Mufti Baha-ud-Din Farooqi, J.
1. This appeal raises question as regards the validity of (i) Rule 10 (IIB)(i) of Jammu and Kashmir Civil Service (Revised Pay Rules) 1968 promulgated by the Governor vide Notification SRQ 87 dated 27-2-1968 in so far as it provides that Q.B. (Qualification Bar) at Rupees 610 in the scale of 300-30-450-EB-35-610-QB-35-750 admissible to assistant engineers will not be crossed by the assistant engineers with diploma course; and, (ii) Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules 1970 sanctioned by the Governor vide Notification SRO 492 dated 12-10-1970 in so far as they bar promotion of diploma holder assistant engineers to the category of executive engineers and those above in the line set out in the schedule to the said rules.
2. The facts necessary for the of this appeal are these: The appellants are serving as assistant engineers in the various branches of Engineering Service of the State. They are all diploma holders. Their appointments were made by promotion from the subordinate engineering services between the years 1961 and 1966 in pursuance of the rules then in force styled as 'Rules relating to the recruitment of the (Gazetted) services' which were sanctioned under Government Order No. 1328-C of 1939. These rules provided for twin modes of recruitment to the category of assistant engineers ; one, by direct appointment, in which case the minimum qualification required was degree in engineering; and the other, by promotion, in which case the minimum qualification required was degree or diploma in engineering in addition to service experience indicated in the said rules. These assistant engineers were eligible for promotion to the next higher category of divisional engineers as the executive engineers were then called. The rule of promotion as provided in the said rules was merit, ability and previous record, seniority being considered only in case of equality of merit, ability and excellence of record. The scale of pay admissible to the assistant engineers immediately before 1962 was Rs. 300-20-500. In 1962 a general revision of pay took place when the scale of pay of assistant engineers was also revised in pursuance of the rules known as 'J. & K. Civil Services (Revised Pay) Rules, 1962' sanctioned vide Notification SRO 160 dated 6-8-1962. Rule 12 of the said rules divided the assistant engineers into two grades namely Grade 1 and Grade II. Those appointed prior to 1-8-1960 were placed in Grade I and those appointed subsequently were placed in Grade 11, irrespective of the fact whether the appointments were made direct or by promotion or whether the incumbents were degree holders or diploma holders. The scale of pay for Grade I was Rs, 300-700 and that for Grade II was Rs. 250-600. Those placed in Grade II were entitled to go in Grade 1 after two years completed service subject to the availability of vacancy. This continued to be so when a further revision of pay was effected in the year 1968 by virtue of the J. & K. Civil Service Pay Rules, 1968 sanctioned-vide SRO 87 dated 27-2-1968. Rule 10 (11B)(i) of these 4 rules provided as under :
Assistant engineers will be entitled to the revised scale of Rs. 300-30-540-EB-35-610 QB-35750: Provided that the QB at Rs. 610 will not be crossed by assistant engineers with diploma course.
Then came the J. & K. Engineering (Gazetted) 4 Service Recruitment Rules, 1970. These rules provided for appointments to the Gazetted posts in the various branches of the engineering service and superseded the old rules on the subject. By Rule(3)(f) 'promotion' was defined as meaning promotion from one class, category or grade to another class, category or grade on the basis of merit a ad efficiency, seniority being considered only when the merit was equal. In the schedule to the rules the method of recruitment to the category of executive engineers and those above was Indicated to be by promotion but as respects promotion to the category of executive engineers it was further provided that the same shall be made from the category of assistant engineers from amongst the persons possessing degree in engineering or AME Sections (A) and (B) and thus diploma holder assistant engineers were excluded from promotion as executive engineers or above. The appellants filed a writ petition challenging the validity of the provisions as aforesaid, which f placed a bar on their crossing the scale of pay admissible to assistant engineers at Rs. 610 as also cm their promotion to the category of executive engineers aid next higher categories on the ground that the same were violative of Articles 14 and 16 of the Indian Constitution, The writ petition was heard by a learned single Judge of this Court, Jaswant Singh, J. who dismissed the petition holding that the conditions of service could be changed by the Governor unilaterally and that the provisions made did not suffer from the vice of inequality and could not, therefore, be assailed as being violative of Article 14 or 16 of the Constitution. The petitioners have come in appeal before us under Letters Patent.
3. Before us it was argued by Mr. Bhasin, appearing for the appellants, that the conditions of service could no doubt be changed by the Governor unilaterally but not so in violation of Articles 14 or 16 of the Constitution of India as in the present case. The only question that, therefore, we are concerned with in this appeal is whether the restrictions contained in-the provisions, as aforesaid, are justifiable under the said Articles.
4. The scope and content of Articles 14 or 16 are no longer in doubt. The law is well-settled that Article 14 enacts the general rule of equality of which Article 16 is a specie limited in its application to matters relating to public employment. The rule of equality contained in Article 14 is subject to the well-known doctrine of classification, according to which persons or things may be classified on rational distinction relevant to the particular subject dealt with. Once such classification Is made persons or things grouped together become similarly circumstanced and form one class in spite of initial disparities, if any. Thereafter they cannot be subject to any discrimination inter se. They must be treated alike. These principles apply with equal force in the interpretation of Article 16(1) which guarantees to every citizen equality of opportunity in matters of public employment. These matters bring within their fold all the matters of service from the initial appointment upto termination including pay and promotion. Accordingly it is open to the State to make a reasonable classification of its employees. Such classification may even of respects employees doing the same work be based sometimes on qualification relevant thereto. But where no such distinction ii maintained and employees are grouped together and integrated into one unit without reference to qualification, they become one class in spite of initial disparity about qualification and no discrimination can thereafter be made between them inter se on the basis of qualification in the matter of pay, promotion and other conditions of service. It is on these principles that the impugned, provisions have to be tested in the instant case.
5. I will first take up Rule 10(HB)(i) of the J. & K. Civil Services Revised Pay Rules, 1968. This Rule says as under:
Assistant engineers will be entitled to the revised scale of Rs. 300-30-540-EB-35-610-QB-35-750 : Provided that the QB at Rs. 610 will not be crossed by assistant engineers with diploma course.
6. On facts stated above it is clear that under the Recruitment Rules of 1939 there was one class of assistant engineers with one scale of pay. By the revised Pay Rules of 1962 the assistant engineers were divided into two grades -Grade I in the scale of Rs. 300-700 consisting of persons appointed as assistant engineers prior to 1-8-1960 and Grade II in the scale of Rs. 250-600 consisting of persons appointed as assistant engineers after 1-8-1960. This classification was made without reference to the fact whether the incumbents were those recruited direct or by promotion or whether they were degree holders or diploma holders. No question has been raised as regards the validity and reasonableness of this classification which we, therefore, assume to be valid and reasonable. In terms thereof assistant engineers like the appellants appointed after 1-8-1960, whether by promotion or by direct recruitment, be they diploma holders or degree holders, were' integrated into one category of Grade II and allowed a common scale of pay. On the principles set out above they could not subsequently be discriminated inter se as regards the provision of pay on the ground of qualification. To the extent, therefore, the revised Pay Rules of 1968 created a distinction between the existing diploma holder assistant engineers and degree holder assistant engineers appointed before 1st November, 1967, when the said rules became effective, it was clearly discriminatory. In other words their retrospective operation was vitiated by discrimination. So far as their prospective operation in the sense of their application to diploma holders appointed as assistant engineers after 1-11-1967 is concerned, the question does not arise in the instant case and we refrain from expressing any-,, opinion on that question. In that view Rule 10 (IIB)(i) is not valid in so far as it imposes a qualification bar as respects pay in its application to diploma holder assistant engineers like the appellants appointed before 1-11-1967. To this extent the rule must be held as contravening Arts, 14 and 46 of the Constitution.
7. I will next consider the validity of J. & K. Engineers (Gazetted) Service Recruitment Rules, 1970 in so far as they bar promotion of diploma holder assistant engineers to the category of executive engineers and those above in the line set out in the Schedule of the said rules. Before these rules came into force, promotion to the category of executive engineers was governed by the Recruitment Rules of 1939 according to which assistant engineers, be they diploma holders or degree holders, were eligible for promotion to the category of executive engineers the rule of, promotion being merit, ability and previous record, seniority being considered only in case of equality of merit, ability and excellence of record. The Recruitment Rules, 1970 repeated this rule of promotion by Rule 3 (f) thereof which defined 'promotion' as meaning promotion from one class, category or grade to another class, category or grade on the basis of merit and efficiency, seniority T being considered only when merit and efficiency were equal. This rule was, however, amplified further in the Schedule to the said rules which provided that the promotion of assistant engineers to the category of executive engineers shall be made from amongst persons possessing Bachelors degree in Engineering or AMIE Sections (A) and (B) in the subject in which appointment is to be made. It is this provision in the schedule which has been assailed before us as contravening Articles 14 or 16.
8. The provision, as aforesaid, applies equally to assistant engineers whether appointed before or after the Recruitment Rules of 1970 came into force. So far as its application to the assistant engineers appointed after the rules came into force is concerned, no question arises in this case. We refrain from expressing any opinion thereon. What we are concerned with in the instant case is whether these provisions could be made applicable to assistant engineers like the appellants appointed before 1970, when the said rules came into force. In other words what we have to see is whether their retrospective application is sustainable under the Constitution. In this connection it is noticeable that before the Recruitment Rules of 1970 came into force the promotion to the category of executive engineers was governed by the Recruitment Rules of 1939 According to which assistant engineers, be they diploma holders or degree holders, were eligible for promotion en bloc to the said category, the rule of promotion being merit, ability and previous records. For purposes of i promotion they, therefore, constituted one single category, the rule of promotion generally applicable to them being merit, ability and previous record. On the principles set out above the degree holders amongst them could not subsequently in the rules of 1970 be chosen for preferential treatment as against diploma holders. Assistant engineers are allowed facility for promotion while simultaneously denying the same to diploma holders. That being so, the retrospective operation of the Recruitment Rules, 1970 in so far as they impose qualification bar for promotion as respects diploma holder assistant engineers like the appellants appointed before the said rules came into force is, therefore, clearly violative of Articles 14 or 16 of the Constitution.
9. Let me now advert to the decisions relied upon on question by the learned single Judge as also those referred to by the learned Counsel for the parties before us.
10. The first case relied upon by the learned single Judge is State of Mysore v. P. Narsinga Rao : (1968)IILLJ120SC .
11. The facts of this case were that as a result of reorganisation of States in 1956 a part of the territory of the erstwhile Hyderabad State became part of the new Mysore State. The respondent who was serving as a tracer in the Hyderabad State was allotted to the new State which received some more tracers from the Bombay State. In the old Mysore State there were two grades of tracers, viz., non-matriculate tracers on the pay scale of Rs. 30-50 and matriculate tracers on the pay scale of Rs. 40-60. The new Mysore State reorganized the tracers into two grades, one consisting of matriculate tracers whose scale of pay was fixed at Rs. 50-120 and the other of non-matriculates at Rs, 40-80. The respondent who was a non-matriculate was given the option to accept the new scale of pay, i.e., Rs. 40-80 or remain in the old Hyderabad scale of Rs. 65-90. He refused to exercise the option and claimed that the division of tracers into matriculates and non-matriculates was discriminatory and that he was entitled to the grade of Rs. 50-120. His ground of attack was that the creation of two pay scales of tracers who were doing the same kind of work amounted to discrimination and that the general educational qualification had no bearing in the matter. The Supreme Court held that the general education was relevant even in the technical branches of public service and the classification could be made on this ground for grant of higher scale of pay as between persons possessing such education and those not possessing the same even if they were doing the same work.
12. The classification in this case into matriculate tracers and non-matriculate tracers with two different scales of pay was made prospectively and not retrospectively in the sense that matriculate and non-matriculate tracers were never before the impugned rules came into force integrated into one group and allowed a common scale of pay and then segregated into two groups and allowed different scales of pay as in the present case in which (sic) before the impugned rules of 1968 came into force, diploma holder assistant engineers and degree holder assistant engineers appointed after 1960 were all grouped together and placed in Grade II in a common scale of pay which was subsequently varied, diploma holder assistant engineers being chosen for one grade and the degree holder assistant engineers for the other. The decision in this case has, therefore, no bearing on the present case.
13. The next case relied upon by him is C.A. Rajendran v. Union of India : (1968)IILLJ407SC ,
14. In this case the Supreme Court held that the equality of opportunity guaranteed by Article 16(i) means equality as between the members of same class of employees and not equality between members of separate independent classes. This is precisely what is the case of the appellants. They say that before the impugned provisions for pay and promotion came into force the diploma holders like them and the degree holders appointed as assistant engineers after 1-8-1960 constituted one class of employees with a common scale of pay and equal facility for promotion and could not, therefore, be discriminated against subsequently for these purposes by virtue of these provisions. This authority, therefore, helps the appellants.
15. The learned single Judge has then relied upon K. Rama Reddy v. Mysore Public Service Commission, 1969 Serv. LR. 702 Mys. This was a case in which recruitment was proposed to be made of District Educational Officers by direct recruitment. The rules provided for certain minimum qualifications for direct recruitment and also provided that the recruitment shall be on the basis of selection after interview. A question was raised that the interview was the only test prescribed for the selection and as such the selection authority was not justified to call for interview some only of the applicants and reject others without calling them for interview. In this context the Mysore High Court held that the prescription of minimum qualifications was perfectly constitutional. This was obviously a case of direct recruitment and not of promotion as in the present case.
16. The last case relied upon by the learned single Judge is Ganga Ram v. Union of India : 3SCR481 .
17. The decision in this case lays down that Article 16 does not prohibit the prescription of reasonable rules for selection and promotion applicable to all the members of a classified group. On this principle diploma holder assistant engineers could not be singled out for differential treatment for promotion in the Recruitment Rules of 1970 when together with the degree holder assistant engineers they formed one single class of assistant engineer before the said rules came into force. This case, therefore, really helps the appellants.
18. The learned Counsel for the State too relied upon the cases cited above but as already pointed out these do not really help the State. In addition, however, he also relied upon the decision reported as State of Punjab v. Joginder Singh : AIR1963SC913 .
19. The principle laid down in this decision is that Article 14 does not prevent the State from constituting two services consisting of employees doing the same work but with different scales of pay or subject to different conditions of service and where such distinct services have been constituted there is no question of inter se seniority between members of the two classes nor of any comparison between the two in the matter of promotion for finding discrimination based upon Article 14 or Article 16(1). No such question is involved in the instant case arid as such reliance placed thereon by the learned Counsel for the State does not help him.
20. Some more decisions may be noticed which were referred to by the learned Counsel for the appellant. The first case referred to by him was Kishori Mohanlal Bakshi v. Union of India : 44ITR532(SC) .
21. This was a case in which there were two classes of Income-tax Officers, namely, Class I and Class II Class I officers were eligible for promotion as Assistant Commissioners but not so Class II officers who were not eligible for direct promotion to the said post. They could obtain such promotion only after having first reached the status of Class I officers. It was contended before the Supreme Court that provisions as regards recruitment to the posts of Assistant Commissioners from Class I officers and not directly from Class II officers was violative of Article 16(1). Dealing with this contention the Supreme Court observed :
What Article 16(1) provides is that there should be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. It might very well be that 'matters relating to employment or appointment to any office' are wide enough to include the matter of promotion. Inequality of opportunity for promotion as between citizens holding different posts in the same grade may, therefore, be an infringement of Article 16. Thus, if, of the Income-tax Inspectors, some were made eligible for promotion as Income-tax Officers and Ors. were not, there would be legitimate ground for complaint that Article 16(1) has been violated. No such complaint can however be reasonably made, if, for example, all Income-tax Inspectors are eligible under the rules for promotion to the post of Income-tax Officers while Income-tax Sub-Inspectors are eligible for promotion only as Income-tax Inspectors but not directly as Income-tax Officers. Similarly if, of the Income-tax Officers of the same grade, some are eligible for promotion to a superior grade, and Ors. are not, the question of contravention of Article 16(1) may well arise. But how can such question arise at all when the rules make Income-tax Officers of Grade I eligible for appointment as Assistant Commissioners, but make Income-tax Officers of Class II eligible for promotion as Income-tax Officers of Class I but not for promotion to the post of Assistant Commissioners There is no denial here of equality of opportunity as among citizens holding posts of the same grade. As between citizens holding posts in different grades in Government service there can be no question of equality of opportunity.
Applying this principle to the instant case some assistant engineers could not be rendered ineligible for promotion on the ground that they are diploma holders.
22. The next case referred to by him was Roshan Lal v. Union of India : (1968)ILLJ576SC . The facts of this case are that there were two grades of train examiners, one Grade 'C' In the scale of Rs. 205-280 and Anr. Grade 'D' in the scale of Rs. 180-240. The mode of recruitment to Grade D was both direct and by promotion. 50% of vacancies were to be filled from apprentice train examiners who had completed the prescribed apprenticeship and the remaining 50% by promotion of skilled artisans. Promotion to Grade 'C' used to take place on the basis of seniority-cum suitability without any distinction whether the employee entered Grade. D direct or by promotion. Subsequently the Railway Board issued a notification which inter alia provided that the vacancies in the grade of Rs. 205-280 shall be filled from amongst the train examiners in grade Rs. 180-240 to the extent of 20% while the remaining 80% of vacancies shall be filled by apprentice train examiners who successfully complete the prescribed apprenticeship. The notification was issued on 27th October, 1965. The notification further provided that the apprentice train examiners who have already been or will be absorbed in scale of Rs. 180-240 upto 31st March, 1966 should first be accommodated in scale of Rs. 205-280 on 80% of the vacancies reserved for them and the remaining 20% shall be filled by promotion of train examiners in scale of Rs. 180-240: on a selection basis. This part of the notification was challenged as discriminatory by one Roshan Lal Tandon who had come to hold the post of train examiner Grade 'D' in 1958 by promotion. His contention was that the petitioner having been brought to Grade 'D' by undergoing the necessary selection and training and having been integrated with others who had been brought by direct recruitment in Grade 'D' could not be differentiated for the purposes of promotion to senior Grade 'C'.
23. Dealing with this contention the Supreme Court observed :
In our opinion the constitutional objection taken by the petitioner to this part of the notification is well-founded and must be accepted as correct. At the time when the petitioner and the direct recruits were appointed to Grade 'D', there was one class in Grade 'D', formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade 'D' were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade 'C'. To put it differently, once the 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 'C'.
The present case clearly falls within the principles of this decision. The diploma holders like appellants and the degree holders appointed as assistant engineers after 1-8-1960 ere grouped together and allowed a common scale of pay and an equal facility for promo-ion under the rules in force before the impugned provisions regarding pay and pro-notion came into force. The existing diploma holder engineers could not, therefore, be discriminated against for pay and facility of promotion under the impugned provisions, his case, therefore, helps the appellants.
24. The learned Counsel then referred us to he decision in Punjab State v. Lekh Raj 'Jowry . The facts of this case are hat upon the merger of Patiala and East Punjab State Union with the erstwhile State of Punjab a single cadre of vaids and hakeems n State Service Class III (technical) was informed to which were appointed with effect rum November 1, 1956 on a uniform pay all he vaids and hakeems from the different states which merged into Patiala and East Punjab States Union although initially they were not appointed on any uniform pay in these States. On August 28, 1963 the Governor if Punjab framed what were called Ayurvedic Department Class III Technical Services Regulations, 1963 regulating the recruitment and conditions of service of persons appointed to the above said service. After coming into force of these rules vaids and hakeems continued to be treated on equal footing as was being done since 1-11-1956. The Government by its notification of 18-2-1964 ordered that the revised scale of pay mentioned therein would be admissible to vaids and hakeems who held five years degree and not to those who held 3 or 4 years degree. The order was challenged before the Punjab High Court which held that some members of the unified cadre could not be treated dissimilarly as against others of the same cadre in the matter of their pay and other relevant conditions of service on the ground that some of them possess higher or better qualifications. This is precisely the point involved here and the decision helps the appellants.
25. The learned Counsel also referred us to the decision in case Joginder Singh Grewal v. State of Punjab 1970 Service L.R. 892 (Punj. & Har.).
26. In this case the petitioner was a B. Sc. (Agriculture) who was appointed as District Agricultural Officer in January, 1957. His next promotion in the line was that of Dy. Director of Agriculture. When he entered service a degree or diploma from Indian or Foreign University together with five years practical experience was laid down as minimum qualification required for the post of Dy. Director, Agriculture under Rule 10 of the Punjab Agricultural Services (Class I part 1947). By letter dated 24th April, 1959, the Government prescribed the minimum qualification of M. Sc. degree in agriculture and five years practical experience in research of extension from the year 1963, The petitioner who was only B. Sc. (Agriculture) was ignored for promotion due to change in minimum qualification by virtue of Government letter dated 24th of April, 1959. The petitioner filed a writ petition contending that by the administrative or executive communications, qualification for eligibility for appointment to the post of Dy. Director, Agriculture could not be altered. Dealing with this point the Court observed:
As regards the first point raised by Mr. Doabia Rule 10 of Class I Rules lays down the qualifications for appointment by promotion. No minimum academic qualification, however, has been expressly or specifically mentioned in that rule. 1 cannot see, therefore, how it was open to the Government by executive instructions, to add anything to the aforesaid rule by way of prescribing the minimum academic qualification, as was done for the post of Deputy Director (Agriculture). In the return it has been maintained in categorical terms that only a person who had obtained M.Sc. degree in Agriculture was entitled to be promoted to that post, since that had been laid down in the letter annexure D, at least with effect from the year 1963. Mr. M.S. Pannu for the State says that it was within the powers of the executive Government to lay down some test of merit for promotion and that is why upto 1963 a degree or diploma in agriculture from Indian or Foreign University together with five years' practical experience in agricultural research or extension was laid down as the minimum qualification required for the posts of Deputy Director (Agriculture) and from 1963 onwards the minimum qualifications were M.Sc. degree in agriculture and five years practical experience in agricultural research or extension. It is also pointed out that the promotions by which the petitioner feels aggrieved were made before 1963 and, therefore, the petitioner could not have any legitimate grievance in respect of the laying down of minimum qualification by the aforesaid memorandum. It must not be forgotten, however, that the position of the State in the return still is that since the petitioner does not possess those qualifications, he would be debarred for all times from being promoted to the post of Deputy Director (Agriculture). I am of the view that since Class 1 Rules did not lay down any such limitation or qualification, the executive Government could not amend or alter the rules or add to them by prescribing any particular qualifications. After all, 'merit' does not consist only in any particular degree. A basic degree, of course, is essential for joining a particular service but a higher degree is no test of merit and, therefore, prescribing the possessing of an M.Sc. degree as a minimum qualification cannot be regarded as something which could be done merely in amplification of the requirement of the rule namely, merit. It would but indeed extraordinary that if the basic qualification for entering Class service was B.Sc. (Agriculture) an most of the members of that class held that degree, they would be debarred from promotion to Class simply because they did not have M.Sc. degree and this could never have been contemplated by the rule as framed. I have, therefore, n manner of doubt that the letter annexure D is ultra vires the rules an must be totally ignored while making promotion to Class I posts of Deputy Directors (Agriculture). 1 do IK mean to say that while making the selection the possessing of a high academic degree would not weight when other qualifications about travelling and experience are equal, bi what I wish to emphasise is the according to the rule, no such min mum qualification could be laid down by executive instructions.
The principles of this case are equally applicable to the present case. Having prescribe diploma or degree in engineering together wit practical experience as a minimum qualifications for entry into service, it was not open t the Government to prescribe degree in engineering or AMIE as minimum qualification to promotion to the category of executive engineers in amplification of the rule of promotion based on merit and ability embodied in the body of the rules.
27. The last case on which reliance was placed by the learned Counsel for the appellant was Kamal Mukharji v. Union of India, : AIR1970Cal250 .
28. This decision reiterates the principle that once recruits from different sources an integrated into one class, no discrimination can thereafter be made in favour of recruit from on source as against other in the matte of promotion or other conditions of service The principle of this case is equally applicable to the present case. Diploma holders like the appellants and degree holders appointed a assistant engineers after 1-8-1960 were integral ed into one class for purposes of pay am facility of promotion and no discrimination could thereafter be made against diploma holder assistant engineers as regards pay and facility of promotion. This case also helps the appellants.
29. For these reasons I hold that the qualification bar placed in the scale of pay prescribed for assistant engineers under Rule 10 (IIB)(i) of Revised Pay Rules of 1968 is violative of Articles 14 and 16 in so far as it affects diploma holder assistant engineers who were appointed assistant engines before 1-11-1967 when the said rules came into force. 1 also hold that the provision regarding minimum qualification for promotion from the category of assistant engineers to that of executive engineers provided for in the Schedule to the Recruitment Rules of 1970 is also violative of Articles 14 or 16 in so far as it affects the diploma holder assistant engineers appointed as assistant engineers before the said rules came into force.
30. To the extent, as aforesaid, the impugned provisions are declared to be inoperative and by a writ of mandamus the respondent-State is directed not to give effect to these provisions in so far as the assistant engineers as aforesaid are concerned. The appeal is accordingly allowed and the judgment of the learned single Judge is hereby set aside but there will be no order as to costs.
1. I fully agree with the order proposed by my learned brother, Mufti Bahauddin, J. and would like to add a few words of my own. The facts of the casa have been succinctly stated and the relevant provisions of law have been clearly set out in the judgment of my learned brother and it is not necessary for me to repeat the same. It would appear from the admitted facts that the Government while recruiting assistant engineers from two sources namely, those having diploma and those having a degree placed them on equal footing in the same scale of pay and grade with equal prospects of future promotion. They were thus treated equally in all respects for a number of years. In other words the appellants and the respondent concerned having been placed in one integrated service with the same set of emoluments governing both these types of engineers, continued to form members of the same class and were similarly situated. Having done so, could the Government after a lapse of a pretty long time choose to discriminate between the appellants and the other respondents either at a later stage by giving higher pay to one and not to the other or at another stage by denying promotion to engineers holding diploma and allowing facilities of promotion to a degree holder It appears that even when the proviso to Rule 10(118)(i) of Jammu and Kashmir Civil Services Pay Rules, 1968, provided that assistant engineers with a diploma would stop at Rs. 610 and would not be allowed to cross the scale whereas those having a degree were allowed to cross upto and limit of Rs. 750, the pay scale of both the members of the same class, namely the appellants and the respondents, continued to be the same. This was, therefore, a case of blatant (and arbitrary discrimination which was not justified by any reasonable and rational classification but was in fact opposed to the canons of justice and fair play. On this ground, therefore, I agree with my learned brother that the proviso to Rule 10(11B)(i)(supra) is clearly ultra vires being violative of Articles 14 or 16 of the Constitution of India.
2. Then comes the second stage when another discrimination is sought to be made and this is at the time of promotion by virtue of Rule 3(f) of the Recruitment Rules of 1970 referred to by my learned brother in his judgment. By providing that the posts of executive engineers and other higher posts would be open only to an engineer who is a degree-holder the appellants' promotion was completely blocked and they were not held entitled to be considered for promotion however brilliant or competent they might have been. At first sight it appeared to me that promotion also being a form of appointment, the Government could lay down minimum qualifications as contended by the State, but on a closer scrutiny of the history and facts of the case, it is manifest that here also the discrimination is very clear and the offending rule is clearly hit by Article 16 of the Constitution of India. ' Suppose one of the appellants who is only a diploma holder by dint of his experience labour, industry and practical skill acquaints himself with latest technique of the profession and turns out to be far more competent and much superior in merit to the respondent who is a degree holder could the appellant be denied promotion merely because he did not hold the theoretical degree of engineering even though in the practical field he had proved to the satisfaction of the appointing authority that his performance was in all respects superior to that of the respondent, who is a degree holder? The answer must clearly be in the negative. In order to ensure durability and efficiency in administration merit should never be sacrificed at the altar of theoretical qualifications and if this is done it will encourage nepotism and favoritisms state of affairs which has been specifically prohibited by our Constitution. The Government could doubtless make a selection and even give preference to a degree holder, but it could not deny the appellant the right to be considered for promotion on the ground of merit and suitability ; otherwise the very concept of equality contained in Act. 16 of the Constitution of India would be completely set at naught.
3. We are fortified in our view by a judgment of the Supreme Court in 5. M. Pandit v. State of Gujarat : 2SCR193 , (1972) Lab. I.C 155, where their Lordships of the Supreme Court while accepting the view of the High Court observed as follows:
The High Court accepting the contention of the writ petitioners came to the conclusion that the impugned Rules violate Articles 14 or 16. It opined that both the directly recruited mamlatdars as well as the promoters mamlatdars formed one class. This being so it was not competent for the Government to discriminate between the directly recruited mamlatdars and the promotee mamlatdars in the matter of their further promotion.
In the case (supra) also it appears that the mamlatdars were drawn from two sources; one by direct recruitment and the other by promotion and after having been taken in service they were given the same designation, the same pay scale and had the same functions to perform. Their Lordships held that in these circumstances they formed one class and the Government could not: discriminate between them in the matter of their further promotion as Dy. Collectors. Thus the facts of the present case appear (o be on all fours with the facts of the Supreme Court case (supra).
4. I, therefore, entirely agree with my learned brother Mufti Bahauddin, J. that both the proviso to Rule IO(IIB)(i) as also the relevant provisions of Rule 3 (f) of the Recruitment Rules of 1970 are ulna vires being violative of Article 16 of the Constitution of India and, therefore, the proposed writ of mandamus must issue.