S.M.N. Raina, J.
1. This is a petition under Article 226 of the Constitution.
2. The petitioner is a Veterinary Assistant Surgeon in the service of the Government of Madhya Pradesh and at present is posted as Inspector, Live Stock, Gwalior. On 31-12-1966 the State Government framed certain Rules under Article 309 of the Constitution for recruitment of the M.P. Veterinary (Gazetted) Service, vide Annexure 1. Rule 6 of the Rules provides for recruitment to service, by direct recruitment by selection, as well as by promotion. Rule 8 lays down the conditions of eligibility of direct recruits. Sub-clause (i) of Clause (c) of Sub-rule (i) of Rule 8 provides that permanent Government servants should not be more than 30 years of age. Sub-clause (ii) of the said clause on the other hand provides that temporary Government servants should not be more than 35 years of age. The contention of the petitioner is that this discrimination between the permanent and temporary Government servants in respect of age of eligibility offends Articles 14 and 16 of the Constitution. In 1967 the Government advertised certain gazetted posts, vide Annexure III. But his claim to the said post was rejected in view of the rule referred to above. He has, therefore, filed this petition praying that the rules may be struck down and also the action taken thereunder.
3. The petitioner urged certain other grievances in this petition but it is not necessary to consider them as they were not pressed before us.
4. The main point for consideration, therefore, is whether Rule 8 makes unlawful discrimination between the permanent and temporary employees and as such offends Articles 14 and 16 of the Constitution. Clause (i) of Article 16 of the Constitution provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. This Article guarantees equality of opportunity in the matters of public employment, just as Article 14 guarantees general right of equality before the law. The equality guaranteed by these Articles is not, however, an absolute equality Classification is permissible provided it fulfils two conditions, namely, (i) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question. [Vide Constitution of India by Seervai, at p. 197].
5. In State of Rajasthan v. Rao Manoharsinghji : 1SCR996 , it was held that an obvious discrimination can be justified only on the basis of a proper classification and just relation to the things in respect of which it is proposed.
6. In Gangaram v. Union of India, 1970 Ser. L.R. 755, their Lordships of the Supreme Court made the following observations:
In applying the wide language of Articles 14 and 16 to concrete cases doctrinaire approach should be avoided and the matter considered in a practical way, of course, without whittling down the equality clauses. The classification, in order to be outside the vice of inequality, must, however, be founded on an intelligible differentia which on rational grounds distinguishes persons grouped together from those left out. The differentia which warrants a classification must be real and substantial and must bear a just and reasonable relation to the object sought to be achieved. If this test is satisfied then the classification cannot be hit by the vice of inequality.
We may now proceed to consider the validity pf the rules in question in the light of the principles laid down by their Lordships in the aforesaid decisions.
7. The differentia between a temporary and permanent employee is too obvious, but the question is whether it has rational relation to the object sought to be achieved by the rule. So far as recruitment from services other than the veterinary service of the State is concerned there appears to be some principle in making this discrimination between a permanent and a temporary employee. The temporary employees have no security of tenure and, therefore, should be permitted to avail of this opportunity to recruitment to the Gazetted service even up to the age of 35 years if they are suitable for such post. In the case of permanent Government employees of other services it may be considered proper not to allow them to change their line after they have been absorbed in service on a permanent basis beyond the age of 30 both in their own interest as well as in the interest of the department in which they are working. But the discrimination so fat as employees of veterinary department are concerned appears to be wholly unjustified and arbitrary.
8. If direct recruitment had not been open to the employees of the subordinate veterinary service and they could seek admission to the Gazetted service only by promotion, the position would have been different. But that is not so. This was not disputed before us, and it was also conceded that some appointments have been made in the Gazetted service by direct recruitment from the subordinate ranks. It looks somewhat ridiculous that the permanent employees of the veterinary department should be debarred from seeking appointments on the Gazetted posts after the age of 30 by direct recruitment while it is open to a temporary employee of the same rank or cadre even upto the age of 35. There appears to be no justification whatsoever for such a discrimination and we fail to see how it can be helpful in achieving the object in view.
9. A temporary or officiating Government servant ordinarily expects that he would be confirmed by putting in good work. Confirmation ordinarily enhances chances of promotion to the higher cadre. But under the rule in question an employee on confirmation suffers a disadvantage vis-a-vis a temporary employee in respect of recruitment to the Gazetted service. If a temporary employee of the veterinary service up to the age of 35 is considered eligible for recruitment there is no reason why confirmed employees of the same department should not be eligible for direct recruitment to the Gazetted service up to the same age. There is no point in debarring permanent Government employees of the age group from 30 to 35 years in the veterinary service from recruitment to the Gazetted service, while keeping the door open for temporary employees of the same category, even though the confirmed employees may be better and more suitable candidates in many respects. It appears to us that by giving an equal chance to a confirmed employee to the Gazetted service the department will be ultimately benefited. Moreover, even a temporary employee would not be at a disadvantage because he can be absorbed in the vacancy caused by the absorption of the permanent employee in the Gazetted rank.
10. In paragraph 6 of the return filed on behalf of the State the reasons for making the discrimination have been stated. All these reasons may be good and valid so far as recruitment of employees of other departments is concerned. As pointed out above it appears to be highly improper and unjust so far as the employees of the veterinary service are concerned. As has been observed by their Lordships of the Supreme Court in Shyam Sunder v. Union of India : (1970)ILLJ6SC , equality of opportunity in matters of employment under Article 16(1) means equality as between members of the same class of employees. The members of the subordinate veterinary service belong to the same class and there is no justification for making this discrimination between permanent and temporary employees.
11. Thus on a careful consideration we find that the discrimination between temporary and permanent employees so far as veterinary service is concerned is unjustified and offends Article 16 of the Constitution and as such Rule 8 is liable to be struck down partially to this extent. We would not, however, strike down any action that may have been taken under the said rule so far because this petition has been filed long after the rule was framed. In fact the learned Counsel for the petitioner frankly conceded that he is not in a position to press for any such action.
12. The petition is, therefore, partly allowed and Sub-clause (i) of Clause (C) of Sub-rule (i) of Rule 8 of the M. P. Veterinary Service (Gazetted) Recruitment Rules, 1966, which provides that a permanent Government servant should not be more than 30 years of age is hereby struck down as illegal being repugnant to Article 16 of the Constitution in so far as it affects members of the veterinary service. It would be open to the Government to reframe the rule so as to bring it in conformity with the said Article. We make no order as to costs in the circumstances of the case. The security amount deposited by the petitioner shall be refunded to him.