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PETITIONER: STATE OF U.P. AND ANOTHER

       Vs.

RESPONDENT: V. RAM GOPAL SHUKLA

DATE OF JUDGMENT10/04/1981

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) KOSHAL, A.D.

CITATION:  1981 AIR 1041            1981 SCR  (3) 460  1981 SCC  (3)   1        1981 SCALE  (1)687  CITATOR INFO :  R          1981 SC1575  (1,2)

ACT:      Uttar Pradesh  Promotion by  Selection in  Consultation with Public  Service  Commission  (Procedure)  Rules,  1970, Rules 7A  and 7B-Whether  the rules  are discriminatory  and violative of Articles 14 and 16 of the Constitution.      New plea-New  plea cannot  he allowed  at the  time  of hearing of the appeal in the Supreme Court.

HEADNOTE:      The selection  for the posts of Tehsildars in the State of U.P.  was to  be made  by promotion  from amongst various sources such  as Naib  Tehsildars, Peshkars  of  the  Kumaon Division, Kanungos,  Kanungo Inspectors  or Instructors  and Sadar Kanungos as per the procedure laid down in rules known as Uttar  Pradesh Adheenasth  Rajaswa Karyakari  (Tehsildar) Sewa  Niyamavali,  1966.  The  procedure  for  selection  is regulated by Rule 9 and under sub-section (6) of this Rule a select list  will be  drawn in order of merit separately for substantive vacancies  and temporary vacancies and officials will be  offered officiating  or temporary  vacancies in the order in which their names have been arranged in the "select list" as  and when  the vacancies occur during the course of the year.  This "select  list" will  hold good  only for one year or  until such  time a  review is made at the following selections.      Subsequently,  the  State  Government  made  the  Uttar Pradesh Promotion  by Selection  in Consultation with Public Service Commission  (Procedure) Rules,  1970, which governed various services,  to be  more  specific  29  Uttar  Pradesh services including  the services  of Tehsildars. The purpose of  these   rules  was  to  standardise  the  procedure  for promotion and  make it  uniform in respect of such services. The procedure  laid down  in the 1970 Rules for promotion as Tehsildars was  not substantially  different from  that laid down in  the Tehsildars  Rules, 1966.  By a Notification No. 4214/196.-Appointment, 3  dated 4th July, 1972 two new rules were introduced, namely, Rules 7A and 7B, in the 1970 Rules. As per these newly added rules candidates in the Select List made under  the 1966  Rules were  to  be  appointed  against substantive  vacancies   in  preference  to  any  candidates

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selected in accordance with the provisions of the 1970 Rules and unless  the candidates in the list were exhausted, other eligible candidates  were not to be considered for promotion so that  their chances  of promotion would be deferred to an undated future. 461      The respondent  who started  his service  as Kanungo in 1949, was  promoted as  Naib Tehsildar  and in  1962 he  was confirmed as such. In 1963, he was appointed as Tehsildar in an officiating  capacity. In  accordance with the ]966 Rules the Uttar  Pradesh, Public  Service Commission  selected 148 persons for  substantive appointment as Tehsildars and their names were  shown in  a list known as List-A. The Commission also selected 300 other persons for temporary or officiating appointment as  Tehsildars during the coming years and their names figured in what was called List-B. The respondent was, however, not  selected and his name could not be included in either of  the aforesaid two lists because he had an adverse entry forming  part of  the remarks recorded on his work and conduct and  had also been shown down below at serial 557 in the seniority  list of  Naib Tehsildars  in the  year  1966. Though the  adverse entry  was expunged in the year 1969 and his seniority  was also re-fixed at serial number 216 on 6th October, 1970,  since there was no selection after 1966, his name could  not be  included in either of the two lists even thereafter.      The respondent  challenged the vires of Rules 7A and 7B by filing  a petition  under Article 226 of the Constitution in the High Court of Allahabad. That petition was allowed in part and  Rules 7A and 7B were declared ultra vires Articles 14 and  1 6  of the  Constitution, in the impugned judgment. Hence the appeal by special leave by the State.      Dismissing the appeal, the Court, ^      HELD: 1:1.  Rules  7A  and  7B  of  the  Uttar  Pradesh Promotion by  Selection in  Consultation with Public Service Commission (Procedure) Rules, 1970, are ultra vires Articles 14 and 16 of the Constitution. [466 E, 473 A-B]      1:2. The  grievance of  the respondent, namely, that he had a  fundamental right  of being  considered for promotion when others  similarly situated were so   and that if he was not  considered   in  a   situation  like   that,   he   was discriminated against and was denied equality of opportunity is not only factually correct but well founded. [467 B-C]      2:1.  It   is  true   that  the  rules  regulating  the conditions of  service are within the executive power of the State or its legislative power under the proviso to Articles 309 of  the Constitution, but even so, such rules have to be reasonable, fair  and not  grossly unjust  if  they  are  to survive the  test of Articles 14 and 16 of the Constitution. A rule,  which contemplates  that unless  the  list  of  300 persons  is  exhausted  no  other  person  can  be  selected obviously, is  unjust and  it deprives  other persons in the same situation  of the  opportunity of  being considered for promotion. [470 F-H]      2:2. The  classification in this case cannot be said to be a  reasonable classification  based on  the  intelligible differentia having  a nexus  to  the  object  sought  to  be achieved. The  only basis of grouping the 300 persons in one category is  that they  were included  in the select list of 1966 and  that they were officiating. The respondent, in the instant case, could not be selected in the selection of 1966 on account  of  an  adverse  entry  which  was  subsequently expunged. His  position  in  the  seniority  list  was  also corrected but  because no  selection took  place after 1966.

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The respondent  could not  be included  in the  list for  no fault of his. If there held 462 been a  section and the list had been revised every year, as is the  requirement of  the rules,  the respondent, and like him many  others, would  have been included in the list. For example, some  candidates who  had not completed seven years could not  be  eligible  for  promotion  and  could  not  be included in  the Select  List of  1966 but  after a lapse of time they  became eligible and they might have been selected if selection  had taken  place. But,  the door for promotion had been  foreclosed for the respondent and many others like him by Rules 7A and 7B for no fault of theirs. The objection taken by the Public Service Commission and the letter of the Secretary  or   the  Board   of  Revenue  addressed  to  the Government indicating  that it  would take about 24 years to absorb  300  persons  included  in  List-B  and,  therefore, recommending that  the list  may not be enforced would point out  unmistakably   that  the  selection  was  unnecessarily postponed only  to accommodate  the 300  persons included in the Select List of 1966. There is no rational basis for such a departure  from the  ordinary operation  of the 1970 Rules which envisaged the preparation of a new list every year and for  singing   out  one   particular  list   for   according preferential treatment  to others  in the similar situations [469 B-F, 470 A-C]      State of  Jammu and  Kashmir v.  Triloki Nath Khosa and others [1974]  1 S.C.R. 771; Ramesh Prasad Singh v. State of Bihar and  others, [1978]  1 S.C.R.  787 and  Ganga Ram  and others v.  Union of  India and  others, [1973] 3 S.C.R. 481, applied.      Reserve Bank of India v. C.S. Rajappan Nair and others, I.L.R. 1977 Kerala 398, approved.      3. In  a case  where the  vires of  certain rules  were challenged as  being violative  of the Articles 14 and 16 of the Constitution, only State is a necessary party. The other persons likely  to be  affected by  the declaration  of  the rules as ultra vires are only proper parties. [471 E-F]      4. A party cannot be permitted to take up a new plea in the appeal  for the  first time  before this Court which was not taken before the High Court in writ petition. [472 E-F]      General Manager,  South Central Railway, Secundrabad an Anr. v.  A.V.R. Siddhanti  and Ors.,  [1974] 3  S.C.R.  207, followed.      B. Gopalaiah  v. Government  of Andhra  Pradesh, A.I.R. 1969 A.P.  204 and  J.S. Sachdev and Ors. v. Reserve Bank of India and Anr., I.L.R. (1973) II Delhi 392, approved.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 282 of 1980.      Appeal by  special leave  from the  judgment and  order dated the  29th March,  1980 of  the  Allahabad  High  Court (Lucknow Bench) know in Writ Petition No. 524 of 1979.                             AND      CIVIL MISCELLANEOUS  PETITION Nos.  4905 and  11949  of 1980. 463      G.N. Dixit,  Mrs. Shobha  Dikshit and H.R. Bhardwaj for the Appellants.      S.N. Kackar, K.K Mohan, Rajiv Datta and A.S. Pandit for the Respondent.      A.N. Pareek and S.K Jain for the Intervener.

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    The Judgment of the Court was delivered by      MISRA, J.  The  present  appeal  by  special  leave  is directed against  the judgment  dated 29th March 1979 of the Allahabad High  Court allowing  a petition under Article 226 of the Constitution.      In the  State of  Uttar Pradesh,  there  is  a  Service commonly known  as Naib  Tehsildars. They have always formed the backbone  of the  revenue administration  in that State. Sixty per  cent of  the posts  of Naib Tehsildars are filled through a  competitive examination  held by the State Public Service  Commission.  The  remaining  posts  are  filled  by promotion. There  is another  Service in that State known as the Service  of Tehsildars.  Cent percent  of the  posts  of Tehsildars are  filled by  promotion  from  amongst  various sources such  as Naib  Tehsildars, Peshkars  of  the  Kumaon Division, Kanungos,  Kanungo Inspectors  or Instructors  and Sadar Kanungos.      Ram Gopal  Shukla, the  respondent, started his service as Kanungo  in 1949.  In due course, he was promoted as Naib Tehsildar. In 1962, he was confirmed as such, and in 1963 he was appointed as Tehsildar in an officiating capacity.      It appears  that a  regular selection  for the posts of Tehsildars was  held in  1966 in  accordance with  the Uttar Pradesh  Adheenasth   Rajaswa  Karyakari   (Tehsildar)  Sewa Niyamavali, 1966  (hereinafter referred to as ’the Tehsildar Rules 1966’).  Rule 5 of these Rules provides the sources of recruitment to  the post  of Tehsildar.  Rule 6 thereof lays down conditions for eligibility and provides,-           "For the  purposes of recruitment to the Service a      selection strictly  on merit shall be made from amongst      all the permanent Naib Tehsildars, Tehsildars, Peshkars      of  the   Kumaon  Division,   Kanungo   Inspectors   or      Instructors and  Sadar Kanungos,  who have  put in  not      less than seven years’ service in the aggregate as such      or in an equivalent or higher 464      post in  a substantive  or officiating  capacity on the      first day of January of the year in which the selection      is made." Rule 7  enjoins upon the Parishad to report by list of March every year  to the Government the number of vacancies in the Service expected  during the  following calendar  year,  and then provides  that the  Governor shall  fix the  number  of appointments to  be made. Rule 8 lays down the criterion for selection. Rule 9 prescribes the procedure for selection. As this rule  is important for the purpose of the present case, it is reproduced in so far as it is relevant,-      "9.  The procedure for selection shall be as follows:      (1)  The Parishad  shall draw  up, in order of merit, a      list of most suitable candidates from amongst those who      are eligible  for promotion to the posts of Tehsildars.      The names  in the  list shall  ordinarily be double the      number of substantive vacancies to be filled during the      course of the year.      (2)  The Parishad  shall also  draw  up,  in  order  of      merit,  a   supplementary  list   containing  names  of      officials  considered   suitable  for   officiating  or      temporary vacancies expected to occur during the course      of the year.      (3)  The two  lists drawn  up under  clauses (1)  & (2)      above together  with a  gradation list  prepared  under      clause (b)  of Rule  10, indicating therein the reasons      for passing  over the seniors, if any and the character      rolls of  all the eligible officials shall be forwarded      by the Parishad to the Commission ........ ... ... "

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    (4)  The Parishad  shall  thereafter,  in  consultation      with the  Commission, fix  date, on  which a  Selection      Committee consisting of-           ...        ...       ...       ...      shall consider  the cases  of the  eligible  candidates      whose names  are contained  in the final lists drawn up      by the  Commission and  interview such  of them  as are      indicated by the Commission under clause (3) above.      (5)  The lists  of the  names selected by the Committee      shall be  taken with  him by  the representative of the      Commission 465      for  placing   them  before  the  Commission,  and  the      Commission,   shall   thereafter   send   their   final      recommendations to the Parishad.      (6)  The  Parishad  shall  draw  from  the  first  list      received from the Commission under clause (5) above, as      many candidates  as there  are permanent  vacancies and      will thereafter  re-arrange their  names in  accordance      with their  seniority in  the present  service and they      will be  appointed against  the substantive  vacancies.      The remaining  names of the first list and those of the      second list  will be  regarded as  forming the  ’Select      List’ to  be drawn  up in order of merit. The officials      will be  offered officiating  or temporary vacancies in      the order  in which  their names  have been arranged in      the aforesaid  ’Select List’  as and when the vacancies      occur during the course of the year. This ’Select List’      will hold  good only  for one  year or  until such time      review is  made at  the following  selection. (Emphasis      supplied)      (7)  In case  permanent vacancies  do not occur for two      consecutive years  and it  becomes necessary  to make a      selection for  temporary or officiating vacancies only,      then  also  the  procedure  prescribed  above  will  be      followed."      In accordance  with  the  aforesaid  rules,  the  Uttar Pradesh Public  Service Commission  selected 148 persons for substantive appointment  as Tehsildars  and their names were shown in  a list  known  as  List  A.  The  Commission  also selected 300  other persons  for temporary  and  officiating appointment as  Tehsildars during the coming years and their names figured in what was called List B. The respondent was, however, not selected and consequently his name could not be included in  either of  the aforesaid  two lists, presumably because he  had an adverse entry forming part of the remarks recorded on  his work  and conduct  and had  also been shown down below  at serial  No. 557 in the seniority list of Naib Tehsildars in  the year  1956 Though  the adverse  entry was expunged in  the year  1969 and  his seniority  was also re- fixed at serial No. 216 on 6th of October 1970, as there was no selection  after 1966,  his name could not be included in either of  the two  lists. He  has, however, no grievance on that account.      Subsequently,  the  State  Government  made  the  Uttar Pradesh Promotion  by Selection  in Consultation with Public Service  Commission  (Procedure)  Rules,  1970  (hereinafter referred to as ’the 466 1970 Rules’).  These rules  govern various  Services, to  be more specific  29 U.P.  Services including  the  Service  of Tehsildars. The  purpose of  these rules  obviously  was  to standardise the  procedure for promotion and make it uniform in respect  of all such Services. The procedure laid down in the  1970   Rules  for   promotion  as   Tehsildar  was  not

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substantially different from that laid down in the Tehsildar Rules  1966.   The  respondent,   therefore,  did  not  feel aggrieved even  by the  introduction of  the 1970 Rules. His grievance started  only with  the introduction  of rules 7-A and 7-B  to the  1970 Rules  by  notification  No.42/4/1966- Apptt. 3  dated 4th  of July  1972. As  the question  to  be decided in  this case is about the vires of rules 7-A and 7- B, it will be appropriate to read them at this stage,-           "7-A. Notwithstanding  anything contained in these      rules, but subject to the proviso to rule 18, the names      of candidates on the Select List appointed in temporary      or officiating  vacancies prior to the date of issue of      this notification,  shall be  rearranged  in  order  of      seniority."           "7-B.  The   candidates  of  the  Select  List  as      rearranged  in   accordance  with  rule  7-A  shall  be      appointed against  substantive vacancies  in preference      to  any  candidate  selected  in  accordance  with  the      provisions of these rules."      The complaint  of the respondent was that the aforesaid new rules  7-A and  7-B were discriminatory and violative of Article 14  and 16  of the  Constitution, in  as much as the candidate in  the Select  List of  1966 were to be appointed against substantive vacancies in preference to any candidate selected in accordance with the provisions of the 1970 Rules and unless  the candidates in the list were exhausted, other eligible candidates  were not to be considered for promotion so that  their chances  of promotion would be deferred to an undated future.  The further grievance of the respondent was to the  following effect.  The Select  List was to hold good only for one year or until such time a review was in made at the following  selection. Thus,  the life of the Select List of 1966 was for one year only on the expiry of which it died its natural  death. In  this view of the legal position, the appointment of Tehsildars from the Select List of 1966 after the expiry  of a  year from  the date  of its  operation was illegal on  the face  of it. On the strength of Rule 7-A and rule 7B,  no selection  was to  be held  unless 300  persons included in List were absorbed.      The respondent challenged the vires of rules 7-A and 7- B by filing a petition under Article 226 of the Constitution in the High 467 Court of  Allahabad. That  petition was  allowed in part and rules 7-A  and 7-B were declared ultra vires Articles 14 and 16 of the Constitution in the impugned judgment.      Shri Dixit,  appearing for the State has contended that a mere  chance of  promotion is  not a  condition of service giving rise  to a  fundamental right.  We  are  afraid  this contention is  irrelevant to  the decision of this case. The precise grievance  of the  respondent has been that he had a fundamental right  of being  considered for  promotion  when others similarly  situated were so considered and that if he was  not  considered  in  a  situation  like  that,  he  was discriminated   against   and   was   denied   equality   of opportunity. This  grievance, if  factually correct, must be held to be well-founded.      It was next contended by Shri Dixit that the candidates covered by  rule 7-A  are a  class by  themselves, that  the classification is  a reasonable  classification and  that as the respondent  does not satisfy the requirements of rule 7- A, he  cannot claim  that any infraction of Article 14 or 16 bas taken place.      According to  Shri Dixit,  two conditions are necessary to bring  a person  within the  fold of  that rule:  (1) the

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candidate’s name must have been included in the Select List; and (2)  he must  have been  appointed  in  a  temporary  or officiating vacancy  prior to  the  date  of  issue  of  the notification of  4th  July  1972.  The  respondent  did  not satisfy these requirements and therefore did not fall within the purview  of rule  7-A. Rule  7-B gives preference to the candidates in  the Select  List as  rearranged in accordance with rule  7-A, which, according to Shri Dixit, was based on a reasonable classification and therefore the respondent can have no  grievance. In  support of this contention, reliance has been  placed on  Reserve Bank  of India v. C.S. Rajappan Nair and  others, State  of Jammu  & Kashmir v. Triloki Nath Khosa and  others, Ramesh Prasad Singh v. State of Bihar and others, and  Ganga Ram  and others  v. Union  of  India  and others. In C.S. Rajappan Nair (supra), the classification of a group  of employees  who had  officiated in  a  particular capacity as  a different  class, treating  them  differently from others who had not the opportunity to function as such, was held  to be  an intelligible differentia which can stand the test of equality provided by Article 16 of the 468 Constitution.  In   Triloki  Nath   Khosa  (supra),  persons appointed directly  and by  promotion had  integrated into a common class  of Assistant  Engineers.  The  question  arose whether for  the  purpose  of  promotion  to  the  cadre  of Executive Engineers,  they could  be classified on the basis of educational qualification. It was held by this Court that the rule providing that graduates shall be eligible for such promotion to  the  exclusion  of  diploma  holders  did  not violate Articles  14 and  16 of  the Constitution. In Ramesh Prasad Singh  (supra), this Court, dealing with principle of equality under Articles 14 and 16, observed,-           "The doctrine  of equality  before law  and  equal      protection of  laws and  equality of opportunity in the      matter  of   employment  and   promotion  enshrined  in      Articles  14  and  16  of  the  Constitution  which  is      intended to  advance justice by avoiding discrimination      is attracted  only when  equals are treated as unequals      or where  unequals are treated as equals. The guarantee      of equality  does not  imply that the same rules should      be made  applicable in  spite of  differences in  their      circumstances and  conditions. Although Articles 14 and      16 of  the Constitution  forbid hostile discrimination,      they  do   not  forbid  reasonable  classification  and      equality of  opportunity in  matters of promotion means      equality as  between  members  of  the  same  class  of      employees and  not equality between members of separate      independent classes.      ...                 ...             ...           Equality is for equals, that is, who are similarly      circumstanced are  entitled to  an equal  treatment but      the guarantee  enshrined in  Articles 14  and 16 of the      Constitution cannot  be carried  beyond the point which      is well-settled  by a catena of decisions of this Court      " In Ganga Ram (supra), dealing with Articles 14 and 16 of the Constitution, this Court again held,-           "Mere production  of inequality  is not  enough to      attract the  constitutional  inhibition  because  every      classification is likely in some degree to produce some      inequality.   The    classification   need    not    be      scientifically  perfect   or  logically  complete.  The      matter has  to be considered in a practical way without      whittling down  the equality clause. The classification      must however be founded on intelligible differentia

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469      which on rational grounds distinguishes persons grouped      together from  those left  out, and it must bear a just      and reasonable  relation to  the object  sought  to  be      achieved."      There is  no dispute  with the  principles of  law laid down in  the aforesaid  cases. By  now,  the  principles  of classification are  well-settled and  need not  be repeated. The question  is of  application of  those principles to the facts of  the present  ease. The only basis for grouping the 300 persons  in one  category is  that they were included in the Select  List of 1966 and that they were officiating. The respondent in  the instant case could not be selected in the selection of  1966 on  account of an adverse entry which, as stated earlier,  was subsequently  expunged. His position in the  seniority  list  was  also  corrected  but  because  no selection took  place after 1966 the respondent could not be included in  the list for no fault of his. If there had been a selection  and the  list had been revised every year as is the requirement  of the  rules, the respondent, and like him many others,  would have  been included  in  the  list.  For example, some  candidates who  had not completed seven years could not  be  eligible  for  promotion  and  could  not  be included in  the Select  List of  1966 but  after a lapse of time they  became eligible and they might have been selected if selection  had taken  place. But,  the door for promotion had been of reclosed for the respondent and many others like him by  rules 7-A  and 7-B  for no  fault of theirs. In this connection reference  may be  made to  the objection  of the Public Service Commission and the letter of the Secretary of the Board  of revenue,  to show that it would take. about 24 years  to  absorb  300  persons  included  in  List  B.  The Secretary,  Board   of  Revenue,   vide   his   letter   No. 14708/T.N.T.-59-A/70 dated  30th of  January  1973,  to  the Secretary, Government  Revenue Department (filed as Annexure II to  the counter-affidavit), recommended that the List may not be  enforced. In  so far  as it  is  pertinent  for  the present purpose, it reads,-           "On the  basis of  the selection in the year 1966,      the List  ’B’ was  prepared for  300 names. During this      period all  the candidates  of list ’B’ are working. So      long as  all these  candidates are  not absorbed in the      regular vacancies,  the question  of  second  selection      does not  arise  till  then.  Only  56  vacancies  have      occurred after the selection of 1966. According to this      the average  vacancies in  a year  are at  10, with the      result, it  will take  24 years  to exhaust  the  above      list. Till then no selection is Possible." 470      In  the  circumstances,  the  Secretary  requested  the Government to  take steps to recommend to the Public Service Commission to  make the next selection of Tehsildars without any further delay. The objections of the Secretary, Board of Revenue, were similar to the objections raised by the Public Service Commission.  These letters  and objections point out unmistakably that  the selection was unnecessarily postponed only to  accommodate the  300 persons included in the Select List of 1966. There appears to be no rational basis for such a departure  from the  ordinary operation  of the 1970 Rules which envisaged the preparation of a new list every year and for  singling   out  one   particular  list   for  according preferential treatment  to  the  persons  whose  names  were contained therein. The classification in this case therefore cannot be  said to  be a  reasonable classification based on intelligible differentia having a nexus to the object sought

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to be achieved.      It is,  however,  contended  for  the  State  that  the selection could  not take  place for  all these  long  years because of  a  stay  order  passed  by  the  High  Court  in petitions filed by some candidates challenging the Tehsildar Rules 1966.  This has been refuted by Shri S.N. Kacker and a finding recorded  by the High Court makes out that there was no order  staying the  holding of  selection. All  that  was stayed was  the confirmation of the officers promoted to the posts of  Tehsildars.  It  is  therefore  not  correct  that selection could  not take place because of a stay order from the High Court.      As a  second limb of this argument, it was contended on behalf of  the State  that the Government was the sole judge of the administrative necessities and there being no rule to the contrary,  the Government could hold selection according to the  need and  no exception  can be taken to the power of the State.      There is  no denying the fact that the rules regulating the conditions  of service are within the executive power of the State  or its  legislative power  under the  proviso  to Article 309  but even  so, such rules have to be reasonable, fair and not grossly unjust, if they are to survive the test of Articles  14 and  16 of  the Constitution.  A rule  which contemplates  that   unless  the  list  of  300  persons  is exhausted no  other person  can be  selected,  obviously  is unjust and  it deprives  other persons in the same situation of the opportunity of being considered for promotion. 471      It  was   next  contended   for  the   State  that  the declaration  of  rules  7-A  and  7-B  as  ultra  vires  the Constitution would  affect not  only the  incumbents of  one Service but  of 29  Services and  a fairly  large number  of persons would  be  affected  in  that  situation,  that  the respondent did not implead any of those persons likely to be affected in the various Services, that in any case, at least the Naib  Tehsildars or other persons who have been promoted as Tehsildars  and who  are likely  to be  affected  by  the declaration of  rules 7-A and 7-B as ultra vires should have been impleaded  as parties  and that in the absence of those parties, the  writ petition  was not maintainable and should have been dismissed by High Court on that score.      Shri S.N.  Kacker appearing  for the respondent, on the other hand,  has contended  that no  such plea  was taken on behalf  of  the  State  before  the  High  Court  and  that, therefore, it  cannot be permitted to take up a new plea for the first  time before  this Court.  Elaborating the  point, Shri Kacker  urged that if such a plea had been taken before the High  Court, the  respondent would  have  impleaded  all those persons  as parties  and filled up the lacuna, if any, and that  if the  State is  permitted to take up such a plea for the  first time  before this  Court, it  would seriously prejudice the  case of the respondent. Alternatively, it was contended that  the respondent is aggrieved by the amendment of the  1970 Rules by the 1972 notification which introduced rules 7-A  and 7-B,  that the  respondent has challenged the vires of rules 7-A and 7-B and only the State is a necessary party who  has already been impleaded, and that at the most, those persons who are likely to be affected in case the said rules are  declared ultra  vires, may  be proper parties but are not necessary parties. He sought to take support for his contention  from   B.  Gopalaiah  v.  Government  of  Andhra Pradesh, J.S.  Sachdev &  Ors. v.  Reserve Bank  of India  & Anr.,  and   General   Manager,   South   Central   Railway, Secundrabad &  Anr. v.  A  .  V.  R.  Siddhahi  and  Ors  In

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Gopalaiah’s case  dealing with a situation as in the present case, the Andhra Pradesh High Court held,-           "This  is   not  a   case  of   discrimination  of      individual against  individual. This  is a case where a      whole class of citizens have been discriminated against      and the  court can not refuse to give relief to them on      the ground that the 472      class of  persons who  will be benefited as a result of      the discrimination are not before the Court. The person      who complains  of discrimination  cannot be expected to      search the country for all persons who are likely to be      benefited by  its discriminatory  policy. Of course, if      the  discrimination  is  in  favour  of  an  individual      against an  individual different  considerations  might      arise. But  this is  not such  a case.  In my  opinion,      where a scheme formulated by the Government is attacked      on the  ground of its being discriminatory the position      is precisely  the same  as if  a statute is attacked as      being discriminatory  and it  can never be an answer to      such an attack that persons likely to be benefited by a      discriminatory statute  should be  brought  before  the      Court before the statute is struck down."      In J.S. Sachdev’s case (supra), a Division Bench of the Delhi High  Court endorsed the view taken in Goplaiah’s case (supra). In  South Central Railway’s case (supra), a similar objection taken before the Supreme Court was repelled on two grounds, firstly,  because this  point was  not canvassed in the lower  courts, and  secondly, because  the employees who were likely  to be affected as a result of the re-adjustment of the  petitioner’s  seniority  were  at  the  most  proper parties and  not necessary  parties  and  their  non-joinder could not be fatal to the writ petition.      In view of the law laid down in South Central Railway’s case (supra), the State cannot be permitted to take up a new plea which was not taken before the High Court.      Shri B.P.  Sharma  had  moved  an  application  (C.M.P. No.49051.80) for  permission to  intervene in  the appeal on the ground  that he was vitally interested in the outcome of the instant appeal which would have a great bearing upon the claim petition pending before the Service Tribunal, Lucknow. This application was ordered to be listed at the time of the hearing  of  this  appeal.  He  also  moved  an  application (C.M.P.No. 11949/80 for modification of the stay order dated 23rd of  April 1980  in the appeal filed by the State, so as to govern  other cases  affected by rules 7-A and 7-B of the 1970 Rules,  as amended  by the 1972 notification. Later on, he realised  that such  an application could not be moved on behalf of  an intervener, and therefore, instead of pursuing this application, he 473 filed Writ  Petition No.  3806 of 1980, which has been dealt with separately.  Both these  applications  are,  therefore, dismissed.      For the  reasons given  above, we  find no error in the impugned  judgment.   We  accordingly  dismiss  the  appeal. Parties shall, however, bear their own costs. S.R.                                       Appeal dismissed. 474