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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: M.   N. KRISHNA MURTHY & ORS.

DATE OF JUDGMENT05/10/1972

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH SIKRI, S.M. (CJ) PALEKAR, D.G. DWIVEDI, S.N.

CITATION:  1973 AIR 1146            1973 SCR  (2) 575  1973 SCC  (3) 559  CITATOR INFO :  F          1974 SC2077  (5,9)  E          1975 SC2112  (4)  E&R        1978 SC 515  (7)  D          1978 SC 747  (5,10)  R          1981 SC1829  (121)  F          1987 SC 415  (16)  R          1987 SC1858  (18)

ACT: Mysore State Accounts Services (Recruitment) Rules 1959--(As amended  retrospectively by State  Government  Notifications Nos.   GSR 384 dated 30th August, 1967)--Division  into  two classes  of  members of the same service, belonging  to  the same  cadres,  for purposes of a difference to  be  made  in their promotion chances--Rule-making power under proviso  to Article 309 of the Constitution--Scope of--Cannot be used to validate  unconstitutional  discrimination  in   promotional chances. Practice--Points not raised or argued before High Court--Not allowed to be raised for first time before Supreme Court.

HEADNOTE: The  two respondents, who were petitioners before  the  High Court  had joined the Accounts Service in  the  Controller’s Office  of  the  former Mysore State  as  first  and  second division  clerks.   Consequent  upon the  abolition  of  the Controller’s   Office,  the  petitioner  began  working   as Divisional  Accounts Cadre was created by the  Mysore  Govt. under the administrative control of the Chief Engineer. Both the petitioners passed the prescribed examinations and  were absorbed  in the Divisional Accounts Cadre. In April,  1959, the PWD Reorganisation Committee recommended the transfer of the PWD Accounts Branch into the newly set-up Controller  of State Accounts. Accordingly, the petitioners came under  the administrative control of the Controller and the designation of   their   office  was  changed  to  that   of   "Accounts Superintendent"  On  15-5-1959, the  two  formerly  separate units  of  the Accounts service, namely  PWD  Accounts  Unit under  the  Chief Engineer, PWD and the  Local  Funds  Audit Unit,  known  also as "the said  Accounts  Department"  came

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under the common administrative control of the Controller of State  Accounts.  On  26-5-59,  the  Mysore  State  Accounts Service  Cadre Recruitment Rules were issued   and  combined cadre  strengths  were fixed. On 30-8-67,  the  State  Govt. issued  three  Notifications amending the  1959  Rules  with retrospective   effect.  The  petitioners   challenged   the Notifications  an  the  High Court  as  being  violative  of Articles  14  and 16 (1) of the Constitution of  India.  The High   Court  quashed  the  three  notifications   and   the promotions of the respondents in the Writ Petition.      Dismissing the appeal. HELD  :  (i) The High Court rightly declared  the  purported amendments   in  the  rules  of  1959,  which sought   to disintegrate  a  service which had been integrated,  to   be ultra  vires.  Such  amendments  made  for  the  purpose  of justifying  the illegal promotion made, in the teeth of  the protection  conferred  by  Articles  14  and  16(1)  of  the Constitution  of  India upon Indian citizens  in  Government service,  could  not be upheld. The power  of  making  rules relating to recruitment and conditions of service under  the proviso  to  Article  309  could not  be  used  to  validate unconstitutional  discrimination in promotional  chances  of Government servants who belong to the same category. [579C] 2-L499Sup.  Cl/73 576 Inequality   of   opportunity  of  promotion,   though   not unconstitutional  per se, must be justified On the  strength of  rational  criteria co-related to the object  of  such  a difference  must  be presumed to be selection  of  the  most competent  from amongst those possessing qualifications  and backgrounds  entitling _them to be considered as members  of one class.  Articles 14 and 16(1) of the Constitution  must be held to be violated when member of one class are not even considered for promotion. [580G] State of Mysore V. Padmanabhacharya AIR 1966 S.C. 602  State of  Punjab  v. Joginder Singh, AIR 1963 S.C. 913 and  K.  M. Bakshi  v. Union of India [1965] Supp. 2 S.C.R.  169  relied on. Ram  Lal Wadhwa v. The State of Haryana AIR 1972  S.C.  1982 and S.    G.  Jatsinghani v. Union of India [1967] 2  S.C.R. 703 distinguished. (ii) It  is a well recognised practice of the Supreme  Court not  to allow new points to be raised for the first time  in the  Supreme  Court  when  they  involve  investigation   of questions of fact. [577G]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals No, 193 &  194 of 1971. Appeals  by special leave from the judgment and order  dated April 11, 1969 of the Mysore High Court at Bangalore in Writ Petitions Nos. 1416 and 2918 of 1967. A.   R.  Som Nath Iyer, and M. Veerappa, for  the  appellant (in both the appeals). R.   B. Datar and S. N. Prasad for respondent No. 1 (in both the appeals). M.   Ramajois  S. S. Khanduja and Lalita Kohli, for  respon- dents  Nos.  2 & 4-8 & Interveners (in M.  Choudhajah  &  14 others in C.A. No. 193/71). A.   G.  Ratnaparkhi  for Interveners (C.  Y. Shastri  &  19 Ors. in C.A. No. 193/71.). The Judgment of the Court was delivered by BEG, J. The State of Mysore has come to this Court with  two

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appeals  now before us by Special Leave against  the  common judgment on two Writ Petitions which were allowed.  The High Court   of  Mysore  had  quashed  three   State   Government Notifications  Nos.  GSRS. 384, and 392 and 303, dated  30th August,  1967, amending the Mysore State  Accounts  Services (Recruitment) Rules, 1959, and the promotions of Respondents 3 to 8 of in Writ Petition No. 1416/67.  It had directed the State  of  Mysore to consider the cases of  the  petitioners with  those  of Respondents 3 to 8 for promotion  before  it under the Mysore State Accounts Services (Recruitment) Rules 1959,  made under Article 309 of the Constitution of  India. notified on 26-5-1959. 577 The  two petitioners before the High Court, who are  respon- dents  before us, had joined the Accounts’ services  in  the Comptroller’s office of the former Mysore State as first and second  Division Clerks.  Consequent upon the  abolition  of the  Comptroller’s office the petitioners began  working  as Accounts  Clerks  under the Chief Engineer, P.W.D.  On  31st October, 1953, a Divisional Accounts’ Cadre, in the scale of Rs.  130-335 was created by the Mysore Government under  the administrative  control  of the Chief  Engineer.   Both  the petitioners  passed  the prescribed  examinations  and  were absorbed in the Divisional Accounts’ Cadre.  It appears that in  April,  1959, the P.W.D.  Reorganisation  Committee  had recommended  the transfer of the P.W.D. Accounts’ Branch  in toto  to the newly set up Controller of State  Accounts.  in accordance  with this recommendation, the  petitioners  came under  the administrative control of the Controller and  the designation   of  their  office  was  changed  to  that   of "Accounts’  Superintendent".   On 15th May,  1959,  the  two formerly separate units of the Accounts service, namely  the P.W.D.  Accounts unit, under the Chief Engineer  of  P.W.D., and  the.  Local Fund Audit unit, known also as  "the  State Accounts’ Department", came under the common  administrative control  of the Controller of State Accounts.  On  26h  May, 1959,   the  Mysore  State  Accounts  Services’  Cadre   and Recruitment  Rules were issued and combined  cadre  strength were fixed. The  High  Court after examining the rules of 1959,  in  the context  of  all the orders, proceeding  and  following  the promulgation  of these Rules, concluded : "There  cannot  be the  slightest  doubt  from these rules  that  a  clear  and complete  integration  was  brought about  between  the  two units".   It pointed out that the qualifications and  status of  the  officers  of  the  formerly  separate  units   were identical, their work was of the same nature, the recruiting authorities were the same, the standards observed and  tests prescribed  for entry into the formerly separate units  were identical.   The  result of the Rules of 1959  was  that  an artificial  distinction based on mere separate  control  had been  abolished  so that both units came under  the  legally single  administrative Control of the  Accounts’  Department incharge   of  the  Controller  of  State   Accounts.    The petitioners  became  absorbed in what was legally  a  single permanent service regulated by uniform After  examining the cases of the petitioners that,  in  the matter of promotions, they were discriminated against simply because  they had worked in the P.W.D. Accounts Unit,  which had   ceased  to  exist,  the  High  Court  held  that   the petitioners’  grievances  were  justified.   It  found  that figures showing the number of appointments of members of the same  service  derived.  from the  formerly  separate  units indicated  "a striking disparity in the  promotional  oppor- tunities  between the officers of the two wings in the  same

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cadres". 578 It  said: "While the rules of 1959 integrated the two  wings into one service and provided for promotion on the basis  of seniority-cum-merit,  the impugned Notifications  fixing  up the  cadre strength reduce the number of  promotional  posts available  to the Public Works Accounts Unit to a  very  low figure  as compared with the promotional opportunities  open to  the  officers in the other wing".   It  had,  therefore, struck down the impugned Notifications as violations of  the Constitutional  guarantees given by Article 14 and 16(1)  of the Constitution. The  learned Counsel for the State of Mysore has  contended: firsly,  that  the petitioners, now respondents  before  us, were  never  promoted or appointed to offices held  by  them under  the rules of 1959 so that they could not complain  of denial  of equality of promotional chances;  and,  secondly, that  the  amendments made retrospectively in the  rules  in 1967,  justifying  the differences  of  promotional  chances between  the two wings of the same service,  were  perfectly legal  and  bore  a  rational nexus to  the  object  of  the differences made. So  far as the first contention is concerned, we are  unable to entertain it for the first time in this Court.  We do not find any indication that the point, even if such a  position was  taken on behalf of the State, was argued at all  before the  Mysore High Court.  The submission that the High  Court had wrongly proceeded on the assumption that the petitioners were   promoted  and  appointed  under  the  rules  of   the integrated service although the point was ,argued before the Mysore High Court, is not borne out even by any assertion in the  application made by the appellant under Article 1  3  2 and 1 3 3 ( 1 ) (c) of the Constitution of India before  the Mysore High Court.  Our attention was invited to a paragraph in  that application where it was submitted that  the  "High Court should have held" that the answering respondents  were placed  "in  independent charge of the duties  of  Assistant Commissioner  without  conferring any right  of  benefit  of promotion"  But,  this submission does not appear to  us  to meet  the objection that the point was not urged,  when  the petitions  were  argued  before  the  High  Court,  and  the petitioners were not entitled to the benefit of the Rules of 1959 on the ground that they were not promoted to the  posts held  by  them  in the service.  It  is  a  well  recognised practice of this Court not to allow new points to be  raised for  the  first lime ’in this Court particularly  when  they involve investigation of questions of fact We, therefore, do not propose to deal with a controversy which does not  arise for consideration before us. The  question which remains for consideration by us  is  the one relating to the validity of a division into two  classes of  ,members  of  the same service, belonging  to  the  same cadres, for 579 purposes  of  a difference to be made in  their  promotional chances. Learned Counsel for the State has sought to justify this  difference  in promotional chances by a  reference  to differences  in  the  historical  backgrounds  and  to   the practice  of making the distinction in promotional  chances. The Mysore High Court had very rightly observed that neither a  fortuitous  artificial  division  in  the  past  nor  the unconstitutional   practice  of  making   an   unjustifiable discrimination in promotional chances of Government servants belonging to what was really a single category, without any reference  either  to  merit or  seniority,  or  educational

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qualifications, could justify the differences in promotional chances.   We  think  that  it  had  rightly  declared   the purported  amendments in the rules of 1959, which sought  to disintegrate  a  service which had been  integrated,  to  be ultra  vires.   Such  amendments made  for  the  purpose  of justifying the illegal promotions made, in the teeth of  the protection  conferred  by  Articles  14  and  16(1)  of  the Constitution  of  India upon Indian citizens  in  Government service, could not be upheld. , The High Court rightly relied on State of Mysore v. Padmana- bhacharya(1) to hold that the power of making rules relating to  recruitment and conditions of service under the  proviso to   Article   309   could   not   be   used   to   validate unconstitutional  discrimination in promotional  chances  of Government  servants  who belong to the same  category.   It must  be understood that a Government servant whose case  is considered for promotion but who fails to be selected on  an application  of just and reasonable criteria, such  as  that found in the merit-cum-seniority rule found in the Rules  of 1959,  cannot  complain of discrimination.   But,  what  the petitioners had complained of and established was that their cases  for promotion were not considered at all under  these Rules on the false premise that they belong to a class which disables   them  from  obtaining  equal  consideration   for promotion to the offices to which they considered themselves entitled.  The effect of the order of the Mysore High  Court was  only  that cases of the  petitioners,  now  respondents before  us, will be considered, in accordance with Rules  of 1959, in preparing the seniority list on merit-cum-seniority basis.  All that the order of the High Court enjoins is that the petitioners before it must not be ignored simply on  the assumption  that  the source of  their  initial  recruitment debars the consideration of their merits for promotion. Learned  Counsel  for the State of Mysore had  attempted  to rely  strongly  on  Ram Lal Wadhwa & Anr. v.  The  State  of Haryana  & Ors. (2) and S. C. Jaisinghani v. Union of  India (3).  In  Ram  lal Wadhwa’s case (supra),  the  majority  of learned Judges of this (1) A.I.R. 1966 S.C. 602.    (2) A.I.R. 1972 S.C. 1982. (3)  (1967) 2 S.C.R. 703. 580 Court  had reached the, conclusion that the  historical  and other  special  reasons  existing,  on  the  facts  of  that particular   case,   justified  the   difference   made   in promotional   chances  of  the  teachers  coming  from   two different sources.  We think that Wadhwa’s case was  decided on  its  own facts, the most important of  which  was  that, after  full  consideration of the pros and cons  of  various alternatives before it, the Government concerned had come to the  conclusion  that  the  provincialised  cadre  must   be gradually and not suddenly eliminated.  In that case,  there was no actual formal decision to integrate the two  branches -as  is  the case before us.  The rules before  us  levy  no doubt  whatsoever,  as we have already pointed out,  that  a complete  integration  of  the service  whose  members  came originally from two sources had been actually  accomplished. That was not the position in Wadhwa’s case which could  not, therefore, help the appellant. Similarly,    Jaisinghani’s    case   (supra)    was    also distinguishable, as it has been rightly distinguished by the Mysore High Court, on facts of that particular case.   There quotas  for  promotion had been fixed by the  Government  in exercise  of  a statutory power on rational  and  reasonable criteria.  In the case before us, the amendments in existing rules  were sought to be made for the purpose of  validating

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what,  as  the  Mysore High Court  had  rightly  held,  were violations of Articles 14 and 16 of the Constitution. Other cases mentioned by the Mysore High Court i.e. State of Punjab  v.  Joginder Singh(1) and K. M. Bakshi v.  Union  of India  (2  )  also show that inequality  of  opportunity  of promotion,  though  not  unconstitutional per  se,  must  be _justified  on the strength of rational criteria  co-related to the object for which the difference is made.  In the case of Government servants, the object of such a difference must be  presumed  to be a selection of the most  competent  from amongst  those  possessing  qualifications  and  backgrounds entitling them to be considered as members of one class.  In some  cases, quotas may have to be fixed ’between  what  are different  classes  or sources for promotion on  grounds  of public  policy.  If, on the facts of a particular case,  the classes  to be considered are reality different,  inequality of  opportunity in promotional chances may  be  justifiable. On the contrary, if the facts of a particular case  disclose no  such  rational distinction between members  of  what  is found to be really a single class no class distinctions  can be  made in selecting the best.  Articles 14 and 16  (1)  of the Constitution must be held to be violated when members of one class ire not even considered for promotion.  The  case before us falls, in our opinion, in the latter type of cases where the, difference in promotional opportunities of  those who were wrongly divided into (1) A.I.R. 1963 S. C. 913. (2) [1965] SUPP. 2 S. C. R. 169. 581 two classes for this purpose only could not be justified  on any  rational  grounds.  Learned Counsel for the  State  was unable  to indicate any such ground to us.   We,  therefore, think  that  the  Mysore High Court rightly  held  that  the impugned notifications were unconstitutional. Consequently,  we  dismiss  these appeals with  one  set  of costs. S.B.W. Appeals dismissed. 582