1. The principal question that arises for determination in this petition is whether in the same cadre it is permissible to provide a method of promotion for some posts, different from the method of promotion for the remaining posts in that cadre. It is contended for the petitioner that such different methods of promotion in the same cadre, are offensive to 'equality guaranteed by Articles 14 and 16 of the Constitution.
2. In the Central Excise Department, up to the year 1959, 50% of the vacancies in the cadre of Upper Division Clerks (hereinafter referred to as U. D. Clerks) were filled by direct recruitment. On the recommendation of the Pay Commission, direct recruitment to the cadre of U. D. Clerks was discontinued and all the posts of U. D. Clerks are filled by promotion of Lower Division Clerks (hereinafter referred to as L. D. Clerks).
3. In 1962 the Government of India decided that 25% of the ports of U. D. Clerks should be set apart for being filled on the basis of competitive examination limited to L. D. Clerks. However, no separate competitive examination is held to determine merit. The performance of L. D. Clerks in the Departmental Examination and in one extra paper in precise writing and drafting, has been made the basis for determining merit.
4. The Central Excise Reorganisation Committee (constituted by the Government of India under the Chairmanship of Mr. A. K. Chanda) stated in its report that in the Central Excise Department a substantial proportion of L. U. Clerks were employed in doing work of non-routine, which should ordinarily be assigned to U. D. Clerks. That Committee opined that it would be unfair to use L. D. Clerks for doing the work of U. D. Clerks without grading them, accordingly, and recommended that adjustments should be made in the strength of L. D. Clerks to conform to the responsibilities envisaged for them by the Fay Commission.
5. Presumably, on the basis of the recommendation of that Committee, the Government of India sanctioned in April 1966 upgrading of about 1000 posts of L,. D. Clerks into U. D, Clerks, and in the Mysore Collectorate the number of posts so upgraded is 66.
6. The posts so upgraded were filled according to the normal method of promotion, namely, 75 % of these posts were filled by promotion of L. D. Clerks on the basis of seniority cum fitness and the remaining 25% by promoting L. D. Clerks on the basis of merit (The result in the Departmental examination in one extra paper in precise writing and drafting). The petitioner was one among the persons so promoted on the basis of merit
7. In the order dated 20-5-1966 (marked Exhibit J) issued by the Collector of Central Excise in Mysore (respondent 1), it was stated that 66 promotees (including the petitioner) would officiate as U. D. Clerks until further orders with effect from 1-6-1966. By his subsequent order dated 29-6-1966 (marked Exhibit K), the Collector reverted the petitioner and 6 others who had been promoted as U. D. Clerks in the merit quota to the posts of L. D. Clerks, with effect from 30-6-1966. Feeling aggrieved by that order, the petitioner has presented this petition assailing such reversion,
8. In the counter-affidavit filed on behalf of the Union of India (respondent 2) and the Collector of Central Excise in Mysore (respondent 1), it has been explained that the reversion pf the petitioner and 6 others under the order. Exhibit K, was due to change in the policy of the Government in regard to the method of promotion to the upgraded posts. At the stage of hearing of this petition, the learned Central Government pleader produced letter F. No. 16/11/66-Ad-III-A dated the 8th June 1966 addressed to the Central Excise Collector, Allahabad, with copies of all other Collectors of Central Excise, for information. In that letter, it is stated that after careful consideration the Government of India decided that there should be no reservation for merit quota candidates in the upgraded posts sanctioned in April 1966 and that all those posts should accordingly be filled by promotion of L. D. Clerks on the basis of seniority-cum-fitness- The stand taken by the respondents is that the reversion of the petitioner, was to give effect to the revised policy in regard to the method of promotion to the additionals.
9. The petitioner and the respondents were permitted to file further affidavits.
10. It has been explained in the additional counter-affidavit filed on behalf of the respondents that the main reason for upgrading over 1000 posts of L. D. Clerks, was to relieve acute stagnation in grade of L. D. Clerks. It is stated that before such upgrading; the number of posts of U. D. Clerks was very limited, that the prospects of L. D. Clerks gaining promotion to the cadre of U. D. Clerks, were very remote and that there were some cases in which L. D. Clerks had worked as such for about 15 years without being promoted to Upper Division. It is also stated that the Government, at first, directed that these upgraded posts should be filled up in accordance with the usual basis, namely 25% by promotion on the basis of merit and 75% by promotion on the basis of seniority-cum-fitness, that Immediately thereafter hundreds of representations were made to the Government of India and the Central Board of Excise and Customs, by several L. D.
Clerks protesting against filling up 25% of these posts otherwise than on the basis of seniority-cum-fitness, and that it was represented that such promotions on the basis of merit, would defeat the very purpose for which such upgraded posts were ordered by the Government
11. It is further stated in the additional counter-affidavit that the matter was examined by the authorities who felt that the grievance of L. D. Clerks was well founded, and that the Government directed that the upgraded posts should be earmarked exclusively for promotion on the basis of seniority-cum-fitness so that the effect of such upgrading should be available to the fullest extent to L. D. Clerks who had been stagnating.
12. Before going to the principal question, namely, the constitutionality of the separate method of promotion to these upgraded posts, it is convenient to dispose of two minor contentions of the petitioner.
13. It was contended by Mr. K. A. Swami, learned counsel for the petitioner, that the reversion of the petitioner from the post of U. D. Clerk to that of L. D. Clerk, was violative of Article 311 of the Constitution. The very 6rder, Exhibit J, by which the petitioner was promoted, expressly stated that the officials promoted would officiate as U. D. Clerks and until further orders. The petitioner's promotion being only officiating and until further orders and not permanent, he had not acquired any right to hold the post of U. D. Clerk and he cannot complaint that his reversion to his substantive post, amounts to reduction in rank within the meaning of Article 311 of the Constitution.
14. It was also contended by Mr. Swami that having once made the promotions to the upgraded posts in accordance with the usual method of promotion, it was not open to the Government to change its policy and reverse these promotions. But Mr. Swami was not able to state on what principle the Government should be denied the competence to change its policy and to make consequential changes in the action taken in pursuance of its earlier policy, when the promotion of the petitioner was only until further orders and he had acquired no other right to hold that promotional post. It is not necessary for the purpose of this case to express any opinion on the question whether the Government can reverse its action after others have acquired rights in consequence of its action before such reversal. In the present case, the petitioner had not acquired any right under the action taken by the authorities in pursuance of its earlier policy regarding promotion, because his promotion was only officiating and untilfurther orders. We are unable to see any impediment for the Government so changing its policy, cancelling or modifying the promotions made on the basis cf its earlier policy and making promotions exclusively on the basis of seniority-cum-fitness.
15. We shall now examine the question whether promotion to the upgraded posts exclusively on the basis of seniority-cum-fitness, departing from the usual method of promotion to the cadre of U. D. Clerks, offends equality guaranteed by the Articles 14 and 16 of the Constitution.
16. As pointed out by the Supreme Court in the General Manager Southern Rly. v. Eangachari, : (1970)IILLJ289SC , Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof and it gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be reasonable classification of the employees for the purpose of appointment or promotion.
17. The question really is whether these upgraded posts can be reasonably classified into a separate class distinct from the rest of the posts in the cadre of U. D. Clerks, for the purpose of the method of promotion to those posts (from the cadre of L. D. Clerks). While Mr. Swami contended that such classification is not a reasonable classification, the learned Central Government pleader contended that upgraded posts form a separate class and that such classification is a reasonable one.
18. It was argued by Mr. Swami that there is nothing to distinguish these upgraded posts of U. D. Clerks from the rest of the posts in that grade, that officials in the upgraded posts as well as those in the rest of the posts of U. D. Clerks, perform the same duties and functions, have the same pay scales and other conditions of service, and that there is no intelligible differentia between the two classes having any reasonable relation to the object of the Government's action.
19. The learned Central Government Pleader argued that even though the duties and functions and the pay scales and other conditions of service of these two categories of posts in the cadre of U. D. Clerks, are the same, the upgraded posts form a separate class distinct from the rest of those posts, in view of the circumstances in which such upgraded posts came into existence and the object for which such posts were created. It was also argued by the learned Central Government Pleader that as upgrading of these posts was with the express object of relieving stagnation among L. D. Clerks who have put in long service, itis permissible for the authorities to adopt a different method of promotion to achieve the object of such upgrading of posts and that any differentiation in the method of promotion to those posts, would be reasonable having regard to the purpose for which those posts were upgraded.
20. In support of their rival contentions, learned counsel cited some decisions. We shall briefly advert to them.
21. In Jaisinghani v. Union of India, : 65ITR34(SC) , the constitutionality of the rule for determination of seniority as between direct recruits and promotees to the posts of Income-tax Officer, Grade II, came up for consideration. Clause (iii) of that rule provides that officers promoted in accordance with the recommendation of the Departmental promotion committee before the next meeting of that committee, shall be senior to all direct recruits appointed on the results of examination held by the Union Public Service Commission during the calendar year in which such Committee met and tha previous years. Clause (iv) of that rule provides, inter alia, that notwithstanding anything contained in Clause (iii) a Class (II) Income-tax Officer subsequently appointed to Class I on the results of a competitive examination conducted by the Federal Public Service Commission, shall, after he has passed the Departmental Examination held before his appointment to Class I service, be deemed to be a promotee for the purpose of seniority.
22. It was contended on behalf of the direct recruits that the said rule was based on an unjustifiable classification between direct recruits and promotees after they had, entered into Class I, Grade II service, there was a discrimination between officers of Class I, Grade II after their recruitment and that the actual working of the rule kept on pushing down direct recruits and postponing their chances of promotion to higher posts. Repelling that contention, the Supreme Court held that classification made in that seniority rule, is a reasonable classification inasmuch as the object of such classification is filling the higher ranks in the Income-tax Service by experienced officers possessing not only high degree of ability but also first rate experience.
23. We think the question that arises in the present case, is entirely different from that in Jaisinghani's case, : 65ITR34(SC) . There, the question was regarding seniority as between officials drawn from two sources, namely, direct recruits and promotees. In the present case, the question is whether for the purpose of promotion from the same cadre, namely, L. D. Clerks, to the cadre of U. D. Clerks, there can be a classificationof posts of U. D. Clerks into a general category and a special category, namely. upgraded posts.
24. In Mervyn Continho v. Collector of Customs, : (1967)ILLJ749SC and Rosbanlal Tandon v. Union of India, : (1968)ILLJ576SC . the question that arose for decision before the Supreme Court, was as follows:-- Where for a particular grade of service, recruitment is made from two sources, direct recruitment and promotion, whether it is permissible to give preferential treatment in favour of recruits from one source as against the recruits from the other source, for the purpose of further promotion from that grade. The Supreme Court held that once direct recruits and promotees are absorbed in one cadre; they form one class and they cannot be discriminated for the purpose of further promotion to the higher grade.
25. But in the present case there are no two sources of recruitment to the cadre of L. D. Clerks and there is no question of preference to persons recruited from one source, for the purpose of promotion to the cadre of U. D. Clerks. Hence the aforesaid two decisions of the Supreme Court are not of any assistance for the present case.
26. In Govind Pattatray v. Chief Controller of Imports and Exports, : (1967)ILLJ691SC , the question that arose was whether the rule that 75 per cent of the posts in a particular cadre should be filled by direct recruitment and the remaining 25 per cent, by promotion from the lower cadre, is discriminatory and violative of Articles 14 and 16. Though that question is different from the question that arises in the present case, the following statement of law by the Supreme Court in that case, will be of guidance in the present case also:--
'The purpose of equality in the matter of promotion can be predicted only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two sources, and the said differences have a reasonable relation to the nature of the office or offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification. There can be cases where the differences between the two groups of recruits may not be sufficient to give any preferential treatment to one against the. other in the matter of promotions, and, in that event a court may hold that there is no reasonable nexus between the differences and the recruitment. In short, whether there is a reasonable classification or not depends upon the facts of each case and the circumstances obtaining at the time the recruitment is made. Further when a State makes a classification between two sources of recruitment. unless the classification is unjust on the face of it, the onus lies upon the party attacking the classification to show by placing the necessary material before the court that the said classification is un-, reasonable and violative of Article 16 of' the Constitution.'
27. As stated by the Supreme Court in Ramakrishna Dalmia v. Justice Teridol-kar, : 1SCR279 , in order, to pass the test of permissible classification two conditions must be fulfilled namely (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things grouped together from those left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute (or executive action) in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a reasonable nexus between the basis of classification and the object of the Act (or executive action) in question.
28. Though Mr. Swami disputed the statement in the additional counter-affidavit of the respondents that the upgrading of these posts was in order to relieve stagnation, there is no reason to doubt the truth of that statement. Though the nature of the duties and functions and the pay scales and other conditions of service of the incumbents of these upgraded posts of U. D. Clerks, are the same as those of rest of the U. D. Clerks the fact that these upgraded posts were intended to relieve stagnation in the cadre of L. D. Clerks, is, in our opinion, sufficient to differentiate these upgraded posts from the rest of the posts in the cadre of U. D, Clerks.
29. The normal method of promotion, namely, filling 25 per cent of the posts of U. D. Clerks on the basis of merit and 75 per cent on the basis of seniority-cum-fitness, will enable even comparatively junior L. D. Clerks whose performance in the examination is relatively high, to get promotions and they do not suffer from stagnation. Stagnation is. a condition peculiar to those L. D. Clerks whose performance in such examination, is not comparatively high and have to remain as L. D. Clerks until they get promotions on the basis of seniority-cum-fitness.
30. If the normal method of promotion should be applied for filling these upgraded posts also, the object of relieving stagnation of L. D. Clerks, who have put in long service, will not be achieved to the extent to which promotions are based on merit only.
31. The provisions that all the upgraded posts should be filled by promotion on the basis of only seniority-cum-fitness, has a reasonable relation to the object of upgrading certain number of posts, such object being to relieve stagnation of L. D. Clerks. Hence, these upgraded posts which serve a particular purpose, form a separate class based on a reasonable classification. When a specified number of posts are created for the particular purpose of relieving stagnation in the lower cadre, and to achieve that purpose, it is considered necessary that promotion to those posts should be based on seniority-cum-fitness only, such method of promotion to those posts, cannot be said to violate equality guaranteed by Articles 14 and 16 of the Constitution.
32. The question can be looked at from another angle. While promotions to the upgraded posts are on the basis of only seniority-cum-fitness, promotions to the rest of the posts in the cadre of U. D. Clerk continue to be on the basis of merit to the extent of 25% and on the basis of seniority-cum-fitness to the extent of 75%. The net effect of applying the criterion of only seniority-cum-fitness for promotion to the upgraded posts, is to reduce the overall proportion of promotions to the cadre of U. D. Clerks on the basis of merit and to increase the overall proportion of promotions on the basis of seniority-cum-fitness. There is nothing unreasonable or discriminatory in reducing the proportion of promotions to the cadre of U. D. Clerks on the basis of only merit and increasing the proportion of promotions on the basis of seniority-cum-fitness. In fact, in many cadres in the lower ranks of services, all promotions are only on the basis of seniority-cum-fitness.
33. All the contentions of the petitioner fail and we dismiss this petition. But in the circumstances of the case we make no order as to costs.
34. Petition dismissed.