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PETITIONER: STATE OF JAMMU & KASHMIR

       Vs.

RESPONDENT: TRILOKI NATH KHOSA & ORS.

DATE OF JUDGMENT26/09/1973

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. RAY, A.N. (CJ) PALEKAR, D.G. CHANDRACHUD, Y.V. BHAGWATI, P.N.

CITATION:  1974 AIR    1            1974 SCR  (1) 771  1974 SCC  (1)  19  CITATOR INFO :  F          1974 SC1631  (26,28)  F          1974 SC1755  (25)  F          1976 SC 490  (37,57,58,108,180,184,208,212,  R          1978 SC 327  (7,8)  R          1978 SC 771  (43)  R          1979 SC 478  (121)  RF         1979 SC 765  (15)  D          1979 SC1060  (19,21,25,26)  R          1980 SC 452  (57,59,69)  E          1980 SC 820  (33)  RF         1981 SC  41  (6)  RF         1981 SC1041  (11)  R          1981 SC1829  (35)  D          1985 SC 306  (7)  D          1985 SC1495  (133)  F          1986 SC 737  (17)  R          1987 SC 415  (16)  D          1987 SC1676  (16,22)  D          1987 SC2348  (3)  RF         1989 SC 307  (5,68)  F          1989 SC1256  (8)  F          1989 SC1308  (7)  D          1989 SC1624  (11)  D          1989 SC1713  (10)  RF         1991 SC  79  (25)  R          1992 SC   1  (122)

ACT: Constitution  of  India, 1950, Articles  14,  16--Jammu  and Kashmir  Engineering (Gazetted) Service  Recruitment  Rules, 1970--Persons appointed directly and by promotion integrated into common class of Assistant Engineers--If for purpose  of promotion as Executive Engineers they could be classified on the  basis of educational qualifications--Classification  if violative of articles 14 and 16.

HEADNOTE: Under  the  Recruitment Rules of 1939,  recruitment  to  the cadre  of  Assistant  Engineers in  the  Jammu  and  Kashmir

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Engineering Service was to be made by direct recruitment  of degree holders in Civil Engineering or by transfer of degree or  Diploma  holders  who have served as  Supervisor  for  a period of not less than 5 years.  The rules further provided that appointments by transfer (that is by promotion) to  the cadre  of  Executive Engineers could be made only  from  the cadre of Assistant Engineers on the basis of merit,  ability and  the previous record of the candidates.  The  Jammu  and Kashmir  Engineering (Gazetted) Service  Recruitment  Rules, 1970,  provided  that recruitment to the post  of  Executive Engineers and above was to be made only by promotion.   And, as regards promotion to the post of Executive Engineers, and to  those  only, it was provided that only  those  Assistant Engineers  who  possessed a degree in Engineering  would  be eligible  for  promotion.  Diploma holders  in  Engineering, like  the  respondents, were thus  rendered  ineligible  for promotion   as   Executive   Engineers.    The   respondents challenged   the   constitutionality  of  the   Rule.    The classification, according to the appellants, was made with a view   to   achieving  administrative  efficiency   in   the Engineering Service.  The High Court, took the view that the impugned  Rule  was violative of articles 14 and 16  of  the Constitution. In  appeal to this Court it was contended on behalf  of  the State  that it is always open to the Government to  classify its  employees so long as the classification  is  reasonable and  has  nexus with the object thereto; that if  there  are different  sources of recruitment, the  employees  recruited from  different  sources  can either  be  allowed  different conditions  of  Services  and  so  continue  to  belong  ’to different classes or the Government may integrate them  into one  class; that once the employees are integrated into  one class  they  cannot  for  the  purposes  of  promotion,   be classified again into two different classes on the basis  of differences existing at the time of recruitment; but,  after integration into one class, the employees can, in the matter of  promotion  be classified into different classes  on  the basis  of  any  intelligible differentia  as,  for  example, educational  qualifications,  which  has a  nexus  with  the object of the classification. namely, efficiency in the post of promotion.  The respondents urged that the Rules of  1939 did  not  make any distinction between  diploma-holders  and degree-holders;  that  the  rules  governing  conditions  of Service  could  not be changed retrospectively  to  classify employees  on the basis of educational qualifications so  as to deny promotion to the diploma-holders; that having regard to  the fact that from 1939 to 1970 holders of  diploma  and degree  were  treated  alike, the onus lay  heavily  on  the appellants  to  prove  the  necessity  for   differentiating between the two, which onus was not discharged on the record of   the  cases;  that  there  was  no  nexus  between   the classification and the objects to be achieved thereby and in fact  the  classification  defeated  that  object;  that  if chances of promotion were denied to a few within a class  of equals,  there  was  an  inherent  vice  attaching  to   the classification and no question of reasonableness of the  new yardstick could possibly arise; that the unreasonableness of the  classification was patent from the fact that  a  degree qualification  was  considered as a  pre-condition  for  the promotion  to  the posts of Executive Engineers but  not  to higher posts; and 772 that  if  persons  recruited  from  different  sources  were integrated  into  one class, they could  not  thereafter  be classified  so  as to permit in. favour of some  of  them  a

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preferential treatment as against others. HELD  : Though persons appointed directly and  by  promotion were integrated into a common class of Assistant  Engineers, they  could  for  purposes  of promotion  to  the  cadre  of Executive   Engineers   be  classified  on  the   basis   of educational   qualifications.   The  rule   providing   that graduates  shall  be  eligible for  such  promotion  to  the exclusion  of diploma holders does not violate  articles  14 and 16 of the Constitution. (i)  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 governs the  future right of promotion of those who are already in service.   It is  well  settled  that a Government servant  acquires  a  I status’  on  appointment to his office and 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. [779 E] (ii) It is no part of the appellant’s burden to justify  the classification  or  to establish its  constitutionality.   A classification founded on variant educational qualifications is,  for  purposes of promotion to the post of  a  Executive Engineer, to say the least, not unjust on the face of it and the  onus  therefore-cannot shift from where  it  originally lay. [780 G)      Shri  Ram Krishan Dalmia v. Justice S. R.  Tendolkar  & Ors.[1959]     S.C.R.  279, 297; State of Uttar  Pradesh  v. Kartar Singh [1964] 6S. C. R. 679,  687 and G. D. Kerkar  v. Chief Controller of Imports and Exports [1967] 2 S.C.R.  29, 34, referred to. (iii)     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   standpoint   of   the   authority   making   it,   the classification  is found to rest on a reasonable  basis,  it has  to  be  upheld.   Discrimination  is  the  essence   of classification  and  does  violence  to  the  constitutional guarantee  of equality only if it rests on  an  unreasonable basis. [781 C] (iv) There  is  no justification for the  respondent’s  plea that  the  record does not disclose the  necessity  for  the impugned  rule  of 1970.  The records show that  till  about 1968  there was a dearth of Engineering graduates.  In  1962 the  ratio between graduates and diploma holders was 1  :  2 and in 1968 it became almost 2 : 1 and in 1970 the  position remained  more  or  less  unchanged.   The  appellants  were entitled to take into account this spurt in the availability of  persons  with  higher  educational  qualifications   for manning  the  next higher post of  promotion.   Further,  it cannot  be overlooked that even under the recruitment  rules of  1939 graduates in Civil Engineering were alone  eligible for direct recruitment as Assistant Engineers in the Kashmir Engineering Service. [783 B] (v)  The   argument  that  if  the  nature  of  duties   and responsibilities  of  the  post of  Executive  Engineer  has undergone   no  significant  change,  there  would   be   no justification  for  restricting  the  field  of  choice   to graduates assumes in the Court a right of scrutiny  somewhat wider than is generally recognised.  The concept of equality has  an inherent limitation arising from the very nature  of the constitutional guarantee.  Equality is for equals.  That is  to  say,  those  who  are  similarly  circumstanced  are

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entitled to an equal treatment. Classification, however, is fraught with the danger that  it may produce artificial inequalities and therefore, 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 characterized by different and distinct attainments. Classification, therefore, must be 7 7 3 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. Judicial   scrutiny  can  therefore  extend  only   to   the consideration   whether  the  classification  rests   on   a reasonable basis and whether it bears nexus with the  object in  view.   It  cannot extend to embaring  upon  a  nice  or mathematical evaluation of the basis of classification, for, were  such an inquiry permissible, it would be open  to  the courts  to  substitute their own judgment for  that  of  the legislature  or  the rule-making authority on  the  need  to classify  or  the  desirability of  achieving  a  particular object. [784 A-C] (vi) So  judged, the classification of  Assistant  Engineers into  degree holders and diploma holders cannot be  said  to rest   on  any  unreal  or  unreasonable  basis.    If   the classification   was   made  with  a   view   to   achieving administrative  efficiency in the Engineering  Service,  the classification  is  clearly correlated, to it,  for,  higher educational qualifications are at least presumptive evidence of a higher mental equipment.  On the facts of the case  the classification  cannot  be said to rest  on  any  fortuitous circumstances.   educational   qualifications   have    been recognised by this Court as a safe criteria for  determining the validity of classification. [784 D; 785 E] State  of Mysore & Anr. v. P. Narasing Rao, [1968] 1  S.C.R. 407,  and  The  Union of India v. Dr. (Mrs.)  S.  B.  Kholi, A.I.R. 1973 S.C. 811, 813. (vii)     The  seniority list of January 1, 1971  shows  how unreal  the  argument  is that the  qualification  rule  not having  been extended to the higher echelons of service,  it can  bear  no nexus with the  attainment  of  administrative efficiency  in a comparatively lower hierarchy of  Assistant Engineers.  Dealing with practical exigencies, a rule making authority  may be guided by the realities of life, just  ,is the legislature, while making a classification, "is free  to recognize   degrees   of  harm  and  it  may   confine   its restrictions  to  those classes of cases where the  need  is deemed  to be the clearest." if the law presumably hits  the evil  where  it  is most felt, it is not  to  be  overthrown because  there  are other instances to which it  might  have been applied, [785 C, G] Bain  Peanut  Co. v. Pinson 75 L. ed. 482,  489,  Miller  v. Wilson,  59 L.ed. 632 and Keekee Gonsol, Coke Co. v.  Taylor 58 L.ed. 1288, 1289. (viii)    This  Court’s decision in Roshan Lal’s case is  no authority  for the proposition that if direct  recruits  and promotees  are  integrated into one class,  they  cannot  be classified  for purposes of promotion on a basis other  than the  one that they were drawn from different’ sources.   All that Roshan Lal’s case lays down is that direct recruits and promotees  lose  their birthmarks on fusion  into  a  common stream  of  service and they cannot  thereafter  be  treated differently by reference to the consideration that they were recruited from different sources.  Their  genetic  blemishes

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disappear once they are integrated into  a common class  and cannot be revived so as to make equals unequals once again. In the instant case classification rests fairly and squarely on the consideration of educational qualifications :  Graduates alone shall go into higher post, no matter’whether they were appointed ’as Assistant Engineers directly or by  promotion. The  discrimination,  therefore, is not in relation  to  the source of recruitment as in Roshan Lal’s case. [789 C] Roshan  Lal Tandon v. Union of India, [1968] 1  S.C.R.  185, Mervyn  Coutindo  & Ors. v. Collector of Customs,  Bombay  & Ors.,  [1966]  3 S.C.R. 600) and S. M. Pandit  v.  State  of Gujarat,   A.I.R.   1972  S.C.  252,  explained   and   held inapplicable. The  Court emphasized the necessity of adopting a  pragmatic approach  in order to harmonize the recruitments  of  public service   with  the  aspirations  of  public  servants   and cautioned against evolving, through imperceptible exten- 7 74 sions, a theory of classification which may subvert, perhaps submerge, the previous guarantee of equality.1 [790 G] Per  Bhagwati and Krishna Iyer, JJ : (concurring);  (i)  The proposition that all men are equal has working  limitations, since  absolute equality leads to procrustean  cruelty.   An imaginative   and   constructive  modus,   vivendi   between commonness  and  excellence  must  be  forged  to  make  the equality clauses viable.  The social meaning of articles  14 to  16 is neither dull uniformity nor specious  ’talentism’. it is a process of producing quality out of larger areas  of equality   extending   better  facilities  to   the   latent capabilities of the lowly. [791 B-C] ii)  In   the  present  case,  in  the  past  decades,   few Engineering  graduates  in  the State  and  few  Engineering Colleges  in  the country compelled  Government  to  recruit diploma  holders  and promote them to higher  offices.   But circumstances   have   changed,   needs   have    increased, availabilities   have  expanded  and  inequalities  at   the educational  level  have  been partly  eliminated.   And  so personnel  policy, with an eye on efficiency  have  changed. [791 G-H] (iii)     However, while striking a balance between the long hunger  for equal chance of the lowlier and  the  disturbing concern   of   the  community  for   higher   standards   of performance,  the  State should not  jettison  the  germinal principle of equality alto,-ether.  The dilemma of democracy is  as  to  how to avoid validating  the  abolition  of  the difference  between  the  good and the bad in  the  name  of equality and putting to sleep the constitutional command for expanding  the areas of equal treatment for the weaker  ones with  the  dope  of  ’special  qualifications’  measured  by expensive  and  exotie  degrees.  These  are  perhaps  meta- judicial  matters left to the other branches of  Government, but  the  Court must hold the Executive within  the  leading strings  of  egalitarian constitutionalism and  correct,  by judicial review, episodes of subtle and shady classification grossly  violative of equal justice.  That is the  heart  of the  matter.  That is the note that rings through the  first three   fundamental  rights  the  people  -have   given   to themselves. [792 B]

JUDGMENT: ORIGINAL JURISDICTION : The  judgment  of A. N. RAY, C. J. D. G. PALEKAR and  Y.  V. CHANDRACHUD  J.J. was delivered by Chandrachud,  J.  KRISHNA

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IYER, J.  delivered a separate concerning Opinion on  behalf of Bhagwati.  J. and     himself. CHANDRACHUD, J. If persons  drawn from different sources are integrated  into  one  class, can they’  be  classified  for purposes  of  promotion on the basis  of  their  educational qualifications?  That is the issue for consideration  before us. Respondents,  who are Diploma Holders in Engineering,  filed in  the  High Court of Jammu and Kashmir  a  petition  under article 226 of the Constitution to challenge the validity of certain Service Rules framed by the Government of Jammu  and Kashmir.  A Learned single Judge dismissed the petition  but in  appeal a Division Bench of the High Court took the  view that the impugned rules were violative of articles 14 and 16 of  the  Constitution.   The correctness  of  that  view  is -challenged by the State of Jammu and Kashmir in this appeal by special leave. Respondents,  who are serving in different branches  Of  the Engineering  Service  of the appellants, were  appointed  as Assistant Engineers between 1960 and 1966 by promotion  from the Subordinate Engineering 77 5 Service.  Their conditions of service were then governed  by the rules published under  Order No. 1328-C of 1939.   Those rules, to the extent material,     read thus:               The following rules prescribing the  procedure               relating   to  recruitment  to  the   gazetted               services are sanctioned:-               (3)   Special  qualifications.-Under rule,  18               of the Kashmir Civil Services Rules (General),               the   following  special  qualifications   are               prsecribed  in  the  case  of  candidates  for               direct recruitment or recruitment by transfer,               as the case may be, to the services  mentioned               below                 KASHMIR ENGINEERING SERVICE Category 2 of Class II Direct  Degree in Civil Engineering (Assistant Engineer).         of any recognised university                  By transfer (i)Degree or Diploma in                                Civil Engineering of any                                recognizedUniversity                                or UupperSubordinates                                Diploma ofany recognis-                                ed College of Engineering and                              (ii)Service as a Supervisor for                               a period of not less                               than 5 years on duty. Classlll (Ground Engineer)]    Certificate of     Ground En-                      Direct   gineering prescribed       by                               the Government of India.                KASHMIR ELECTRICAL SERVICE Category   2   of  Class  11.Direct    (i)    Degree      in Electrical                        Direct   Engineering       of     any                                 recognised University, and (Assistant Electrical Engineer).                                (ii)Practical training in an                                   Electrical Power Station.                      By transfer (i)  Degree or Diploma in                                    Electrical Engineering of                                  any recognised University                                    and                                 (ii)Practical experience in                                  an Electric Power Station." __________________________________________________________

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The  rules  further provided that appointments  by  transfer (that is, by promotion) to the cadre of Divisional Engineers (now  known as Executive Engineers) could be made only  from the  cadre of Assistant Engineers.  Promotions to the  cadre of Assistant Engineers could, in turn, be made only from the cadre of Supervisors in the Subordinate 7 76 Service.   Recruitment  by transfer was to be made  "on  the basis  of  merit,  ability and the previous  record  of  the candidates,  seniority  being  considered only  in  case  of equality  of merit, ability and excellence of record".   The scale  of pay admissible to the Assistant Engineers was  Rs. 300-20-5,00. In 1962, the appellants undertook a general revision of  pay scales and framed "Jammu and Kashmir Civil Services (Revised Pay) Rules", which were gazetted on August 6, 1962.  Rule 12 divided   the  Assistant  Engineers  into  two   categories, datewise.   Those  appointed prior to August  1,  1960  were placed  in Grade I while those, appointed subsequently  were placed  in Grade 11, regardless -of whether appointments  to the  posts of Assistant Engineers_were made directly  or  by promotion  and  whether the incumbents held a  degree  or  a diploma.  Those in Grade I were put in the pay scale of  Rs. 300-700 while those in Grade II were put in the scale of Rs. 250-600.   Officers  in Grade II were entitled  to  go  into Grade I after completing two years’ service, subject to  the availability- of vacancies. A  further  revision of pay scales was  effected  under  the "Jammu  .and  Kashmir Civil Services  (Revised  Pay)  Rules, 1968" which were gazetted on February 27, 1968.  Under  Rule 10  (IIB)  (i), Assistant Engineers were granted a  new  pay scale  of  Rs.  300-30-540-EB-35610-QB-35-750,  but  it  was provided  that the "QB at Rs. 610/- will not be  crossed  by Assistant  Engineers  with Diploma Course".  This  rule  was challenged-  by  the respondents in so far as it  denied  to them an opportunity to cross the qualification bar. Then  came  the "Jammu and  Kashmir  Engineering  (Gazetted) Service  Recruitment Rules, 1970", gazetted on  October  12, 1970.  These rules provide for appointments to the  gazetted posts in various branches of the Engineering Service of  the appellants  and supersede the old rules on the subject.   By rule 3(f) ’promotion’ is defined to mean promotion from  one class, category or grade to another class, category or grade on  the  basis  of merit  and  efficiency,  seniority  being considered  only when merit was equal.  Under  the  Schedule annexed  to  these  Rules,  recruitment  to  the  cadre   of Executive  Engineers  and  above  was to  be  made  only  by promotion.   But  as  regards  promotion  to  the  posts  of Executive Engineers, and to those only, it was provided that only  those  Assistant  Engineers  would  be  eligible   for promotion  who possessed a bachelor’s degree in  engineering or  held the qualification of A-M-I.E., Section A, &  B  and who  had  put  in  at least 7 years service  in  the  J.  K. Engineering  (Gazetted) Service.  This is the second of  the two Rules impugned in this appeal. The  case of the respondents as disclosed in their  petition was that under the, rules of 1939, Assistant Engineers  were entitled to be promoted to the higher cadre on the basis  of their  merit and record and no distinction was made  between degree-holders and diploma holders for the purposes of  such promotion.   The discrimination made by the  impugned  rules between degree-holders and diploma-holders was arbitrary and capricious because academic or technical qualifica- 7 77 tions could be germane only at the time of recruitment.  For

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purposes of promotion, efficiency and experience alone  must count.    Respondents  further  contended  that   once   the Government  appointed candidates with different academic  or technical qualifications to the same cadre, having the same, pay scale and similar duties, such candidates would form one class and they cannot be further classified for purposes  of promotion on the basis of their educational  qualifications. The,  impugned rules, according to the respondents,  brought about   a  reduction  in  rank,  deprived  them   of   equal opportunity in the matter of promotion and were violative of articles  14 and 16 of the constitution of India.   Finally, the respondents contended by their petition that it was  not competent to the Government to change the service conditions unilaterally- to the disadvantage of its employees so as  to deprive  them of their vested right of promotion  by  giving retrospective effect to the rules. The appellants, by their counter affidavit, traversed  these averments  thus  :  It  was within  the  competence  of  the Government  to  grant  a higher pay scale  to  persons  with higher educational qualifications.  Under the Rules of  1968 a higher slab of pay was sanctioned for Assistant  Engineers with higher educational qualifications and the qualification Bar  was  imposed so as to exclude diploma-holders,  with  a view   to   ensuring  administrative   efficiency   in   the Engineering service.  Under the Rules of 1970, the  Governor had  laid down the method of recruitment and had  prescribed qualifications  for  appointment to  various  categories  of posts  in  the engineering department keeping  in  view  the nature  of  duties and responsibilities  attached  to  those posts.   Classification, for purposes of promotion,  on  the basis  of  educational qualifications  has  an  intelligible differentia   and  was  therefore  not  violative   of   the constitutional   provisions   of  equality.    Lastly,   the appellants  disputed  that  application  of  the  Rules   to existing  employees  made the Rules "retrospective"  in  any sense. The  learned single Judge, who heard the  petition  rejected the respondents’ contentions but that judgment was  reversed in  appeal by a Division Bench of the High Court.   Briefly, the  Division  Bench  held that though it was  open  to  the Government  to  make  a  reasonable  classification  of  its employees,  where  the employees were grouped  together  and integrated  into one unit without reference to their  quali- fications,  they formed a single class in spite  of  initial disparity in behalf of their educational qualifications  and no  discrimination could thereafter be made between them  on the  basis of such qualifications; that  the  discrimination made  under  the Rules of 1968 between  diploma-holders  and degree-holders   was   unconstitutional  and   that   having prescribed diploma or a degree in engineering with practical experience  as  a  minimum  qualification  for  entry   into service,  it  was not open to the  Government  to  prescribe higher  educational  qualifications for promotion  from  the cadre of Assistant Engineers to that of Executive Engineers. The  main "Judgment was delivered by Mufti Bahauddin J.  who confined  his  view to the vice attaching to  the  rules  by reason of their reprospectivity.  The learned Chief Justice, by a concurring                             197 judgment  struck  down the rules for all time.   They  were, according to in so far as they applied to existing employees and would be bad applied to those who may, join the cadre in future. The  learned Attorney General, who appears on behalf of  the appellants,   contends  that  it  is  always  open  to   the

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Government  to  classify  its  employees  so  long  as   the classification  is reasonable and has nexus with the  object thereof;  that a classification cannot be held  to  infringe the equality clause unless it is actually and plapably arbi- trary;  that if there are different sources of  recruitment, the  employees recruited from different sources can  either, be  allowed different conditions of service and so  continue to.  belong  to  different classes  or  the  Government  may integrate  them into one class; that once the employees  are integrated  into  one class, they cannot,  for  purposes  of promotion, be classified again into two different classes on the   basis   of  differences  existing  at  the   time   of recruitment;  but,  after integration into  one  class,  the employees  can,  in the matter of promotion,  be  classified into  different  classes on the basis  of  any  intelligible differentia  as,  for example,  educational  qualifications, which has a nexus with the object of classification,  namely efficiency in the post of promotion. Mr.  Setalvad  who led for the  respondents  contended  that neither at the time of appointment to the post of  Assistant Engineers  nor for the purposes of promotion to the post  of Divisional Engineers (now called ’Executive Engineers’), was any  distinction made by the rules of 1939  between  diploma holders and degree-holders; that rules governing  conditions of Service could not be changed retrospectively to  classify employees  on the basis of educational qualifications so  as to deny promotion to the diploma-holders; that there was  in the instant case no nexus between the classification and the object  sought  to  be  achieved thereby  and  in  fact  the classification  defeated that object; that having regard  to the  fact  that from 1939 to 1970 holders  of  Diplomas  and Degrees  were  treated alike, the onus lay  heavily  on  the appellants  to  prove  the  necessity  for   differentiating between the two, which onus was not discharged on the record -of the case; and that, if the object of the  classification was the attainment of efficiency, the Government could  have achieved  that object, and perhaps in a better  measure.  by making  talent,  experience and efficiency as  criteria  for determining promotional opportunities. Mr.  Gupte,  appearing for Respondents 18 to  29,  took  the stand that once there is a class of equals no discrimination can be made among them on any ground whatsoever.  Therefore, if  chances of promotion are denied to a few within a  class of  equals,  there  is an inherent  vice  attaching  to  the classification and no question of the reasonableness of  the new  yardstick can possibly arise.  In the alternative,  Mr. Gupte  contended, possession of a degree  qualification  was not  a reasonable basis for segregating  degree-holders  and diploma-holders into water tight compartments.  The impugned rule  of  1970  was made in the  awareness  that  only  some Assistant Engineers were graduates and the facts of the case disclosed  no reasonable basis for  differentiation  between them  and  the  diploma-holders in regard  to  promotion  as Executive Engineers.  Finally, the learned counsel contended that the 779 unreasonableness  of the classification was patent from  the fact  that a degree qualification was prescribed as  a  pre- condition  for promotion to the post of Executive  Engineers but not to higher posts. There was neither rhyme nor  reason in  a  rule which permitted a Diploma-holder to  occupy  the post  of a Superintending Engineer or the highest post of  a Chief  Engineer but barred him from being considered  for  a lower post in the cadre of Executive Engineers.      Mr. Garg, who appears for one of the respondents,  laid

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particular     stress on the question of onus. He  contended that the heavy onus which  lay on the appellants to  justify the       classification remained  wholly  undischarged   in the context, especially, of the background that   between 1939  and 1970 holders of Degrees and Diplomas were  treated alike  in  the  matter  of promotion from  the  post  of  an Assistant  Engineer  to  that of an  Executive  Engineer.  A system  which  had  stood  the  test  of  time,  could  not, reasonably, be proclaimed unworkable or inefficacious unless the  entire,  context  and requirements of  the  system  had undergone  some  significant  change.  Of  that,  says   the counsel, there is just no evidence. Most of the arguments advanced for the respondents have been considered  and rejected by this Court in some case  or  the other  but before coming to that, a few points may, be  kept out of way. An  argument which found favour with Mufti Bahauddin  J.,one of  the  learned Judges of the Letters Patent Bench  of  the High  Court,  and which was repeated before us is  that  the "retrospective"   application  of  the  impugned  rules   is violative  of articles 14 and 16 of the Constitution. It  is difficult  to  appreciate this argument  and  impossible  to accept  it. 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 governs  the future  right  of  promotion of those  who  are  already  in service. The   impugned  rules  do not  recall  a  promotion already made or reduce a pay-scale  already  granted.   They provide,  for a classification by prescribing a  qualitative standard,  the  measure of that standard  being  educational attainment.  Whether  a  classification founded  on  such  a consideration suffers from a discriminatory vice is  another matter    which  we will presently consider but surely,  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. If rules governing conditions of  service  cannot ever operate  to the prejudice of those who are  already  in service,  the  age of superannuation  should  have  remained immutable and schemes of compulsory  retirement  in   public interest ought to have foundered on     the     rock      of retroactivity.   But  such  is,  not  the   implication   of ’servicerules  nor is it their true description to say  that because they affect I    existing    employees   they    are retrospective. It is well-settled that though     employment under the Government like that under any other master  may have a contractual origin, the Government servant acquires a status’  on  appointment  to his office. As  a  result,  his rights and obliga- 780 tions  are  liable  to  be  determined  under  statutory  or constitutional  authority which for, its exercise,  requires no  reciprocal consent.  The Government can alter the  terms and  conditions 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 pre-condition  of  the  validity of rules  of  service,  the contractual origin of the service notwithstanding. The  argument on the question of onus is largely founded  on the  context  of facts obtaining in the case.  It  is  urged that  for  purposes of promotion to  higher  posts  diploma- holders were treated on par with degree-holders from 1939 to

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1970  and therefore, the onus must be on the  appellants  to prove. facts and circumstances which necessitated a  radical departure  from the old and established order.  If  diploma- holders could competently fill higher posts. for over  three decades,  reasons  leading to the rule  which  renders  them wholly  ineligible even from being considered for  promotion to the post of Executive Engineer ought to be established by the appellants and, it is urged, no evidence is disclosed in support of such reasons. This  submission is erroneous in its formulation of a  legal proposition governing onus of proof and it is unjustified in the charge that the record discloses no evidence to show the necessity  of the new, rule.  There is always a  presumption in  favour of the constitutionality of an enactment and  the burden  is  upon him who attacks it to show that  there  has been  a  clear transgression of the  constitutional  princi- ples.(1)  A rule cannot be struck down as discriminatory  on any  a  priori  reasoning.  "That where  a  party  seeks  to impeach the validity of a rule made by a competent authority on the ground that the rules offend Art. 14 the burden is on him to plead and prove the infirmity is too well established to need elaboration."1 The burden thus is on the respondents to set out facts necessary to sustain the plea of  discrimi- nation  and  to adduce "cogent and convincing  evidence"  to prove  those  facts for "there is a presumption  that  every factor  which  is relevant or material has been  taken  into account  in  formulating the classification"(2).  In  G.  D. Kelkar v. Chief Controller of Imports and Exports(?),  Subba Rao  C.J.  speaking  for the Court  has  cited  three  other decisions  of the Court in support of the  proposition  that "unless the classification is unjust on the face of it,  the onus  lies-upon, the party attacking the  classification  to show  by  pleading the necessary material before  the  court that  the said classification is unreasonable and  violative of Art. 16 of the Constitution." Thus, it is no part of the appellants’ burden to justify the classification   or  to  establish  its   constitutionality. 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 (1) Shri Ram Krishan Dalmia V. Justice    S. R.    Tendolkar & Ors.(1) (1959] S. C. R. 279, 297 (b). (2) State of Uttar Pradesh V. Kartar Singh [1964](6)S.  C.R. 679, 687. (3) [1967] (2) S. C. R. 29, 34. 781 Executive Engineer, to say the least, not unjust on the fact of  it  and the onus therefore cannot shift  from  where  ii originally lay. Respondents have assailed the classification in the clearest terms ,but their challenge is purely doctrinaire.  ’Academic or technical qualifications can be germane only at the  time of   initial   recruitment;  for  purposes   of   promotion, efficiency  and  experience  alone must  count’this  is  the content  of  their  challenge.   The  challenge,  at   best, reflects    the   respondents’   opinion   on    promotional opportunities in public services and one may assume that  if the roles were reversed, respondents would be interested  in implementing  their  point of view.  But we  cannot  sit  in appeal over the legislative judgment with a view to  finding out  whether on a comparative evaluation of  rival  theories touching the question of promotion, the theory advocated by, the  respondents is not to be preferred.  Classification  is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of

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service;  and  if,  looked at from  the  standpoint  of  the authority making it, the classification is found to rest  on a reasonable basis, it has to be upheld. Our  reason  for  saying  this  is  to  emphasize  that  the respondents  ought to have furnished particulars as to  why, according  to  them,  the  classification  between  diploma- holders  and  degree-holders  is not  based  on  a  rational consideration  having  nexus with the object  sought  to  be achieved.  In order to establish that the protection of  the equal opportunity clause has been denied to them, it is  not enough  for  the  respondents to say  that  they  have  been treated  differently  from others, not even  enough  that  a differential   treatment  has  been  accorded  to  them   in comparison  with others similarly circumstanced.   Discrimi- nation is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an  unreasonable basis.  It was therefore incumbent  on  the respondents  to  plead and show that the  classification  of Assistant  Engineers into those who hold diplomas and  those who hold degrees is unreasonable and bears no rational nexus with  its  purported  object.   Rather  than  do  this,  the respondents contented themselves by propounding an  abstract theory  that educational qualifications are germane  at  the stage of initial recruitment only.  Omission to furnish  the necessary  particulars  was construed by this Court  in  two cases as indicating that the plea of unlawful discrimination had  no  basis(’).  Such an infirmity in leadings  led  this Court in State of Madhya Pradesh v. Bhopal Sugar  Industries Ltd. (2) to remand the matter to the High Court in order  to enable the petitioner therein to amend its petition. Mr.  Garg asked for a remand so that the  respondents  could have  an  opportunity to plead the necessary  facts  but  we declined to do so as we did not propose to allow the  appeal on   the  narrow  ground  that  the  respondents’  plea   of discrimination was inadequate.  Nor indeed (1)  Katra Educational Society V. State of Uttar  Pradesh  & Ors. 1966, (3) S. C.R. 328, 336 and 337, Probhudas  Morarjee Rajkotia & Ors.  V. Union of India & Ors., A. I. R. 1966  S. C. 1044, 1047- (2)  [1964] 6. S. C. R. 846. 782 did the learned Attorney General press for a decision on any such  ,ground.  We have heard the learned counsel  fully  on the merits of the matter, especially as the question of onus was not presented before the High Court in the form in which it  was  presented  before us.  We will now  advert  to  the merits of the other contentions. The  Proviso  to Rule 10(IIB) (1) of the  1968  Rules  under which  Diploma-holders  were  debarred  from  crossing   the Qualification  Bar  placed  at Rs. 610 need  not  detain  us because the learned Attorney General states that the Bar has since  been  removed with retrospective  effect.   The  1968 scale  of  pay will therefore apply equally to  the  degree- holders and diploma-holders in the cadre of Assistant  Engi- neers,  with  effect from the date on which the  1968  Rules came into force.  Respondents, accordingly, will be eligible to  reach  the ceiling of the scale regardless of  the  fact that they hold a diploma and not a degree in Engineering. The  main question for decision arises out of the  challenge to  the  Rules of 1970 under which  diploma-holders  in  the cadre  of  Assistant Engineers are not entitled even  to  be considered  for  promotion  to  the  next  higher  cadre  of Executive  Engineers.   Under the Schedule to  those  Rules, recruitment to the cadre of executive engineers can be  made only by promotion from amongst Assistant Engineers.  To that

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is  added  the  impugned rider  that  only  those  Assistant Engineers  will  be  eligible for promotion  who  possess  a bachelor’s   Degree   in  Engineering  or   who   hold   the qualification  of A.M.I.E. (Section A and B) and  who  have. put  in at least seven years’ service.   Diploma-holders  in Engineering,   like  the  respondents,  are  thus   rendered ineligible for promotion as Executive Engineers. We have observed earlier while dealing with the question  of onus  that there was no justification for  the  respondents’ plea that the record does not disclose the necessity for the impugned  rule  of  1970.  We will  draw  attention  to  the relevant  material, which is always admissible to  show  the reasons and the justification for the classification.   Such reasons need not appear on the face of the rule or law which effects the classification(1). The  seniority list of Assistant Engineers as of January  1, 1971 discloses a significant phenomenon.  The list comprises 78  Assistant Engineers and omitting the very first  amongst them  who  was  only a matriculate, the  remaining  77  were appointed  as Assistant Engineers between October  19,  1960 and  December  24, 1970.  Prior to August 6, 1962  when  the rules  of 1962 came into force, only 7  Assistant  Engineers held an Engineering Degree as against 13 who held a diploma. The  position  on February 27, 1968 when the rules  of  1968 came  into force was that the number of  degree-holders  had increased  to 38 while that of diploma-holders went up  from 13  to 21 only.  On October 12, 1970 when the impugned  rule now  under  consideration  came into force,  there  were  48 degree-holders  and  26  diploma-holders  in  the  cadre  of Assistant  Engineers, excluding the last one at item No.  78 who was promoted after the promulgation of the rules but who is (1)  Shri  Ram Krishan Dalmia v. Justtice S. R. Tendolkar  & Ors., [1969] S. C. R. 279, 307-8. 783 also  a degree-holder.  We have advisedly taken no  note  of two  instances  in  one  of  which  the  incumbent  was  not appointed  as  a regular Assistant Engineer  and  the  other where,  though appointed, the person concerned did not  join the Department. It  is transparent from this analysis that till  about  1968 there  was a dearth of Engineering graduates.  In 1962,  the ratio  between graduates and diploma-holders was 1 :  2.  In 1968 it became almost 2 :1 and in 1970 the position remained more  or  less unchanged.  The appellants were  entitled  to take into account this spurt in the availability of  persons with higher educational qualifications for manning the  next higher   post  of  promotion.   In  fact,  it  may  not   be overlooked,  that even under the recruitment rules  of  1939 graduates  in  Civil  Engineering were  alone  eligible  for direct  appointment  as Assistant Engineers in  the  Kashmir Engineering Service.  Only departmental promotions could  be made  from amongst diploma-holders and that too if they  had put in 5 years’ service in the cadre of Supervisors.   There is therefore no substance in the contention that the  record sheds  no light on why a change was thought necessary  in  a system that had stood the test of time.  In 1968 itself when there  was  a proliferation in the ranks  of  graduates,  an attempt  was  made  which was later rectified,  to  offer  a higher  incentive  to  graduates  by  the  placement  of   a Qualification  Bar.  We are not called upon to  adjudge  its validity  for  reasons already mentioned but it  is  obvious that  the impact of the changing pattern had to receive  its due recognition. But then Mr, Setalvad contends that if the nature of  duties

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and  responsibilities of the post of Executive Engineer  has undergone   no  significant  change,  there  would   be   no justification  for  restricting  the  field  of  choice   to graduates.   Talent  and efficiency could be  found  in  the ranks of diploma-holders in an equal measure and it is urged that  rather  than display a mere fancy  for  graduates  and restrict  its choice, the State should have in the  interest of  an efficient service, laid the promotional chances  open to  both  the ranks on the basis of talent,  experience  and efficiency.    This argument, as presented, is attractive but it assumes in  the  court a right of scrutiny somewhat  wider  than  is generally recognized.  Article 16 of the Constitution  which ensures  to all citizens equality of opportunity in  matters relating to employment is but an instance or incident of the guarantee of equality contained in article 14.  The  concept of   equal  opportunity  undoubtedly  permeates  the   whole spectrum  of  an individual’s  employment  from  appointment through promotion and termination to the payment of gratuity and  pension.  But the concept of equality has  an  inherent limitation   arising   from   the   very   nature   of   the constitutional guarantee.  Equality is for equals.  That  is to  say  that  those who  are  similarly  circumstanced  are entitled to an equal treatment. 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 first identifying and then distinguishing  members of one class from those of another. 784 Classification, however, is fraught with the danger that  it may produce artificial inequalities and therefore, the right to  classify is hedged in with salient restraints, or  else, the  guarantee  of  equality  will  be  submerged  in  class legislation inasquerading as laws meant to govern wellmarked classes characterized by different and distinct attainments. Classification,   therefore,  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. Judicial   scrutiny  can  therefore  extend  only   to   the consideration   whether  the  classification  rests   on   a reasonable  basis whether it bears nexus with the object  in view.   It  cannot  extend  to  embarking  upon  a  nice  or mathematical evaluation of the basis of classification,  for were  such  an inquiry permissible it would be open  to  the courts  to  substitute their own judgment for  that  of  the legislature  or  the  rulemaking authority on  the  need  to classify  or  the  desirability of  achieving  a  particular object. Judged from this point of view, it seems to us impossible to accept  the respondents’ submission that the  classification of  Assistant  Engineers into  Degree-holders  and  Diploma- holders  rests  on any unreal or  unreasonable  basis.   The classification, according to the appellants, was made with a view   to   achieving  administrative  efficiency   in   the Engineering   services.    If  this  be  the   object,   the classification  is  clearly  correlated  to  it  for  higher educational qualifications are at least presumptive evidence of  a higher mental equipment.  This is not to suggest  that administrative  efficiency can be achieved only through  the medium of those possessing comparatively higher  educational

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qualifications  but  that  is beside  the  point.   What  is relevant  is  that the object to be achieved here is  not  a mere   pretence   for  an   indiscriminate   imposition   of inequalities and the classification cannot be charactersized as arbitrary or absurd.  That is the farthest that  judicial scrutiny can extend. On  the  facts of the case, classification on the  basis  of educational  qualifications  made with a view  to  achieving administrative  efficiency  cannot be said to  rest  on  any fortuitous  circumstance and one has always to bear in  mind the  facts and circumstances of the case in order  to  judge the validity of a classification.  The provision in the 1939 Rules restricting direct recruitment of Assistant  Engineers to  Engineering graduates, the dearth of graduates in  times past and their copious flow in times present are all matters which can legitimately enter the judgment-of the rule-making authority.   In  the  light of these  facts,  that  judgment cannot  be assailed as capricious or  fanciful.   Efficiency which  comes in the trail of a higher mental  equipment  can reasonably  be  attempted  to  be  achieved  by  restricting promotional   opportunities  to  those   possessing   higher educational  qualifications.  And we are concerned with  the reasonableness of the classification, not. with the  precise accuracy  of the decision to classify nor with the  question whether  the classification is scientific.  Such tests  have long since been discarded.  In fact American decisions  have gone  as  far  as saying that  classification  would  offend against the 14th Amendment of 78 5 the  American Constitution only if it is "purely  arbitrary, oppressive or capricious"(’) and the. inequality produced in order to encounter the challenge of the Constitution must be "actually  and palpably unreasonable and arbitrary"(2).   We need  not  go that far as the differences  between  the  two classes-graduates and Diploma-holders--furnish a  reasonable basis for separate treatment and bear a just relation to the purpose of the impugned provision. Educational  qualifications  have been  recognized  by  this Court  as a safe criterion for determining the  validity  of classification.  In State of Mysore v. P. Narasing  Rao  (3) where  the  cadre of Tracers was reorganized into  two,  one consisting of matriculate Tracers with a higher scale of pay and  the other of non-matriculates in a lower scale, it  was held that articles 14 and 16 do not exclude the laying  down of selective tests nor do they preclude the Government  from laying  down  qualifications  for  the  post  in   question. Therefore, it was open to the Government to give  preference to candidates having higher educational qualifications.   In Ganga  Ram v. Union of India(4), it was observed  that  "The State  which  encounters  diverse problems  arising  from  a variety of circumstances is entitled to lay down  conditions of efficiency and other qualifications for securing the best service  for being eligible for promotion in  its  different departments."  In’  The Union of India v. Dr. (Mrs.)  S.  B. Kohli(5),  a  Central Health Service Rule requiring  that  a professor  in Orthopaedics must have a post-graduate  degree in  the 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". The  argument that a degree qualification was not  the  only criterion   of  suitability  was  answered  laconically   as strange". Under the Schedule to the 1970 rules, a degree qualification is prescribed as a condition for promotion to the post of an

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Executive  Engineer from the cadre of  Assistant  Engineers. But  there is no rule requiring a similar qualification  for promotion  to the post of Superintending Engineer  which  is next  higher  to  the  post of  Executive  Engineer  or  for promotion  to  the  apex post of the  Chief  Engineer.   The Schedule  provides that recruitment to these two  categories of posts shall be made by promotion from amongst persons  in cadres  next  below,  who possess experience  for  a  stated number  of year.  This circumstance is pressed into  service by  the respondents in support of their plea that the  whole basis  of classification is unreal and that the true  object could  not be the attainment of higher administrative  effi- ciency.   If it was thought necessary to prescribe a  Degree qualification in order to achieve efficiency in the post  of Executive Engineers, ex (1)  Joseph Radice v. People of the State of New York, 68 L. Ed.  690, 695, American Sugar Ref.  Co. v. Louisiana, 45  L. EL]. 102,103. (2)  68  L.  Ed.  690,  695; Arkansas  Natural  Gas  Co.  v, Railroad Commission 67 L.     Ed. 705, 710. (3)  [1968]  (1) S. C. R. 407.  State of Mysore &  Anr.  vs. P. Narasing Rao. (4)  (1970] (3) S. C. R. 481, 488. (5)  A. I. R. 1973 S. C. 811, 813. 786 hopothesi  it  should have been equally imperative,  if  not more  to  pro  vide for a similar  condition  in  regard  to promotion to higher posts thus runs the argument. This  argument  means that any service reform  must  embrace every  hierarchy or none at all.  It is often impossible  or at  any  rate inexpedient to reach and remedy all  forms  of evil,  wherever present.  Reform must begin somewhere if  it has to begin at all and therefore, the administrator who has nice  and  complex problems to solve, must be  allowed  the, freedom  to  proceed  tentatively, step  by  step.   Justice Holmes gave in a similar context a significant warning  that :  "We must remember that the machinery of Government  would not  work  if  it  were not allowed a  little  play  in  its joints".(’) The seniority list of January 1, 1971 shows how very  unreal the argument is that the qualification rule not having  been extended  to the higher echelons of service, it can bear  no nexus with the attainment of administrative efficiency in  a comparatively  lower hierarchy of Assistant  Engineers.   On January 1, 1971 which was soon after the publication of  the 1970   Rules,  there  were  6  persons  in  the   cadre   of Superintending  Engineers  all  of  whom,  except  one,  are graduates. , The one at the top is an L.E.E. but he  entered service  in  1939  and must now be quite  on  the  verge  of retirement.   There is therefore but slender chance  that  a non-graduate  could climb into the top position of  a  Chief Engineer, which post can, under the rules of 1970, be filled only  by  promotion from amongst  Superintending  Engineers. Promotion  to the cadre of Superintending Engineers  can  be made   only  from  amongst  Executive  Engineers  and   the, Seniority list shows that out of 22 Executive Engineers,  19 are  graduates and only 3 are diploma-holders.  Out  of  the 19, the first 15 according to seniority are all graduates so that  the  chances of a diploma-holder being promoted  as  a Superintending  Engineer  are rairly remote.  With  the  new rules coming info force, all Executive Engineers will, after October 12, 1970, be appointed from amongst graduates in the rank  of  Assistant  Engineers and therefore  the  cadre  of Executive   Engineers   will  soon  consist   of   graduates exclusively.   The Governor was entitled to give  weight  to

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these practical considerations and to restrict the operation of  the impugned rule to cases where their  application  was imperative.  Dealing with practical exigencies, a rulemaking authority  may be, guided by the realities of life, just  as the  legislature, while making a classification "is free  to recognize   degrees   of  harm  and  it  may   confine   its restrictions  to  those classes of cases where the  need  is deemed  to be the clearest (2). if the law  presumably  bits the  evil where it is most felt, it is not to be  overthrown because  there  are other instances to which it  might  have been applied.(s) Only  one point remains to be considered and it  requires  a close  attention  as  it claims to  have  the  authority  of leading decisions rendered by this Court.  We have relegated this point to a rear position because it was necessary,  for a  proper  understanding  thereof, to clear  the  ground  of various other doubts dealt with above.  A neat point can now be framed and discussed. (1)Bain Peanut Co. v. Pinson 75 L. ed. 482, 489. (2) Miler vs.  Wilson, 59 L. ed. 632. (3) Keoke Consol.  Coke Co. v. Taylor 53 L. ed. 1288,1289. 787 If  persons recruited from different sources are  integrated into  one class, they cannot thereafter be classified so  as to permit in favour of some of them a preferential treatment in  relation  to  others.  That is the  argument  before  us which,  applied  to the facts of the case,  means  in  plain terms  this : Direct recruits and promotees having been  ap- pointed   as  Assistant  Engineers  on  equal  terms,   they constitute an integrated class and for purposes of promotion they  cannot  be  classified on  the  basis  of  educational qualifications. We  have  drawn attention to three decisions of  this  Court (Narsing  Rao’s case, Ganga Ram’s case and Dr. Mrs.  Kohli’s case)  in which classification on the basis  of  educational qualifications  was  upheld.   In  Narsing  Rao’s  case(’,), Tracers  doing  equal work were classified into  two  grades having  unequal pay, the basis of the  classification  being higher  educational qualifications.  In Dr.  (Mrs.)  Kohli’s case(2), as refined a classification as between an  F.R.C.S. in  general  surgery  and an F.R.C.S.  in  Orthopaedics  was upheld in relation to appointment to the post of a Professor of   Orthopaedics.   But  these  cases  are  sought  to   be distinguished on the authority of the decision of this Court in  Roshan  Lal Tandon v. Union of India(3).  That  case  is crowded with facts and requires a careful consideration  for its proper understanding. Vacancies  in  Grade ’D’ of Train Examiners were  filled  in Roshan  Lal’s case by (a) direct recruits  i.e.,  apprentice train examiners and (b) promotees from the class of  skilled artisans, in the ratio of 50 :50.  Promotion from Grade  ’D’ to  Grade ’C’ was to be made on the basis of  seniority-cum- suitability.   In October, 1965 the Railway Board  issued  a notification  providing that 80% of the vacancies  in  Grade ’C’  would be filled up from the class of  apprentice  train examiners  recruited  on  and after April 1,  1966  and  the remaining 20% from amongst the train examiners in Grade ’D’. The  notification  further provided  That  apprentice  train examiners  who were absorbed in Grade ’D’ before April  1966 would be accommodated en bloc in Grade ’C’ in the 80% of the vacancies, without undergoing any selection.  With regard to 20%  of  the remaining vacancies it was  provided  that  the promotion would be on the basis of selection and not on  the basis  of seniority-cumsuitability.  The petitioner,  Roshan Lal  Tandon,  who had entered Railway service in 1954  as  a

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skilled  artisan  and was later selected  and  confirmed  in Grade’D’  as a Train Examiner filed a writ petition in  this Court   challenging  under  articles  14  and  16   of   the Constitution,  that  part  of the  notification  which  gave favourable  treatment to apprentice train examiners who  had already  been absorbed in Grade ’D’.  His case was that  be, along  with direct recruits, formed one class in  Grade  ’D’ and  according  to the conditions of service  applicable  to them,  seniority  was  to  be  reckoned  from  the  date  of appointment as Train Examiners in Grade ’D’ and promotion to Grade  ’C’  was  to  be, on the  basis  of  seniority,  cum- suitability, irrespective of the source of recruitment.  His contention  was  that since he was appointed  to  Grade  ’D’ after  undergoing the necessary selection and  training  and since  he was integrated with the others who were  appointed to Grade ’D’ by direct recruitment, no differentiation could be made an between him and the direct recruits in the matter of promotion to grade ’C’. (1) [ 1 9681 (1) S. C. R. 407             (2) A. 1. R.  1973 S. C. 81 1. (3)  [19681 (1) S. C. R. 185. 788 The Constitutional objection taken by Roshan Lal was  upheld by this Court with these observations :               "At  the  time  when the  petitioner  and  the               direct  recruits were appointed to Grade  ’D’,               there  was  one class in Grade ’D’  formed  of               direct  recruits  and the promotees  from  the               grade of artisans.  The recruits from both the               sources to Grade ’D’ were integrated into  one               class  and no discrimination could  thereafter               be made in favour of recruits from one  source               as against the recruits from the other  source               in  the matter of promotion to Grade ’C’.   To               put  it differently, once the direct  recruits               and promotees are absorbed in one cadre,  they               form   one   class   and   they   cannot    be               discriminated  for  the  purpose  of   further               promotion  to  the higher grade ’C’.   In  the               present case, it is not disputed on behalf  of               the first respondent that before the  impugned               notification  was  issued there was  only  one               rule  of promotion for both  the  departmental               promoters  and  the direct recruits  and  that               rule was seniority-cum-suitability, and  there               was  no rule of promotion separately made  for               application  to  the direct  recruits.   As  a               consequence  of  the impugned  notification  a               discriminatory treatment is made in favour  of                             the  existing  Apprentice Train  Exami ners  who                             have  already  been absorbed in  Grade   ’D’  by               March  31,  1966,  because  the   notification               provides  that this group of Apprentice  Train               Examiners should first be accommodated en bloc               in  grade  C’ upto 80 per  cent  of  vacancies               reserved  for  them  without  undergoing   any               selection.  As regards the 20 per cent of  the               vacancies  made available for the category  of               Train   Examiners  to  which  the   petitioner               belongs the basis of recruitment was selection               on  merit and the previous test of  seniority-               cum-suitability   was   abandoned.    In   our               opinion,  the  present case falls  within  the

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             principle of the recent decision of this Court               in Mervyn v. Collector [1966(3) S.C.R. 600]." The key words of the judgment are : "The, recruits from both the sources to Grade ’D’ were integrated into one class  and no  discrimination  could thereafter be made  in  favour  of recruits  from one source as against the recruits  from  the other  source  in  the matter of promotion  to  Grade  ’C"’. (emphasis  supplied).  By this was meant that in the  matter of promotional opportunities to Grade ’C’, no discrimination could  be  made  between promotees and  direct  recruits  by reference to the source from which they were drawn.  That is to  say,  if apprentice Train Examiners who  were  recruited directly  to Grade ’D’ as Train Examiners formed one  common class  with skilled artisans who were promoted to Grade  ’D’ as Train Examiners, no favoured treatment could be given  to the  former merely because they were directly  recruited  as Train  Examiners  and  no discrimination could  be  made  as against the latter merely because they were promotees.  This is  the true meaning of the observation extracted above  and no  more  than  this  can be read  into  the  sentence  next following : "To put it differently, once 789 the  direct  recruits and promotees are  absorbed  into  one cadre, they form one class and they cannot be  discriminated for the purpose of further promotion to the higher Grade ’C’ ".  In terms, this was just a different way of putting  what had preceded. Thus,  all that Roshan Lal’s case lays down is  that  direct recruits and promotees lose their birth-marks on fusion into a  common  stream of service and they cannot  thereafter  be treated  differently by reference to the consideration  that they  were recruited from different sources.  Their  genetic blemishes  disappear once they are integrated into a  common class  and cannot be revived so as to make  equals  unequals once again. Roshan  Lal’s case is thus no authority for the  proposition that  if direct recruits and promotees are  integrated  into one  class,  they  cannot  be  classified  for  purposes  of promotion on a basis other than the one that they were drawn from  different  sources.   In the  instant  case,.  classi- fication  rests fairly and squarely on the consideration  of educational  qualifications : Graduates alone shall go  into the  higher post, no matter whether they were  appointed  as Assistant   Engineers   directly  or  by   promotion.    The discrimination therefore is not in relation to the source of recruitment as in Roshan Lal’s case. It  is  relevant, though inconclusive, that the  very  Bench which decided Roshan Lal’s case held about a fortnight later in Narsing Rao’s case that higher educational qualifications are  a relevant consideration for fixing a higher pay  scale and  therefore Matriculate Tracers could be given  a  higher scale than non-matriculate Tracers, though their duties were identical.   Logically,  if persons recruited  to  a  common cadre can be classified for purposes of pay on the basis  of their   educational  qualifications,  there  could   be   no impediment  in  classifying  them  on  the  same  basis  for purposes  of promotion.  The ratio of Roshan Lal’s case  can at best be an impediment in favouring persons drawn from one source  as against those drawn from another for  the  reason merely that they are drawn from different sources. There  is  an aspect of Roshan Lal’s case which may  not  be ignored.   The Union of India had contended by its  counter- affidavit therein that the reorganization of the service was made with a view to obtaining a better and more  technically trained class of Train Examiners which had become  necessary

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on  account  of the acquisition of modern types  of  Rolling Stock,  complicated  designs  of carriages  and  wagons  and greater   speed  of  trains  under  the  dieselisation   and electrification   programmes.    This   contention,   though mentioned in the affidavit, was not placed before the  court as  is transparent from the judgment.  What is impact  would have been on the ultimate conclusion need not be speculated, for  it  is enough for understanding the true ratio  of  the judgment to say that the case was decided on the sole  basis that   persons   recruited  from  different   sources   were classified according as whether they were appointed directly or  by promotion.  That is why the key passage cited  by  us from  the judgment winds up by saying that the  "case  falls within  the principle of........ the decision.... in  Mervyn v. Collector". 790 In Mervyn Coutindo & Ors. v. Collector of Customs, Bombay  & Ors.,(1)  no question arose in regard to the validity  of  a classification  based  on educational  qualifications.   The question  there was whether a rotational system  for  fixing seniority  was discriminatory if the recruitment was  partly by promotion and partly directly.  It was held that there is no inherent vice in such a system if the service is composed in  fixed proportion of direct recruits and promotees.   The rotational  system  could  therefore be  adopted  in  fixing seniority  in the cadre of Appraisers, to which  recruitment was in actual practice made directly and by promotion in the ratio of 50 : 50.  But different considerations were held to arise when the same, system was applied for fixing seniority in the cadre of Principal Appraisers because, there was only one  source from which the Principal Appraisers were  drawn, namely  Appraisers.  The ratio (it- the judgment is  :  "The rotational  system cannot.... apply when there is  only  one source of recruitment".  This is the principle within  which Roshan  Lal’s case was expressed to Neither the one nor  the other of the two cases was concerned with the question which arises  for consideration before us.  The classification  of which  we  have  to determine the validity is  not  made  in relation to the source of recruitment.  Therefore cases like Roshan  Lal’s, Mervyn Coutindo’s and Pandit’s (2) fall in  a class apart.  The case last mentioned is a typical  instance of  that  class, where directly  appointed  Mamlatdars  were accorded a favoured treatment qua the promotee Mamlatdars in the  matter  of promotion to the post of  Deputy  Collector. Mamlatdars,  whether  appointed directly  or  by  promotion, constituted  one  class and therefore it was  held  that  no reservation  could  be  made  in  favour  of  the   directly appointed  Mamlatdars for promotion to the cadre  of  Deputy Collectors. We  are  therefore  of  the  opinion  that  though   persons appointed  directly and by promotion were integrated into  a common  class  of  Assistant  Engineers,  they  could,   for purposes  of promotion to the cadre of Executive  Engineers, be  classified on the basis of  educational  qualifications. The rule providing that graduates shall be eligible for such promotion  to  the  exclusion of  diploma-holders  does  not violate  articles 14 and 16 of the Constitution and must  be upheld. 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 government and excellence and equality are not friendly bed- fellows.   A pragmatic approach has therefore to be  adopted in  order to harmonize the requirements of  public  services with  the  aspirations of public servants.  But let  us  not

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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 ? For reasons indicated, we allow the appeal but there will be no order as to costs. (1) [1966] (3) S. C. R. 600. (2)  S. M.  Pandit v. State of Gniarar, A. 1. R. 1972 S.  C. 252 791 KRISHNA IYER, J. We fully endorse what has been said by  our learned brother Chandrachud, J., but the profound depths  of equal  justice  in public employment touched  in  his  final paragraph  (with  which  we  ardently  agree)  impel  a  few concurring observations of our own. In this unequal world the proposition that all men are equal has  working limitations, since absolute equality  leads  to Precrustean  cruetly  or  sanctions  indolent  inefficiency. Necessarily,  therefore,  an  imaginative  and  constructive modus  vivendi  between commonness and  excellence  must  be forged to make the equality clauses viable.  This pragmatism produced   the  judicial  gloss  of   ’classification’   and ’differentia’, with the by-products of equality among equals and dissimilar things having to be treated differently.  The social meaning of arts. 14 to 16 is neither dull  uniformity nor  specious  ’talentism’.  It is a  process  of  producing quality  out  of larger areas of equality  extending  better facilities  to the latent capabilities of the lowly.  It  is not a methodology of substitution of pervasive and  slovenly mediocrity for activist and intelligent-but not snobbish and uncommitted-cadres.     However,   if   the    State    uses classification casuistically for salvaging      statusand elitism,  the point of no return is reached for arts. 14  to 16         andthe  Courts  jurisdiction awakens  to  dadden such manoeuvres. Thesoul of art. 16 is the promotion of the common man’s capabilities,over-            powering environmental adversities and opening up full  opportunities to  develop  in  official life  without  succumbing  to  the sophistic argument of the elite that talent is the privilege of  the  few  and  they must  rule,  wriggling  out  of  the democratic  imperative of arts. 14 and 16 by the  theory  of classified  equality  which at its  worst  degenerates  into class domination. The relevance of these abstract remarks to the present  case is obvious.  Engineers with diplomas are likely to be  drawn from  poorer families and not necessarily because  they  are incapable of making the ’degree’ grade.  An opportunity  for them  to level up, through experience and  self-study,  with their  more fortunate degree-holding meritocracy, is of  the essence  of  equal  opportunity  for  people  with  dragging backgrounds.     If    economically,   and    therefore    . educationally-, handicapped men distinguish themselves, they are  heroes  and  should be honoured  and  not  kept  humble through  life  on account of the original  sin  of  inferior qualifications.  Indeed ’ diploma holders in that  Himalayan State  were good enough, in the past decades, to go  to  the top  of  the ladder, as the facts of  this  case  admittedly disclose.   However,  in these young  days  few  engineering graduates  in the State and few engineering colleges in  the country compelled Government to recruit diploma holders  and promote  them  to higher offices.   But  circumstances  have changed, needs have increased, availabilities have  expanded and  inequalities at the educational level have been  partly

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eliminated.   And  so  personal  policy,  with  an  eye   on efficiency,  has changed.  While we agree with counsel  that ’chill penury’ should not ,repress their noble rage’,  still during our transitional developmental stage the sacrifice of technical proficiency at the altar of wooden equality is  an unreasonable injury the State cannot afford to self inflict. The 7 9 2 technology  of equal opportunity is to assume  diffusion  of talent   and  to  afford  in-service   facilities,   through relaxation of rules and otherwise, to the weaker members  to acquire better skills. The  wise and tonic words of our learned brother, if we  may say so with great deference, are however portentous.   While striking a balance between the long hunger for equal  chance of  the lowlier and the disturbing concern of the  community for  higher standards of performance, the State  should  not jettison the germinal principle of equality altogether. [The dilemma  of democracy is as to how to avoid  validating  the abolition of the -difference between the good and the bad in the name of equality and putting to sleep the constitutional command  for expanding the areas of equal treatment for  the weaker ones with the dopeof  ’special   qualifications’ measured by expensive and exotic degrees. These       are perhaps meta-judicial matters left to the other branchesof Government, but the Court must hold the Executive within the loading   strings  of  egalitarian   constitutionalism   and correct,  by judicial review, episodes of subtle  and  shady classification grossly violative of equal justice.  That  is the  heart  of  the matter.  That is  the  note  that  rings through  the first three fundamental rights the people  have given to themselves.] Mini-classifications  based on micro-distinctions are  false to   our  egalitarian  failth  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 Govern- ment  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 degrees 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 out 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  qui vive. K.B.N. Appeal allowed. 793