduate Excise  Inspectors are directed against the judgment and order dated 20  March, 1981 of the High Court of Kerala holding that the  amendment to Special Rule 2 of the Kerala Excise & Prohibition  Subor- dinate Service Rules is ultra vires.     The  writ  petitions were filed by  non-graduate  Excise Inspectors alleging that the amendment to Special Rule 2  of the  aforesaid  Rules  violates Articles 14 and  16  of  the Constitution  inasmuch  as an invidious  discrimination  has been made between graduates and non-graduates by prescribing a  ratio  between them in the matter of promotion  from  the post  of Excise Preventive Officer to that of  Second  Grade Excise  Inspectors.  As all the cases have  proceeded  on  a common  factual basis, we shall take up the  appeal  arising out of O.P. 3760 of 1978 for the purpose of this judgment.      The petitioner in O.P. 3760 of 1978 joined the post  of Excise  Guard on 2 April, 1960. He was promoted on 12  Janu- ary,  1966  as  Excise Preventive Officer. In  the  list  of Preventive Officers in the 204 Excise Department as on 1 August, 1970 he was ranked No. 131 while  the  third respondent was ranked at number  390.  The third respondent was promoted earlier although he was junior to  the  petitioner. This was on the ground that  he  was  a graduate  and the petitioner was a non-graduate.  The  peti- tioner  contended that as graduates and  non-graduates  were both  regarded  as  eligible for promotion to  the  post  of Second  Grade  Excise Inspectors no  differentiation  should have been made between them when prescribing a rule of quota for  promotion.  The writ petition was heard  by  a  learned Single Judge, who held that the amendment to Special Rule  2 was violative of Articles 14 and 16 of the Constitution.  It may be noted that the original Special Rule 2 of the Special Rules  for  the Kerala Excise  and  Prohibition  Subordinate Service  was  amended by G.O.P.No. 79/78/TD dated  23  June, 1978  whereby the ratio 1:3 between graduate and  non-gradu- ates was introduced into the Special Rules in the matter  of promotion from the category of Excise Preventive Officers to that  of Second Grade Excise Inspectors. The  amendment  was deemed  to have come into force retrospectively from 9  Sep- tember,  1974  when the Special Rules were brought  in.  The learned Single Judge directed the respondents in the case to cause  the Departmental Promotion Committee to  be  convened within  two  months to prepare a select list in  order  that promotions on a regular basis could be made.     Against the judgment of the learned Single Judge in  the different cases, appeals were filed before a Division  Bench of the High Court. Two contentions were raised on behalf  of the appellants, who in some of the appeals were the State of Kerala  and  the  Deputy Commissioner of  Excise,  Board  of Revenue,  Trivandrum  and in other cases were  a  number  of private  respondents in the original petitions and who  held the post of Excise Inspector.     Two contentions were raised by the appellants before the Division Bench of the High Court. It was contended that  the preference  shown  to  graduates by  prescribing  under  the amended special Rule 2 the ratio 1:3 represents the recogni- tion of graduation as a standard of merit and, it was urged, officers  with more merit in the post of  Excise  Inspectors would  promote administrative efficiency. It was  also  con- tended that the amendment to Special Rule 2 is the result of

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an historical background which justifies preferential treat- ment. It was pointed out that as graduates and non-graduates had  all  along been treated differently in  the  matter  of promotion  to the post of Excise Inspector, the  classifica- tion  brought about by amending Special Rule 2 could not  be regarded as unreasonable. 205     It  will  be  appropriate to set  forth  the  historical background out of which the present controversy arises. From the year 1935, in the erstwhile State of Travancore  prefer- ence was given to graduates in the matter of promotion. When the  State  of Kerala was constituted by the merger  of  the Travancore  and  Cochin areas with effect from  1  November, 1956  a  rule was promulgated in the  Excise  Department  of Kerala prescribing a ratio in the matter of promotion to the post of Excise Inspectors by an order dated 23 August, 1957. The Rule regulated appointments to posts of Guards,  Preven- tive  Officers  and Second Grade Inspectors  in  the  Excise Department.  Clause (d) related to Second Grade  Excise  In- spectors and it provided:               "(d)  Second   Grade   Excise   Inspectors:  A               margin of twentyfive per cent of the vacancies               in the cadre of Second Grade Excise Inspectors               will  be  left for being filled up  by  direct               recruitment  by the Public Service  Commission               of  graduates  ......  The  remaining  seventy               five  per cent will be filled up by  promoting               L.D. Clerks  .......  and Preventive  Officers               on  a 50:50 basis observing the ratio. of  3:1               between graduates and non-graduates in  either               case."     Clause    (d)    applied    to    personnel    of    the Travancore--Cochin  area. The officers allotted from  Madras were  governed  by  the Madras Rules pending  the  issue  of common rules applicable to both. By reason of this Order  25 per cent of the post of Second Grade Excise Inspectors  were to  be filled up by direct recruitment, 37 1/2 per  cent  by promoting  Lower  Division  Clerks and 37 1/2  per  cent  by promoting Preventive Officers. Within the promotion quota of Preventive  Officers  promotion was to be  effected  between graduates and non-graduates in the ratio of 3: 1. This  rule applied  to Travancore and Cochin personnel appointed  prior to  1 November, 1956. After taking note of the situation  in different  parts  of the State, the Government  order  dated 19th  November,  1957 prescribed the ratio  of  1:1  between graduates  and  non-graduates on an interim  basis.  It  was mentioned  there that the ultimate aim was to do  away  with the  distinction  between  graduates  and  non-graduates  in offices  other  than  the Secretariat,  the  Public  Service Commission and the High Court. Subsequently, however, it was clarified  on  8 July, 1966 that the Order was  intended  to apply  to ministerial posts only and not to executive  posts such as those of Preventive Officers.     The  question of the applicability of the  graduate  and non-graduate  ratio was examined by the High Court  in  Writ Petitions filed 206 in 1972, and the High Court directed the Government to  look into  the matter and finalise the provisional  promotion  of Excise  Inspectors accordingly. It was thereafter that  Spe- cial Rules for the Kerala Excise and Prohibition Subordinate Service dated 9 September, 1974 were published. They provide for appointment to the posts of Excise Inspectors by  direct recruitment,  promotion from the category of Excise  Preven- tive  Officers and recruitment by transfer from among  Upper

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Division Clerks employed in the Excise Department. The Rules did  not provide for any graduate non-graduate ratio in  the matter  of promotion, apparently because the ratio  had  al- ready been provided earlier by the Government order dated 23 August,  1957.  But meanwhile the High Court held  that  the Government order dated 23 August, 1957 could not be  applied to  those  appointed  after the formation of  the  State  of Kerala.  To  fill up the vacuum in respect  of  appointments after  1 November, 1956 an order dated 4 October,  1974  was made  applicable retrospectively to all appointments  on  or after 1 November, 1956 till the date of issue of the Special Rules  for  the Excise Subordinate Service. It  adopted  the ratio  of 3:1 between graduates and non-graduate for  promo- tion  to the post of Second Grade Excise Inspectors for  the entire  State of Kerala, and it specifically  provided  that this graduate non-graduate ratio 3:1 would apply to the case of persons who had entered the Excise Department on or after 1 November, 1956, and that it would operate until the coming into force of the Kerala Excise and Prohibition  Subordinate Service  Rules.  This was, however, challenged in  the  High Court  and the High Court held that it was not open  to  the Government  to apply the ratio of 3:1 by an executive  order passed  in  1974 and made retrospectively from  1  November, 1956  inasmuch  as  an executive order could  not  be  given retrospective effect. There was, therefore, no provision  in law  prescribing  a graduate  non-graduate  ratio  governing appointments made on and from 1 November. 1956. As has  been stated  Special  Rules for the  Excise  Subordinate  Service dated  9 September, 1974 had been published meanwhile.  Spe- cial Rule 2 was amended with effect from 9 September,  1974, the date of commencement of the Special Rules, providing for a ratio of 1:3 between graduates and non-graduates as from 9 September,  1974. In consequence. while up to  9  September, 1974  there was no valid Rule in force applying  a  graduate non-graduate  ratio for promotion, there was a  rule  intro- duced in 1978 by amendment to the Special Rules  prescribing a  ratio from 9 September, 1974 onwards. The gap  between  1 November, 1956 and 9 September, 1974 was sought to be filled thereafter  by an Order dated 6 March, 1981  which  provided that the appointment of Excise Inspectors during the  period from 1 November, 1956 and ending 8 September, 1974 from 207 among Clerks and Preventive Officers who have entered  serv- ice on or after 1 November, 1956 would be made in the  ratio of 1:1 between Clerks and Preventive Officers. simultaneous- ly observing the ratio 01’ 3: l was observed between  gradu- ates non-graduates. ’The Rule was deemed to have into  force from 1 November, 1956.     It  will thus be evident that in the case of  Preventive Officers appointed on or after 1 November, 1956, the  gradu- ate non-graduate ratio of 3:1 was observed between 1  Novem- ber,  1956 and 8 September, 1974, and it became 1:3  from  9 September, 1974 onwards.     The  plea of the non-graduate Preventive  Officers  that there  should  be no preference in favour  of  the  graduate officers  was  accepted,  as we have seen,  by  the  learned Single  Judge and upheld in appeal by the Division Bench  of the High Court.     In  these appeals by graduate Excise Inspectors,  it  is contended  that  there was good and substantial  reason  for maintaining  the  ratio between  graduate  and  non-graduate Officers,  and the history of the evolution of  the  service supported  the maintenance of such ratio, and that the  High Court proceeded erroneously in assuming that the  observance of the ratio between graduates and non-graduates produced an

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invidious discrimination violative of Arts. 14 and 16 of the Constitution. We are referred to Mohammad Shujat Ali &  Ors. etc.  v. Union of India & Ors. etc., [1975] 1 SCR 449  where this  Court  upheld  the  differentiation  between  graduate supervisors and non-graduate supervisors for the purpose  of promotion as Assistant Engineers. But it is clear that  this was on the ground that the two categories of supervisors had been kept distinct and apart under the Cadre Rules from  the beginning, with different pay scales and different treatment for  the  purpose of promotion. Reference was also  made  of State  of  Jammu  & Kashmir v. Triloki Nath  Khosa  &  Ors., [1974]  1 SCR 771, but it was held there that having  regard to the object of achieving administrative efficiency in the. Engineering Service it was a just qualification to  maintain a  distinction between Assistant Engineers who  were  degree holders  and those who were merely diploma holders. In  S.L. Sachdev  & Anr. v. Union of India & Ors., [1981] 1  SCR  971 again  the  discrimination  between UDCs  drawn  from  Audit Offices  and  other UDCs in the matter  of  the  eligibility qualification for promotion was justified on the basis  that the one enjoyed greater experience and that the  distinction based  on  length  of service was directly  related  to  the object  of the classification. In Col. A.S. Iyer and  Others v.V. Balasubramanyam and Others, [1980] 1 SCC 634 upon which reliance 208 has  been placed by the Appellants, the recruits  were  from two  different sources which had not completely  fused  into one integrated service but were instead allowed to  maintain their  separate identity, and regard was had to their  basic functional character, operational capabilities and ’futuris- tic’  uses  to support the  differential  treatment  between military engineers and civilian engineers. H.H. Shri Swamiji of  Shri Admar Mutt, etc. v. The Commissioner,  Hindu  Reli- gious  & Charitable Endowments Department & Ors.,  [1980]  1 SCR  368  is a case where we find it difficult  to  see  any argument in favour of the appellants, for the passage there- in  to which our attention has been drawn  specifically  al- ludes  to the circumstance that the passing of time  results in  altering a fact situation which has the  consequence  of wearing out the basis on which the differentiation is found- ed.  So also in Motor General Traders and Anr. v.  State  of Andhra Pradesh & Others, [1984] 1 SCC 222 it was observed by this Court that an exemption provision initially valid could become  discriminatory  where with the passage of  time  the nexus with the object did not survive any longer..     We  have also heard submissions made by learned  counsel for  the appellants in Civil Appeals Nos. 1554 and  1556  of 1981,  and  they  have elaborated on the  points  raised  by learned  counsel in Civil Appeal No. 1553 of 1981 with  some differences of nuance and emphasis. In essence, the  conten- tion remains the same.     It seems to us that the history of the evolution of  the Kerala Excise and Prohibition Subordinate Service has  shown no  uniformity either in approach or in object. The  history has  varied  with the circumstances  prevailing  before  and after  the reorganisation of the State on 1 November,  1956. Originally  when more emphasis was laid on the induction  of graduate the ratio of graduate to non-graduate officers  was maintained at 3: 1. But from 9 September, 1974 the ratio was changed  inversely to 1:3. More non-graduates were  now  in- ducted into the Service. The trend shows, if anything,  that it ran in favour of absorbing more non-graduates. The condi- tions  pertaining to the service, and respecting  which  the constitution of the service varied from time to time, showed

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fluctuations.  A consistent or coherent policy in favour  of graduates was absent. This is not a case where the cadre  of officers was kept in two separate divisions. It was a single cadre,  and they were all equal members of it. There  is  no evidence  that graduate Preventive Officers  enjoyed  higher pay  than non-graduate Preventive Officers. The  High  Court has noted that the nature of the duties of Preventive  Offi- cers  whether  graduate or non-graduate was  identical,  and both were put to field work. Non-graduate Preventive 209 Officers  were regarded as competent as graduate  Preventive Officers. There is no evidence of any special responsibility being vested in graduate Preventive Officers. Once they were promoted  as  Excise  Inspectors there  was  no  distinction between graduate and non-graduate Excise Inspectors.     In  our opinion the learned Single Judge as well as  the Division Bench are right in holding that the prescription of a  ratio  dividing the quota of promotion  between  graduate Preventive Officers and non-graduate Preventive Officers  is invalid  on the ground that it violates Arts. 14 and  16  of the Constitution.     The  other  contention  raised before  the  High  Court, namely  that the ratio 1:3 between graduates and  non-gradu- ates  is supportable on the ground that the  recognition  of graduation  is recognition of merit, and that more merit  in the  post of Excise Inspectors would be conducive to  better administrative efficiency, is shortly disposed of. Ordinari- ly,  it is for the Government to decide upon the  considera- tions which, in its judgment, should underlie a policy to be formulated  by  it. But if the considerations  are  such  as prove  to  be of no relevance to the object of  the  measure framed  by the Government it is always open to the Court  to strike down the differentiation as being violative of  Arts. 14 and 16 of the Constitution. In the present case, we  have already commented on the circumstance that the conditions of employment  and the incidents of service recognise  no  dis- tinction between graduate and non-graduate Officers and that for  all material purposes they are effectively  treated  as equivalent. Accordingly, this contention must also be rejected.     In  the result, the appeals fail and are  dismissed  but there is no order as to costs. R.S.S.                                               Appeals failed. 210