D. Basu, J.
1. The prayers in this Petition are--
(a) That the Respondents be restrained from giving effect to the non-statutory Rules of 1952 (Annexure A to the Petition) for recruitment to non-Gazetted posts in the Department of Commercial Intelligence and Statistics under the Union of India (Respondent No. 1) and the order at Annexure H, dated July 19, 1957, modifying the Rule (the reference in the Prayer clause of the Petitioner to Annexure G is wrong); and
(b) That the Respondents be commended to promote the Petitioner to the post of Deputy Superintendent in that Department with effect from the year 1954.
2. The petitioner was initially appointed a Typist and confirmed as such in 1940. Later on, he was allowed to officiate as Lower Division Clerk and eventually the two posts of Typist and Lower Division. Clerk were merged and the petitioner was confirmed in the post of Lower Division Clerk from June 1, 1948 (para. 2 of the affidavit-in-opposition).
3. The petitioner says that he has additional qualification in Stenography and that in view thereof, the petitioner was allowed to officiate occasionally as an Upper Division Assistant as well as a Junior Stenographer, till November, 1951, when he was confirmed as Junior Stenographer.
4. The Petitioner's case is that he was Riven no opportunity to choose between the two lines. Upper Division Assistant and Junior Stenographer, in the matter of promotion and that he accepted promotion as Junior Stenographer in consideration of the fact that the pay of the two posts was the same and that they were classed together, in practice, for further promotion, and upon the belief that his lien on his permanent post of Lower Division Clerk would not be terminated by reason of promotion to the post of Junior Stenographer, He further states that even after his promotion to the latter post, he was, during the period from December, 1951 to January, 1952, allowed to officiate as Upper Division Assistant.
5. The Petitioner complains that his chances of getting promotion to higher posts in the Clerical line have been obviated by the promulgation of the Rules at Annexure A, in 1952. The substance of these Rules is that--
(i) The post of Stenographer has been segregated from that of Upper Division Clerk, though both carry the same Pay-scale of Rs. 80 to 220.
(ii) For promotion to the higher post of Deputy Superintendent at the scale of Rs. 250 to 400, Upper Division Clerks shall be eligible, -- on the recommendation of the Departmental Promotion Committee--but not Stenographers.
(iii) Lower Division Clerks are eligible for promotion as Upper Division Clerks.
6. In 1953, the Petitioner was promoted to officiate as Stenographer and on the strength of that appointment, on April 23, 1954, the Petitioner made a representation to the Director-General of the Department (Respondent No. 3) for being considered for promotion to the post of Deputy Superintendent, but this representation was turned down (Annexure B) on the ground that under the Recruitment Rules at Annexure A, 'Stenographers cannot be considered for promotion to the post of Deputy Superintendent.' The Petitioner eventually appealed to the President of India against the decision at Annexure B and in reply thereto he was informed (Annexure G of October 10, 1956) that the question of amending the Recruitment Rules, so as to ensure that Upper Division Clerks and Stenographers could be treated at par for promotion to the post of Deputy Superintendent was already under consideration and that so long as the Rules were not so amended, the Petitioner's request for promotion could not be entertained.
7. Eventually, in response to his further representation, the Petitioner was informed by the letter at Annexure H, dated July 19, 1957 that the Petitioner has been assigned a position in the Seniority List, on the basis of the following principles--
(a) Stenographers should be considered for promotion to all posts for which Upper Division Assistants are eligible for promotion;
(b) While so ranking with Upper Division Assistants, the seniority dates of Stenographers shall be postponed by one year 'to make up the difference in the minimum educational qualifications between the two posts',
8. Subsequently, some Intermediate posts were created between the post of Upper Division Assistant and Deputy Superintendent and, in 1959, the Petitioner was given an officiating appointment to one such intermediate post, namely, that of a Junior Investigator, on June i, 1959, but even then no retrospective effect was given to such promotion, and his representation for promotion to the post of Deputy Superintendent since 1954 has been turned down finally by the letter at Annexure N, dated October 3, 1966.
9. The Petitioner challenges the validity of the Rules at Annexure A and the order at Annexure H, on various grounds. The Petition is opposed by an affidavit on behalf of all the Respondents filed by Respondent No. 3.
10. I. The principal ground upon which the Petitioner's case has been fought is that the impugned Rules read with Annexure H are discriminatory inasmuch as Clause (b) of the Rules seeks to make a discrimination between Stenographers and Upper Division Assistants, in the matter of seniority while they, in fact, constituted one class.
11. Initially of course, the two categories constituted separate classes, the Petitioner having been recruited as a Typist (para. 2 of the Petition). But subsequently the two categories were merged and the Petitioner was confirmed as a Lower Division Clerk (para. 2 of the Affidavit-in-opposition). It is also admitted in the counter-affidavit that until the promulgation of the new Rules in 1952, 'the two posts' of Junior Stenographer and Upper Division Assistant 'were borne on the same cadre'. Annexure H also places the, two categories together for the purpose of promotion, but a differentiation has been made by Annexure H in the matter of seniority on the ground that there is a difference in the 'minimal educational qualifications between the two posts'. The impugned Rules do, in fact, prescribe, that while a Matriculate may be appointed a Stenographer, and Upper Division Asstt. must possess a University degree.
12 So far as the prospective application of the impugned Rules of Recruitment are concerned, there is little to challenge (nor is the Petitioner interested to do that) since it has been laid down by the Supreme Court that neither Article 14 nor Article 16 debars the State from dividing employees doing the same kind of work into different classes according to superior and inferior qualifications: Kishori v. Union of India, : 44ITR532(SC) , and that when this done, there is no discrimination if in the matter of promotion or seniority as between two classes so formed, preference is shown to those having superior qualifications -- Sham Sunder V. Union of India : (1970)ILLJ6SC .
13. But the question becomes different where retrospective application is sought to be made of the Rules in making such discrimination as between those who were recruited prior to 1952, at a tune when the two categories of Typists and Clerks formed 'the same cadre', and in making inter-class appointments from one post to another, no distinction was made on the ground of difference in qualification. It has been clearly laid down in Roshan Lal v. Union of India, : (1968)ILLJ576SC that once recruits from different sources are integrated into one class, no discrimination can thereafter be made in favour of recruits from one source as against the other in the matter of promotion or other conditions of seniority.
14. In the instant case, it Is admitted in the pleading of the Respondents that even though persons had been recruited as Typists and Clerks separately, the personnel of the two categories were treated as on the same cadre and the posts on the two Lines were interchangeable. Thus, when the Petitioner who had been initially appointed as a Typist was later confirmed as a Lower Division Assistant, the Respondents did not tell him that he would have lower prospects owing to having inferior qualifications. This is patent on reading paragraphs 1-2 of the Petition with the corresponding paragraphs of the counter affidavit. If so, now to make a differentiation between the Stenographers and the Upper Division Assistants on the ground of qualifications with retrospective application to those who had been appointed before the impugned Rules of 1952 were promulgated, would be a contravention of Articles 14 and 16(1).
15. It may be mentioned, further, that the Rules, reproduced at pp. 17-18 of the Petition, do not say that they shall have retrospective effect. To affect the Petitioner by an application of the impugned Rules would both be ultra vires and unconstitutional.
16. II. The substantive plea of the Respondents, however, is that the Petitioner is estopped from claiming any benefits by way of promotion on the Clerical line inasmuch as the Petitioner voluntarily accepted confirmation as a Junior Stenographer on November 1, 1951, while a Clerk senior to him could not get a chance of confirmation as Upper Division Clerk prior to March 1, 1953 (para. 3). But the Petitioner may rightly say that he got a chance on the Stenographer's line because he possessed the technical qualification of a Stenographer which an Upper Division Clerk, as such did not possess.
17. Any sort of estoppel or waiver might operate to the prejudice of the Petitioner only if he had been told that by accepting confirmation as a Stenographer, he would lose all further chance on the Clerical line. In fact, according to the Respondents themselves (para. 3 of the counter-affidavit), no question of giving any such option to the Petitioner at that time arose because 'they were not regarded to be outside cadre'.
This plea must, accordingly, be rejected.
18. III. Another point taken in para. 15 of the counter-affidavit is that the Petitioner cannot be given the benefit of his present post as Investigator with effect from any earlier date than June 1, 1959 because even though he was considered by the Departmental Promotion Committee in 1955 he was not found fit prior to 1959. If that be so, the claim made in para. 23 of the Petition cannot be entertained, but that is no reason why the discriminatory application of the impugned Rules, read with Annexure H to reduce the seniority of the Petitioner by one year in the matter of promotion in the Clerical line should not be struck down.
19. The Petitioner has, of course, claimed that the Court should issue a direction upon the Respondents to promote the Petitioner as a Deputy Superintendent with effect from 1954. No such direction can be given unless the Petitioner succeeds in showing that there is some statutory rule which gives him a right to be promoted. His only right, under Article 16(1), is to be considered for promotion, equally with the Upper Division Clerks, without being affected by the handicap in the matter of seniority in the combined list, which is being introduced by the impugned Rules.
20. It is not the business of this Court to fix the exact post due to him either. That would be done administratively by the Respondents, in compliance with the direction issued by the Court relating to the impugned Rules.
21. I must say, in this context that the alternative claim made by the Petitioner for application of the 'next below rule' or the decision in State of Mysore V. Bellary, : (1966)ILLJ50SC has no application here because there has been no deputation in this case.
22. In the result, the Rule is made absolute in a modified form, as follows, and without any order as to costs. Respondents are restrained from applying the impugned Rules of 1952 to the prejudice of the Petitioner and are directed to consider him for promotion to posts superior to Upper Division Assistants, taking him at par with Upper Division Assistants, in the matter of seniority, --regardless of the discrimination sought to be made by Clause (2) of the letter at Annexure H, dated July 19, 1957.