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PETITIONER: V. J. THOMAS AND ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT23/04/1985

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA RANGNATH

CITATION:  1985 AIR 1055            1985 SCR  (3) 881  1985 SCC  Supl.    7     1985 SCALE  (1)1068  CITATOR INFO :  R          1988 SC2073  (20)  F          1989 SC1256  (4)

ACT:        Civil  Service-Telegraphic Engineering Service (Group Posts) Recruitment  Rules, 1981,  Note to  sub-clause (4) of Appendix I-Constitutional validity of.

HEADNOTE:      Clause (1) in Appendix I to the Telegraphic Engineering Service (Class  II) Recruitment Rules, 1966 (1966 Rules, for short), provided  that promotion of a Junior Engineer to the post of Assistant Engineer shall be entirely by promotion on the  basis  of  selection  of  Junior  Engineers  through  a qualifying departmental examination. Sub-clause (1) provided that the  departmental qualifying  examination shall be open to Junior  Engineers who were recruited and absorbed in that grade against  the vacancies  of a year, ordinarily not less than five  years prior  to the  year of  announcement of the said examination.  Sub-clause  (4)  of  Appendix  I  to  the Telegraphic Engineering  Service (Group  Posts)  Recruitment Rules, 1981  (1981 Rules,  for short)  which superseded  the 1966  Rules   envisaged  a   qualifying-     cum-competitive examination  for   promotion  to   the  post   of  Assistant Engineers. and  the Note  appended to  sub-cl. (4)  provides that for  a period  of 2 years after the commencement of the 1981  Rules,  the  first  two  examinations  shall  only  be competitive for which the eligibility shall be restricted to only those  officers  who  have  already  qualified  in  the Departmental  Qualifying   Examination   held   before   the commencement of these Rules."      The appellants/Junior  Engineers, who were recruited in the  year   1973,  challenged   in  the   High   Court   the constitutionality of  the Note  appended lo  clause  (4)  of Appendix I to 1981 Rule 5 on the ground that note 4 appended to  clause   I  introduces  discrimination  in  that  Junior Engineers Or  1972 and  prior batches will alone be able, if they had  cleared the  qualifying examination,  to take  the competitive examination which would be held under 1981 Rules and as  only the  competitive examination  was to  be  held, Junior Engineers  of 1973  and subsequent  batches, even  if they have  put in five years of qualifying service, would be

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denied an opportunity to take the examination, and that this is an  invidious manner  of denying  them the opportunity to take the  examination and  thereby  deny  them  equality  of opportunity in  the matter  of promotion. The learned Single Judge held  that the Note to clause (4) of Appendix I to the 1981 Rules  was ultra  vires. On  appeal by  the  respondent Union of  India, the  Division Bench  of the High Court held that the Note was not ultra Vires. 882      Dismissing the appeal by the appellants, the Court, ^      HELD: (I)  By sheer  passage of  time, this  appeal and even the  main petition  have become  infractions.  Even  in service  jurisprudence  the  clock  of  history,  sometimes, cannot be  put back  and  even  if  it  is  found  that  the respondents have  committed an  error  in  implementing  the statutory rules  no relief  can be granted. This is one such case. [885F-G]      (2) If  by 1982,  nearly 4,000 Junior Engineers of pre- 1973 batches  had become  eligible  for  taking  competitive examination, the  department would be perfectly justified in keeping the examination open only to persons who have put in such long  service and  leaving others  to wait for the next examination.  If   for  taking   examination   this   aspect introduces classification,  it  is  based  on  rational  and intelligible differentia  which has  a nexus  to the  object sought to  be achieved.  By the  note, for  a period  of two years  only   pre-1973  Junior  Engineers  who  had  cleared qualifying  examination   were  given   a  chance   to  take competitive    examination.    If    this    introduces    a classification, it  is valid.  It  caters  to  a  well-known situation in  service jurisprudence  that there must be some ratio of  candidates to  vacancies. And  it is based on long experience as  a rational  basis for  classification. Viewed from this  angle, there  is nothing in the policy underlying the note  to rule  (43 as  being  either  discriminatory  or arbitrary or  denying equality of  opportunity in the matter of promotion.  lt had the desired effect of not having glutt of Junior  Engineers taking  examination compared  to  fewer number  of  vacancies.  Length  and  experience  were  given recognition by the note. The promotion can be thus by stages exposing the promotion; l avenue gradually to persons having longer experience.  This seems  to be  the policy underlying the  note   and  therefore  there  is  nothing  improper  or unconstitutional in it.                                                     [888D-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2183 of 1984.      From the  Judgment and  Order dated  28.3.1984  of  the Kerala High Court in W. P. No. 131 of 1982.      .   M. K. Ramamurthi, V. J. Francis and N. M. Popli for the Appellants.          G. D. Gupta, Ms. Halida Khatun, Subba Rao, R. N.      From the  Judgment and  Order dated  28.3.1984  of  the Kerala High Court in W. P. No. 131 of 1982. Poddar, Ms.  Subhadra, Ms.  Alka, B.  B. Tawaklcy  and  Mrs. Urmila Kapur for the Respondents.      The Judgment of the Court Was delivered by            DESAI, J. Chagrined by the failure of the attempt to pressurise  junior engineers  to boycott  the examination and further irritated by  the holding of the examination the

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appellants have knocked at the 883 doors of  this Court,  putting forth  utterly  unsustainable contentions.      Appellants are  junior engineers  in the Telegraph Wing of the  Post &  Telegraph Department.  The  next  avenue  of promotion for  a Junior  Engineer is  the post  of Assistant Engineer.   Promotions    were   governed   by   Telegraphic Engineering Service  (Class Il)  Recruitment Rules,  1966  ( ’1966  Rules’  for  short  ).  By  these  rules  Telegraphic Engineering Service  ( Class Il ) was formed. The Rules were to apply to posts as specified in Clause (I) of the Schedule which specified  the post  of Assistant  Engineer and  other equivalent posts  having allied  designations. Clause (I) in Appendix I  to the  1966 Rules  provides that recruitment to the service  shall be  entirely by promotion on the basis of selection  of   Junior  Engineers   through   a   qualifying departmental  examination.   An  approved   list  shall  he’ prepared  by   a  duly  constituted  Departmental  Promotion Committee, by  selection  from  amongst  the  officials  who qualifying  the  departmental  examination.  Sub-Clause  (4) provided that  the departmental qualifying examination shall be open to Junior Engineers who fulfill, amongst others, the condition specified therein. It reads as under:           "Those  recruited   and  absorbed  in  that  grade      against the  vacancies of  a year, ordinarily, not less      than five  years prior  to the  year of announcement of      the said examination.      These  rules   were  in   force  till   superseded   by Telegraphic Engineering  Service (Group  Posts)  Recruitment Rules, 1981  (’1981 Rules’ for short) enacted in exercise of the power  conferred by  the proviso  to Article  309 of the Constitution with  effect from  May 7, 1981. The controversy centers round the Note appended to sub-clause (4 of Appendix I of 1981 Rules which reads as under:           "40  There  shall  be  normally  one  examination,      consisting  of   two   parts   called   Qualifying-cum-      Competitive Examination  for promotion  to the  Service      and shall  be held  at least once in a calendar year in      the  manner   and  in   accordance  with  the  syllabus      prescribed in Appendix Ill to these rules.           Note: After  the commencement  of these rules, the      first two  examinations shall  only be  competitive for      which the eligibility shall be restricted to only those      officers who have 884      already  qualified   in  the   Departmental  Qualifying      Examination  held  before  the  commencement  of  these      rules."      Appellants were  recruited as  Junior Engineers  in the year 1973.  ln other words, they belong to 1973 batch. Their grievance is  that they have completed five years of service which  conferred   on  them  eligibility  to  appear  at  an examination which  was to  be held  under 1966  Rules.  1966 Rules contemplated only one examination styled as Qualifying Departmental Examination.  1981 Rules  which superseded 1966 Rules provide  for one  examination to  be held in two parts namely Qualifying  Examination and  Competitive Examination. Before one is permitted to take a Competitive Examination he has to  clear Qualifying  Examination. In  short, if one has not qualified  at the Qualifying Examination he can not take the Competitive  Examination. The  appellants’ grievance  is that from  1973 to  1982 or  to be  specific after 1978 when they became  eligible  to  take  Qualifying  Examination  no Qualifying Examination  was held  till May 7, 1981 when 1966

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Rules were  superseded by  1981 Rules  which introduced  the concept of  Competitive Examination  which  could  alone  be taken after in qualifying the Qualifying Examination and for a period of two years as per the Note appended to clause (4) Qualifying Examination was not to be held. The contention is that this  is  an  invidious  manner  of  denying  them  the opportunity to  take the  examination and  thereby deny them equality of opportunity in the matter of promotion.      Appellants accordingly  filed O.P.  No.  5714/81  under Art. 226  of the  Constitution in  the High  Court of Kerala impugning the  constitutionality of  the  Note  appended  to clause (4) of Appendix I to 1981 Rule.A learned Single Judge of the  High Court,  before whom  the petition  came up  for hearing, held that the policy reflected in the Note appended to clause  (4) of  Appendix I to 1981 Rules is irrational as it has no reasonable connection with the needs of the office or the  object sought  to be  attained.A direction was given that the  Note shall  be applied  to the  appellants. By the judgment rendered on March 9, 1982, the learned Judge gave a further direction  that the  department can  either hold the over-due qualifying  examination of  1980 or it can hold the qualifying-cum-competitive examination  but it  must be done forthwith so  that the appellant who were petitioners before the High Court may not be altogether 885 excluded from the examination or examinations to be held.      The respondents  to the  writ petition,  the  Union  of India and  others filed  Writ Appeal  No. 131  of 1982 which came up  before a  Division Bench  of the  High  Court.  The Division Bench  disagreed  with  the  learned  Single  Judge observing that  the Note  to Rule  4 is  not ultra-vires but this was  subjects to  the further  directions given  by the Division  Bench.  Taking  note  of  the  fact  that  in  the meantime,  a   competitive  examination   was  conducted,  a direction was  given that  the result  be published  and the candidates who  are declared  successful in  the examination should be  appointed to 33-1/3% of the vacancies which arose between May 7, 1981 and May 7, 19 82.A further direction was given that  the second  competitive examination contemplated in note  to clause  (4) must be conducted after a qualifying examination as  envisaged  in  1966  and/or  1981  Rules  is conducted within a period of six months from the date of the judgment and  all those  examinees found declared successful at the  qualifying examination  be  permitted  to  take  the competitive examination which must be held within six months from the  date of  the result  of the  earlier examination.A direction was  given that the candidates declared successful at the competitive examination be appointed to 33-1/3% quota of posts in the vacancies that arose between May 7, 1982 and May 7,  1983. There  was some  further directions  which are hardly material for the present purpose. The writ appeal was disposed of  in these  terms. Original petitioners aggrieved by the  decision of Division Bench have filed this appeal by special leave.      By sheer passage of time, this appeal and even the main petition  have   become   infructuous.   Even   in   service jurisprudence the clock of history, sometimes, cannot be put back and  even if  it is  found that  the  respondents  have committed an  error in  implementing the  statutory rules no relief can be granted. This is one such case.      Appellants are  Junior  Engineers  of  the  1973  batch belonging to  the service  styled as Telegraphic Engineering Service (Class  II) re-designated as Telegraphic Engineering Service (Group  Posts). Appellants  as Junior  Engineers can look forward  to become  Assistant Engineers  by  promotion.

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Indisputably, the  recruitment  to  the  post  of  Assistant Engineer in the service is by promotion from 886 the cadre  of Junior Engineers. Under the 1966 Rules, Junior Engineers would  become eligible for promotion on qualifying at a  qualifying examination.  The eligibility criterion for taking the examination was service of five years. Appellants who are  Junior Engineers  of 1973 batch became eligible for taking the examination that may be held in 1978 and onwards. Once  in  November,  1980  and  another  in  January,  1981, programme of  holding  qualifying  examination,  where  1973 recruits could have appeared, was announced but subsequently cancelled and  on May 7, 1981, 1966 Rules were superseded by 1981 Rules.      1981  Rules   envisaged  a   qualifying-cum-competitive examination. Eligibility  criterion for  taking  competitive examination   was   successful   clearance   of   qualifying examination. Therefore,  unless a  qualifying examination is held  one   would  have   no  chance   to  take  competitive examination. For  1973 recruits no qualifying examination is held. In  1981 Rules  by a  note appended  to clause  (4) of Appendix 1,  it was  provided that the next two examinations under 1981  Rules would only be competitive examination. The sum total  of these developments would certainly come in the way of  appeallants  who  are  of  1973  batch  from  taking competitive examination  and unless  they  qualify  at  that examination they  would not be eligible for promotion to the post of Assistant Engineer.      In 1982  a competitive  examination  was  held.  Junior Engineers who  were recruited  prior to  1973  and  who  had qualified at  the qualifying examination held in August 1980 could appear  at this  competitive  examination.  As  Junior Engineers of 1973 and sub" sequent batches were not admitted to qualifying  examination held in 1982 and as no qualifying examination was  held in  November 1980 and January 1981 and as two  examinations under  the 1981  Rules were  only to be competitive examination,  certainly they have been denied an opportunity  to   take  the   examination.  Appellants   who similarly  situated   persons   tried   extra-constitutional methods to   pressurise the powers that be, from holding the qualifying examination  and subsequently  from declaring its results. This  Court had  to  interpose  to  put  down  such pressure tactics  by  a  mandatory  direction  given  at  an interim stage  that the  results of  the examination already held must  be declared.  We are  informed that  the  results have been declared. 887          Mrs. Urmila Kapoor, learned counsel represented one such successful  candidate.  Even  though  the  results  are declared, the  follow-up action of promotion and appointment has  not   been  taken.   We  propose  to  give  appropriate directions in this matter.          In the backdrop of these facts, can it be said that the  appelIants   have  been   victimised  or  subjected  to discriminatory treatment  or have  been denied  equality  of opportunity in  the matter  of pro motion. Appellants do not question the legality of rules which prescribe a qualifying- cum-competitive  examination   for  becoming   eligible  for promotion to the post of Assistant Engineer. Their grievance is  that   note  4   appended   to   clause   I   introduces discrimination In  that Junior  Engineers of  1972 and prior batches  will  alone  be  able,  if  they  had  cleared  the qualifying examination,  to take the competitive examination which would  be held  under  1981  Rules  and  as  only  the competitive examination  was to be held, Junior Engineers of

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1973 and  subsequent batches,  even if they have put in five years of  qualifying service, would be denied an opportunity to i  take the  examination. The learned Single Judge of the High Court  held the  note to  be ultra-vires.  We  find  it difficult to agree with the view of the learned Single Judge in this  behalf. However  the  Division  Bench  has  clearly opined that the note is not ultra-vires.           Mr. Ramamurthy, learned counsel for the appellants contended that  the note  inheres the pernicious tendency of denying equality  of opportunity  in the  matter  of  taking examination because  it permits  the department to provide a bottleneck coming in the way of Junior Engineers of the 1973 batch from taking the competitive examination by not holding the qualifying  examination. We  see nothing  wrong  in  the policy disclosed  by the  note. lt  was pointed  out that by 1982 nearly  7, 000 Junior Engineers had become eligible for taking competitive examination. There was some dispute about the figure but we are prepared to accept the figure as given by Mr.  Ramamurthy,  learned  counsel  that  4,  000  Junior Engineers of  pre- ‘  1973 batch  were qualified  for taking competitive examination.  Mr. Ramamurthy  contended that  if the eligibility  criterion  is  five  years  of  service  DO artificial road-block  could be created so as to come in the way of  such qualified  Junior  Engineers  from  taking  the examination. As  an additional  string to  the bow,  it  was submitted that  if the  purpose  of  holding  a  competitive examination is  to select  best all eligible persons must be permitted to take the examination and ll 888 no artificial  barrier need  to be created. It was submitted that not  holding of the qualifying examination creates such an impermissible  road-block in  the way of Junior Engineers of 1973  and  subsequent  batches  from  taking  competitive examination.      If by  1982, more  than 4, 000 Junior Engineers of pre- 1973 batch  had become  eligible to take the examination and if the accumulated number of vacancies was around 300, it is difficult to  accept the  submission of  Mr. Ramamurthy that everyone who  has just  put in five years of service must be permitted to  take the  examination. It is a known-principle of  service   jurisprudence  that   even  though   mini  mum eligibility criterion  is fixed  enabling one  to  take  the examination  yet  the  examination  can  be  confined  on  a rational basis  to recruits  upto a certain number of years. That constitutes  recognition of  long  experience  and  not permitting some  irate junior  to score a march. If by 1982, nearly 4,  000 Junior  Engineers  of  pre-1973  batches  had become eligible  for  taking  competitive  examination,  the department would  be  perfectly  justified  in  keeping  the examination open  only to  persons who have put in such long service and leaving others to wait for the next examination. If   for   taking   examination   this   aspect   introduces classification, it  is based  on rational  and  intelligible differentia which  has a  nexus to  the object  sought to be achieved. By  the note,  for a period of two years only pre- 1973  Junior  Engineers who  had cleared  qualifying  examination were given a chance to take competitive examination. If this introduces a  classification, it  is valid.  It caters  to a well-known situation  in service  jurisprudence  that  there must be  some ratio  of candidates  to vacancies.  And it is based  on   long  experience   as  a   rational  basis   for classification. Viewed  from this  angle, we find nothing in the policy  underlying the  note to rule (4) as being either discriminatory  or   arbitrary  or   denying   equality   of

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opportunity in  the matter  of promotion. It had the desired effect of  not having  a glutt  of Junior  Engineers  taking examination compared  to fewer  number of  vacancies. Length and experience  were  given  recognition  by  the  note  The promotion can  be thus  by stages  exposing the  promotional avenue gradually  to persons  having longer experience. This seems to  be the  policy underlying  the  note  and  we  see nothing improper or unconstitutional in it.      However the situation has materially changed. More than 4 years  elapsed sine the note has appeared- One examination is 889 a ready  taken. Even  Junior Engineers of 1973 batch have by now put   in  more than 12 years of service. Therefore while upholding the  note and consequently rejection the appeal we propose to  give the  following  directions  to  remove  the irritants:           (i)  Successful  candidates  of  1982  competitive      examination,  results   of  which  have  been  declared      pursuant to the directions of this Court, must be given      promotion as  Assistant Engineer within a period of two      months from today.           (ii) The  next qualifying  examination  permitting all those  who are  eligible under the rules to appear at it must be  held latest  by July  31, 1985  and the  results be declared by September 30, 1985.           (iii) The  next competitive  examination  must  be      held by  December 31,  1985 and the results by declared      by February 28, 1986.           (iv) Consequent  promotions keeping  in  view  the      vacancies available  must be  given within  a period of      three months after the result is declared.      This appeal is disposed of in these terms with no order as to costs M. L. A.                                   Appeal dismissed. 890