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PETITIONER: STATE OF MYSORE & ANR.

       Vs.

RESPONDENT: P. NARASING RAO

DATE OF JUDGMENT: 31/08/1967

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. WANCHOO, K.N. (CJ) BACHAWAT, R.S. MITTER, G.K. HEGDE, K.S.

CITATION:  1968 AIR  349            1968 SCR  (1) 407  CITATOR INFO :  D          1972 SC 252  (6)  D          1974 SC   1  (40A,46,52)  F          1974 SC1631  (28)  F          1976 SC 490  (27,106)  R          1978 SC 327  (7,9,10)  RF         1981 SC 298  (24)  RF         1985 SC1124  (7)  RF         1989 SC 307  (9)  APR        1989 SC1256  (8)  F          1989 SC1308  (7)  R          1992 SC1754  (5)

ACT: Constitution   of   India  Arts.   14,   16--Non-matriculate Government  employee placed in lower pay  scale--Matriculate employees doing similar work placed in higher scale--Whether discrimination--Whether  higher general  education  relevant consideration   for  fixing  higher  pay   where   technical qualifications are similar. States  Reorganisation Act, 1956, s.  115(7)--Respondent  in single  cadre of matriculate and non-matriculate tracers  in old  Hyderabad  State--Placed  in  separate  cadre  of  non- matriculates in new Mysore State--Whether his conditions, of service adversely affected.

HEADNOTE: The  respondent was employed as a Tracer in the  Engineering Department in the erstwhile Hyderabad State where the  cadre of  Tracers consisted of both matriculates as well  as  non- matriculates and no distinction was made between them.  As a result  of  the  reorganisation of States  in  1956  he  was allotted  to the appellant Mysore State where the  cadre  of Tracers  was  reorganised  into  two,  ,one  consisting   of matriculate  Tracers in a higher scale of pay and the  other of  non-matriculates in a lower scale.  The  respondent  was given the option either to remain in his old Hyderabad scale of  pay  or  to  accept the new  scale  applicable  to  non- matriculates.  He refused to exercise the option and claimed that the cadre of Tracers should not have been divided  into

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two  grades  and that no distinction should have  been  made between  matriculates and non-matriculates.  His  claim  was rejected  by the Superintending Engineer on March  19,  1958 and he filed a writ petition in the High Court praying  that the order of the Superintending Engineer be quashed and  for the issue of writ in the nature, of mandamus to fix his  pay in  the scale prescribed for matriculate Tracers.  The  High Court allowed the petition, holding that there was no  valid reason for making a distinction as both matriculate and non- matriculate Tracers were doing the same kind of work and the distinction made was in violation of Arts. 14 and 16 of  the Constitution. On appeal to this Court, Held:     Allowing    the   appeal.    Higher    educational qualifications  are  relevant considerations  for  fixing  a higher  pay  scale and the classification of two  grades  of Tracers  in the new Mysore State was not violative of  Arts. 14 or 16 of the Constitution. Articles 14 and 16 form part of the same constitutional code Of  guarantees  and supplement each other.  In  other  words Art.  16  is  only an instance of  the  application  of  the general rule of equality laid down in Art. 14 and it  should be construed as such.  Hence there is no denial of  equality of   opportunity   unless  the  person  who   complains   of discrimination  is  equally  situated  with  the  person  or persons who are alleged to have been favoured. [411E-F] 408 The  provisions  of Art. 14 or Art. 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.   Such qualifications need not be  only  technical and  it  is open to the Government to consider  the  general educational  attainments  of  the  candidates  and  to  give preference   to  candidates  who  have  better   educational qualifications  besides  the  technical  proficiency  of   a Tracer. [411G412B] General  Manager, Southern Railway v. Rangachari,  [1962]  2 S.C.R. 586, 596, referred to. There  was  no  force in the  respondent’s  contention  that because  of  his having been in one grade  with  matriculate Tracers in the old State and, on his being made to work in a separate   non-matriculate  grade  in  the  new  State   his conditions  of service were adversely affected in  violation of  s.  116(7)  of  the  States  Reorganisation  Act   1956. Furthermore  the basis of promotion was merit and  seniority based  on the interstate seniority list prepared  under  the provisions  of the Act; thus the respondent’s seniority  had not  been  affected and he was not deprived of  any  accrued benefits. [412F-G; 414C-D]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1238 of 1966. Appeal  by special leave from the judgment and  order  dated January  15, 1963 of the Mysore High Court in Writ  Petition No. 48 of 1962. R.   Gopalakrishnan and S. P. Nayar, for the appellants. S.   C. Mazumdar, M. M. Kshatriya and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Ramaswami, J.This appeal is brought, by special leave,  from the judgment of the Mysore High Court dated January 15, 1963 in  Writ  Petition No. 48 of 1962 granting a  writ  -in  the nature of mandamus directing the appellants to accord to the

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respondent  that  benefit  of both the  revised  higher  pay scales  for  the Matriculate tracers with  effect  from  the respective dates on which they came into force. The respondent, Narasing Rao was employed as a tracer in the Engineering  Department  in the Ex-Hyderabad  State  on  the scale  of  pay  Rs. 65-90.In the  cadre  of  tracersof  that State,there    were   matriculates   as   well    as    non- matriculates.But there was no distinction made in the  scale of  pay for that reason and all the tracers were  placed  in the  -same  scale.  The respondent  was  a  non-matriculate. There was re-organisation of States in 1956 and as a  result of the re-organisation a part of the area of Hyderabad State became  part  of the new Mysore State.  The  respondent  was allotted to the new Mysore State.  After the transfer of the respondent to the new State. the cadre of tracers into which tracers  from Bombay State had also been absorbed,  was  re- organised  into  two grades, one consisting  of  matriculate tracers  whose scale of pay was fixed at Rs. 50-120 and  the other of non-matriculates 409 at  Rs.  40-80  with effect from January  1,  1957.   It  is necessary to state that in the old Mysore State even  before November  1,  1956 there were two grades of  tracers,  viz., non-S.S.L.C.  tracers  on the pay scale of  Rs.  30-50.  and S.S.L.C.  tracers  on the pay scale of Rs.  40-60.   As  the respondent was a non-matriculate he was given the option  to accept the new scale of pay i.e., Rs. 40-80 or remain in the old  Hyderabad  scale  of Rs.  65-90.   But  the  respondent refused to exercise the option and claimed that the cadre of tracers in the new Mysore State should not have been divided into  two  grades and that no distinction should  have  been made between matriculates and non-matriculates.  The respon- dent insisted that his pay should be fixed in the grade  Rs. 50-120.   The  claim  was  rejected  by  the  Superintending Engineer on March 19, 1958 and the respondent was told  that he could only be fixed in the new revised scale of Rs. 40-80 as  he had not passed the S.S.L.C. examination.   Meanwhile, by  an order of the Government dated February 27,  1961  the pay  scales of the tracers in the new State of  Mysore  were further revised and the revised pay scales were directed  to come  into  force with effect from January 1,  1961.   Under this  Government  order,  the tracers  who  had  passed  the S.S.L.C.  examination were entitled to opt in favour of  the pay  scale  Rs.  80-150 and those who had  not  passed  that examination were entitled to get into pay scale of Rs.  70-1 10.  The respondent claimed that he was entitled to the  pay scale applicable to the tracers who had passed the  S.S.L.C. examination  viz., Rs. 80150.  The claim of  the  respondent was  rejected.   Thereafter  the  respondent  filed  a  writ petition in the Mysore High Court praying that the order  of the Superintending Engineer dated March 19,  1958 fixing his pay  in the scale of non-matriculate tracers and giving  him the option; to retain his old scale may be quashed and for a writ  in the nature of mandamus to fix his pay in the  scale prescribed for matriculate tracers.  The High Court  allowed the writ petition, holding that there was a violation of the guarantees  given under Arts. 14 and 16 of the  Constitution and  granted  the relief claimed by the  respondent  on  the ground  that  there  was  no  valid  reason  for  making   a distinction as both matriculate and non-matriculate  tracers were doing the same kind of work. The  first  question  to be considered  in  this  appeal  is whether  the  creation of two scales of tracers in  the  new Mysore  State who were doing the same kind of work  amounted to  a discrimination which violated the provisions of  Arts.

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14 and 16 of the Constitution. The relevant law on the subject is well-settled.  Under Art. 16   of  the  Constitution,  there  shall  be  equality   of opportunity   for  all  citizens  in  matters  relating   to employment  or appointment to any office under the State  or to promotion from one office to a higher office  thereunder. Article  16 of the Constitution is only an incident  of  the application of the concept of equality enshrined in 410 Art.  14  thereof.   It gives effect  to  -the  doctrine  of equality  in  the matter of appointment and  promotion.   It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion.   The concept  of  equality  in the matter  of  promotion  can  be predicated  only when the promotees are drawn from the  same source.    ’This  Court  in  dealing  with  the  extent   of protection  of  Art.  16(1)  observed  in  General  Manager, Southern Rly. v. Rangachari(1):               "Thus construed it would be clear that matters               relating to employment cannot be confined only               to  the  initial matters prior to the  act  of               employment.   The  narrow  construction  would               confine  the application of Art. 16(1) to  the               initial employment and nothing else; but  that               clearly is only one of the matters relating to               employment.   The  other matters  relating  to               employment  would inevitably be the  provision               as  to  the salary and  periodical  increments               therein, terms as to leave, as to gratuity, as               to   pension   and   as   to   the   age    of               superannuation.    These   are   all   matters               relating to employment and they are, and  must               be,  deemed to be included in  the  expression               ’matters  relating  to  employment’  in   Art.               16(1)..................   This   equality   of               opportunity need not be confused with absolute                             equality  as such.  What is guaranteed   is  the               equality  of  opportunity  and  nothing  more.               Article  16(1)  or (2) does not  prohibit  the               prescription of reasonable rules for selection               to  any  employment  or  appointment  to   any               office.     Any    provision   as    to    the               qualifications  for  the  employment  or   the               appointment  to  office reasonably  fixed  and               applicable to all citizens would certainly  be               consistent  with the doctrine of the  equality               of  opportunity; but in regard to  employment,               like  other  terms and  conditions  associated               with and incidental to it, the promotion to  a               selection post is also included in the matters               relating to employment, and even in regard  to               such a promotion to a selection post  all,that               Art.   16(1)   guarantees   is   equality   of               opportunity  to  all citizens who  enter  ser-               vice............... In this connection it  may               be  relevant to remember that Art.  16(1)  and               (2) really give effect to the equality  before               law   guaranteed  by  Art.  14  and   to   the               prohibition  of discrimination  guaranteed  by               Art. 15(1).  The three provisions form part of               the same constitutional code of guarantees and               supplement  each other.  If that be so,  there               would  be  no difficulty in holding  that  the               matters  relating to employment  must  include

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             ’all  matters in relation to  employment  both               prior, and subsequent, to the employment which               are incidental to the employment and form part               of terms and conditions of such employment." (1) [1962] 2 S.C.R. 586, 596. 411 The  argument was stressed on behalf of the respondent  that success in the S.S.L.C. examination had no relevance to  the post  of  tracer and the tracers of the erstwhile  State  of Hyderabad who were allotted to the new State of Mysore  were persons  similarly situated and there was  no  justification for  making  a discrimination against only some of  them  by creating  a higher pay scale for tracers who had passed  the S.S.L.C.  examination.  It was contended for the  respondent that all, the tracers who were allotted to the new State  of Mysore  were persons who were turning out the same kind  -of work and discharging the same kind of duty and there was  no rational  basis for making two classes of tracers, one  con- sisting of those who had passed the S.S.L.C. examination and the other consisting of those who had not.  In our  opinion, there  is no justification for the argument put  forward  in favour  of the respondent.  It is well-settled  that  though Art.  14  forbids  class legislation,  it  does  not  forbid reasonable  classification for the purposes of  legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Art. 14, its validity can  be sustained  if  two tests are satisfied.  The first  test  is that the classification on which it is founded must be based on  an intelligible differentia which distinguishes  persons or  things  grouped  together from others left  out  of  the group;  and  the  second test is  that  the  differentia  in question  must  have  a reasonable relation  to  the  object sought to be achieved by the rule or statutory provision  in question.  In other words, there must be some rational nexus between the basis of classification and the object  intended to  be  achieved  by the statute or the rule.   As  we  have already stated ’ Arts. 14 and 16 form part of the same  con- stitutional  code of guarantees and supplement  each  other. In  other  words,  Art.  16  is  only  an  instance  of  the application  of  the general rule of equality laid  down  in Art. 14 and it should be construed as such.  Hence, there is no  denial of equality of opportunity unless the person  who complains  of  discrimination is equally situated  with  the person  or  persons who are alleged to have  been  favoured, Article  1.6(1) does not bar a reasonable classification  of employees  or reasonable tests for their selection.   It  is true  that the selective test adopted by the Government  for making  two different classes will be violative of Arts.  14 and  16 if there is no relevant connection between the  test prescribed  and  the interest of public service.   In  other words, there must be a reasonable relation of the prescribed test to the suitability of the candidate for the post or for employment  to  public service as such.  The  provisions  of Art.  14  or  Art.  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.   Such qualifications need not be only technical but they can  also be general qualifications relating to the suitability of the candidate  for public service as such.  It is therefore  not right to say that in the appointment to the post of  tracers the Government ought to 412 have  taken into account only the technical  Proficiency  of the  candidates in the particular craft.  It is open to  the Government   to  consider  also  the   general   educational

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attainments  of  the candidates and to  give  preference  to candidates  who  have  a  better  educational  qualification besides technical proficiency of a tracer.  The relevance of general  education  even  to technical  branches  of  public service was emphasised long ago by Macaulay as follows:               Men  who have been engaged, up to one and  two               and twenty, in studies which have no immediate               connexion with the business of any profession,               and the effect of which is merely to open,  to               invigorate,  and  to  enrich  the  mind,  will               generally  be found, in the business of  every               profession,  superior  to men  who  have,,  at               eighteen  or nineteen, devoted  themselves  to               the special studies of their calling.  Indeed,               early  superiority in literature  and  science               generally  indicates  the  existence  of  some               qualities  which are securities against  vice-               industry,  self-denial, a taste for  pleasures               not  sensual, a laudable desire of  Honourable               distinction,  a still more laudable desire  to               obtain   the   approbation  of   friends   and               relations.   We,  therefore,  think  that  the               intellectual test about to be established will               be found in practice to be also the best moral               test can be devised."         (Hansard, Series, 3 CXXVIII, 754, 755) In our opinion, therefore, higher educational qualifications such  as  success in the S.S.L.C. examination  are  relevant considerations for fixing a higher pay scale for tracers who have passed the S.S.L.C. examination and the  classification of  two grades of tracers in the new Mysore State,  one  for matriculate  tracers with a higher pay scale and  the  other for  non-matriculate tracers with a lower pay scale  is  not violative of Arts. 14 or .16 of the Constitution. We proceed to consider the next question raised on behalf of the  respondent, viz., that the condition of service of  the respondent  has been adversely affected by the  creation  of two  new  pay scales and that there was a violation  of  the provisions of s. 115 of the States Reorganisation Act,  1956 (Act No. 37 of 1956) which states:               "115.  Provisions relating to other  services-               (I)  Every person who immediately  before  the               appointed  day is serving in  connection  with               the   affairs   of   the   Union   under   the               administrative  control  of  the   Lieutenant-               Governor  or Chief Commissioner in any of  the               existing State of Ajmer, Bhopal, Coorg,  Kutch               and   Vindhya  Pradesh,  or  is   serving   in               connection  with  the affairs of  any  of  the               existing States of Mysore, Punjab, Patiala and               -East  Punjab  States  Union  and   Saurashtra               shall, as from 413               that  day, be deemed to have been allotted  to               serve  in connection with the affairs  of  the               successor State to that existing State.               (2)  Every person who immediately  before  the               appointed  day is serving in  connection  with               the affairs of an existing State part of whose               territories is transferred to another State by               the provisions of Part 11 shall, as from  that               day,   provisionally  continue  to  serve   in               connection  with the affairs of the  principal               successor State to that existing State  unless               he is required by general or special order  of

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             the Central Government to serve  provisionally               in  connection with the affairs of  any  other               successor State.               (3) As soon as may be after the appointed day,               the  Central Government shall, by  general  or               special  order, determine the successor  State               to   which   every  person  referred   to   in               subsection  (2) shall be finally allotted  for               service  and the date with effect  from  which               such allotment shall take effect or be  deemed               to have taken effect.               (4) Every person who is finally allotted under               the   provisions  of  sub-section  (3)  to   a               successor  State shall, if he is  not  already               serving therein be made available for  serving               in that successor State from such date as  may               be   agreed  upon  between   the   Governments                             concerned, and in default of such agre ement, as               may be determined by the Central Government.               (7) Nothing in this section shall be deemed to               affect  after the appointed day the  operation               of the provisions of Chapter I of Part XIV  of               the   Constitution   in   relation   to    the               determination of the conditions of service  of               persons serving in connection with the affairs               of the Union or any State:               Provided   that  the  conditions  of   service               applicable  immediately before  the  appointed               day  to the case of any person referred to  in               sub-section  (1) or sub-section (2) shall  not               be varied to his disadvantage except with  the               previous approval of the Central Government." It  was  stated that in the erstwhile  Hyderabad  State  the respondent  was  kept in one grade  along  with  matriculate tracers and there has been a violation of the proviso to  s. 115(7)  of the States Reorganisation Act, 1956,  because  in the new Mysore State the respondent has been made to work in a  separate  grade of non-matriculate tracers.   We  do  not think there is any substance in this contention.  We do  not propose,  in this case, to consider what is the  full  scope and meaning of the phrase "Conditions of SCI-13 414 service"  occurring in the proviso to S. 115 of  the  States Reorganisation Act.  It is sufficient for us to say that, in the present cast,, there is no violation of the proviso  and the respondent is not right in contending that his condition of service is adversely affected because he is made to  work in  the grade of non-matriculate tracers in the  new  Mysore State.   It was alleged by the respondent that according  to Hyderabad rules 20 per cent of the vacancies of SubOverseers were to be from the grade of tracers and for those who  were not  promoted there was another grade of Rs. 90-120  and  if the  order  of the Superintending Engineer dated  March  19, 1958  was  to stand, the respondent’s  chance  of  promotion would   be   affected.   In  their   counter-affidavit   the appellants  have said that 10 percent of the tracers in  the new State of Mysore are entitled to be promoted to the grade of  Assistant  Draftsmen in the scale of Rs.  110-220.   The basis  of promotion to the higher grade was the  inter-State seniority  list prepared under the provisions of the  States Reorganisation Act.  It was stated that the seniority of the respondent was not affected and he had not been deprived  of any accrued benefits.  The basis of promotion to the  higher

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grades was selection based on merit-cum-seniority.  In other words,  both  matriculate and non-matriculate  tracers  were eligible  for  promotion  on the basis  of  the  inter-State seniority  list  prepared  for  this  Department.   In   our opinion,  Counsel on behalf of the respondent is  unable  to make good his submission on this aspect of the case. For  the reasons expressed we hold that the judgment of  the Mysore  High Court dated January 15, 1963 in  Writ  Petition No.  48 of 1962 should be set aside and this appeal must  be allowed.   But,  as  directed by this  Court  in  its  order granting special leave dated November 6, 1963, the appellant State of Mysore will pay the costs of the respondent. R.K.P.S.                              Appeal allowed. 415