G.M. Lodha, J.
1. The petitioner was appointed as Sub-Inspector of Police on 6.1.1954. Though he was recorded as Sub-Inspector of Police, he worked as Prosecuting Sub-Inspector for most of the time between 1954 to 1974.
2. In 1975, the Rajasthan Prosecution State and Subordinate Service (Initial Constitution and Emergency Recruitment) Rules, 1975 were promulgated for encadring the Prosecuting Inspectors and Prosecuting Sub-Inspectors in the service. This became necessary on account of the New Criminal Procedure Code. The petitioner was screened and was treated as Assistant Public Prosecutor Grade II substantively from 1.4.1974 under the new Rules. Thereafter the Rajasthan Prosecution Service Rules, 1978 were promulgated providing for promotion to Assistant Public Prosecutor Gr. I from Grade II. The qualifications are prescribed in Column-2. This qualification requires degree of Law from the University established by Law in India.
3. Since the petitioner is not a Law Graduate he is aggrieved by this condition, which according to him has retarded his avenues of promotion and created discrimination.
4. Mr. Singhvi, learned Counsel for the petitioner submitted that the introduction by amendment of Degree of Law for future promotion is discriminatory because the petitioner has started service as Public Prosecutor and gained experience. It is further submitted that there is no element of any higher educational ability required for the purpose of conducting cases as Assistant Public Prosecutor Grade I. According to him a person, who is law graduate by itself does not get better equipped for working as Assistant Public Prosecutor Grade I and this touch stone of having degree in law for promotion is absolutely artificial and irrational since it has got no nexus with the objects sought to be achieved, namely, promotion of the person to the post of Assistant Public Prosecutor Grade 1, who are capable of conducting cases in the court of law. Mr Singhvi. therefore invoked Articles 14 and 16 of the Constitution of India and prays that this Court should declare Rule 9(2) read with schedule appended to the Rules of 1978 as unconstitutional, in so for as it prescribes the qualification of law graduate.
5. Reliance is placed on the judgment in H.C. Sharma v. Delhi Municipal Corporation : (1974)ILLJ121SC and para Nos. 56 and 57 were read out to me by Mr. Singhvi in order to substantiate his submission. A careful perusal of these paragraphs shows that what Mr. Tarkunde has prayed was that to declare the petitioner Graduate Engineers as a separate category amongst Junior engineers land give them equal quota like the Diploma holders Junior Engineers out of the 50% quota for promotion as Assistant Engineers. While rejecting this the Supreme Court held that by issuing a writ this Court would not carve out two classes in the same category of Junior Engineers. They do the same kind of work and bear the same responsibilities. Reliance was placed on S.S. Pitwardhan v. State of Maharashtra : 3SCR775 . In that case the question was of seniority of the promotes & direct recruits the formula to give direct recruit benefit of one year period of training & other year's period of probation, but denies the name to the promotes in respect of their experience. It was held that there was no intelligible ground for this differentiation bearing thus with efficiency in public services.
6. Mr. Singhvi submitted that this decision would show that the earlier judgment of the Hon'ble Supreme Court in State of Jammu & Kashmir v. Triloki Nath Khosa and Ors. : (1974)ILLJ121SC , where the classification of Assistant Engineers between diploma holders and degree-holders for promotion as Executive Engineers was up-held, has been departed from.
7. In Triloki Nath's case (supra) the Supreme Court held as under:
The classification of Assistant Engineers into Degree holders and Diploma holders could not be held to rest on any unreal or unreasonable basis. The classification was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly correlated to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment.
It has been further held by the Supreme court as under:
Classification in service title founded on educational qualification for promotion to the post of an Executive Engineer Presumption of Constitutionality - Burden of proof to justify the classification.
Unless the classification is unjust on the face of it, the burden is on the petitioners lo set out facts necessary to sustain the plea of discrimination and to adduce cogent and convincing evidence to prove those facts, for there is a presumption that every factor which is relevant or material has been taken into account in formulating the classification Thus, it is no part of the respondents' (State's) burden to justify the classification or to establish its constitutionality. Formal education may not always produce excellence but a classification founded on variant educational qualifications is, for purposes of promotion to the post of an Executive Engineer, to s y the least, not unjust on the face of it and the onus therefore, cannot shift from where it originally Jay.
8. In my view the decision of Triloki Nath's case squarely applies in the facts of the present case in as much as, there a similar classification based on academic qualifications was sought to be struck down being violative of Articles 14 and 16 of the Constitution.
9. It was held in terms that academic qualification can form the basis of classification in services and in matters of promotion.
10. The judgment of Triloki Math's case is of 5 Judges Constitutional bench and directly applies in the present case.
11. The judgment of H.C. Sharma's case (Supra) is of two Hon'ble Judges, though later, but it has got no direct hearing because in this case a prayer was made to the court that by issue of a writ preference will be given to the academic qualifications, I am therefore, of the view that H.C Sharma's case has got no bear ing in the present dispute and debate.
12. On an objective consideration of the issues involved in the case I am further of the opinion that function of a Public Prosecutor certainly involves the requirement of one being well-versed in various branches of law, particularly Cr.P.C. the Indian Penal Code, Evidence Act and various other Laws concerning and relation to the criminal practice. In such circumstances as a Law graduate is certainly better equiped on the academic fide and his learning and study of law is bound to have a direct nexus with the object of efficient functioning and performing of duties of Public Prosecutor in a Court of Law.
13. The result of this, is that the writ petition fails and is here by dismissed.