Chandan Banerjee vs Krishna Prosad Ghosh on 21 September, 2021


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Supreme Court of India

Chandan Banerjee vs Krishna Prosad Ghosh on 21 September, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, Vikram Nath, B.V. Nagarathna

                                                                                                                            Reportable


                                                IN THE SUPREME COURT OF INDIA
                                                 CIVIL APPELLATE JURISDICTION
                                                Civil Appeal No 5582 of 2021
                                         (Arising out of SLP (C) Nos. 11781 of 2019)



          Chandan Banerjee & Ors                                                                                        ....Appellants


                                                                         Versus


          Krishna Prosad Ghosh & Ors.                                                                             .... Respondents



                                                                 JUDGMENT

Dr Dhananjaya Y. Chandrachud, J

Index

A Facts……………………………………………………………………………………………………. 2

B Submissions of parties …………………………………………………………………………. 9

C Legal Position…………………………………………………………………………………….. 12

D Analysis …………………………………………………………………………………………….. 22

E Conclusion…………………………………………………………………………………………. 29

Signature Not Verified

Digitally signed by
Sanjay Kumar
Date: 2021.09.21
13:50:39 IST
Reason:

1
3 PART A

1 The appeal arises from a judgment of the Division Bench of the High Court

of Calcutta dated 25 January 2019. The Division Bench upheld a circular dated 3

July 2012 of the Kolkata Municipal Corporation 1 which prescribed separate

conditions for diploma and degree holder Sub-Assistant Engineers 2 for

supernumerary appointments as Assistant Engineers 3. The gradation list dated 5

July 2012 prepared in pursuance of the impugned circular has also been upheld.

2 The appellants, who are SAEs possessing a diploma in engineering,

instituted a writ petition before the High Court challenging the circular dated 3

July 2012 and gradation list on the ground that classification within the same

cadre of SAE for the purpose of appointment to supernumerary posts violates

Articles 14 and 16 of the Constitution of India. By a judgment dated 6 October

2015, the Single Judge of the High Court allowed the writ petition and held the

circular to be arbitrary and unconstitutional. In a Letters Patent Appeal, the

Division Bench, reversed the decision of the Single Judge and held that

classification made on the basis of educational qualifications for supernumerary

appointments to the higher post of Assistant Engineer, is valid.

A         Facts


3         KMC, the twentieth respondent, has two distinct service cadres in the

Engineering Department : (i) Subordinate Engineering Service and (ii)

Engineering Service. The entry post in the Subordinate Engineering Service is a

Sub-ordinate Assistant Engineer (SAE), for which the minimum qualification is a

diploma in engineering in civil/mechanical/electrical branches. Although the

1
“KMC”
2
“SAE”
3
“AE”

2
3 PART A

minimum requirement is that of a diploma, a person holding a degree in

engineering is also eligible to participate in the selection process. The selection

process involves a written examination, followed by an interview conducted by

the Municipal Service Commission. Pursuant to this, a merit list is prepared. The

cadre of Subordinate Engineering Service comprises of persons holding a

diploma or degree in engineering, many of the degree holders having acquired

the qualification after appointment. The first promotion from the post of SAE is as

an Assistant Engineer (AE), after which an SAE can aspire for successive

promotions, right up to the post of Chief Engineer. The AE is the entry level post

in the Engineering Service cadre, for which direct recruitment is conducted from

persons holding an engineering degree. Thus, the post of AE may be filled

through direct recruitment or through promotion of SAEs.

4 On 23 December 1994, the Calcutta Municipal Corporation Services

(Common Cadres) Regulations 4 were notified under Section 20 of the Calcutta

Municipal Corporation Act 1980. The Recruitment Regulations apply to the

employees under all departments and offices and provide for the management

and control of common cadres; seniority and recruitment, among other conditions

of service. Rule 9 of the Recruitment Regulations provides the method of

recruitment for the post of AE and SAE, which is contained in the table below:

Assistant Engineer 50% posts of the total cadre strength of
(Civil/Mechanical/Electrical) Assistant Engineer shall be filled up by
promotion from the posts borne in the
Common Cadre for Sub-Assistant
Engineer

AND

50% posts of the said cadre strength

4
Circular No 69 of 1994-95; hereinafter “Recruitment Regulations”

3
3 PART A

shall be filled up by direct recruitment
observing necessary formalities

Qualifications for direct recruitment

A degree in civil/Mechanical/Electrical
Engineering of a recognised University
or its equivalent.

Age not more than 35 years on the 1st
January of the year of advertisement.

Desirable: one year’s post-graduate
practical training or study or research of
practical Engineering Experience.

Sub-Assistant Engineer Only by direct recruitment observing
(Civil/Mech./Electrical) necessary formalities

Qualifications for direct recruitment

A diploma in Civil/Mechanical/Electrical
Engineering from the state council for
Engineering and Technical Education,
West Bengal or its equivalent.

Age not more than 35 years on the 1st
January of the year of the advertisement.

Desirable: One year’s practical training
or study or research or practical
Engineering experience.

Note: Each Cadres of Deputy Chief
Engineer, Executive Engineer, Assistant
Engineer, and Sub-Assistant Engineer
will be streamwise i.e. for Civil,
Mechanical and Electrical.

5 The Recruitment Regulations were modified on 7 August 1997 to provide

three modes of appointment to the post of AE: (i) promotion of SAEs having at

least 10 years’ experience in the post below AE; (ii) direct recruitment; and (iii)

promotion by selection of SAEs from all disciplines having a degree. The quota

for the above three streams was fixed at 45% : 45% : 10%. The modified

Regulations are produced below:

4
3 PART A

For Promotion

Assistant – Engineer 45% of the post of the total Cadre
(Civil)/Mechanical/Electrical. strength of Assistant Engineer shall be
filled up by promotion from the posts
borne in the common cadre for Sub-

Assistant Engineer having at least 10
years experience in the post below
Assistant Engineer and 45% of the said
cadre strength shall be filled up by direct
recruitment observing necessary
formalities and 10% of the posts should
be kept for reserved for promotion
by selection to the post of Assistant
Engineer from Sub-Assistant Engineer of
all Disciplines having a Degree. The
promotion will be made strictly on merit
basis from among the Sub-Assistant
Engineer holding Engineering Degree in
respective disciplines having 10 (ten)
years experience in the post of sub-

Assistant Engineer.

6 The Recruitment Regulations for the post of AE were modified by KMC

and notified by a circular 5 dated 20 February 2002, which stated that:

(i) 50% of the total cadre strength of AE shall be filled up by promotion from

the posts borne in the common cadre for SAE having at least ten years’

experience as an SAE;

(ii) 15% of the post of total cadre strength of AE shall be filled up by

promotion from amongst SAEs having an engineering degree or

equivalent from a recognized University; and having at least ten years’

experience as an SAE, out of which a minimum of five years should be as

a degree (of equivalent) holder SAE in respective streams; and

5
D.M.C.(P)’s Circular No./4/2001-2002

5
3 PART A

(iii) 35% of the total cadre strength would be filled up by direct recruitment

observing necessary formalities.

7 This circular was challenged in a writ petition 6 before the High Court, which

was disposed of with a direction to the petitioners in that case to make a

representation before the KMC.

8 The KMC, in an effort to remove stagnation in promotion to the next higher

post of AE from the post of SAE, issued a circular 7 dated 17 June 2008. The

circular, also known as the first career advancement scheme, stipulated awarding

the basic scale of pay (Rs. 8,000 – 275/- 1000) of an AE to SAEs who have

completed twenty years of satisfactory service in the KMC.

9 In 2012, a proposal was circulated by the Personnel Department of KMC

for creation of supernumerary posts in the rank of AEs for opening promotional

avenues for SAEs. The rationale for the proposal was to rectify the stagnation

faced by SAEs who, despite having completed twenty to twenty-five years of

service, had not been promoted and were thus, demotivated. In addition to this,

some SAEs had acquired an engineering degree while in service, and yet had not

been promoted. The proposal sought to create a distinction between SAEs

holding a diploma and those holding a degree (acquired prior to joining KMC as

an SAE, or during the service). The former would be promoted to the post of an

AE if they had completed twenty-five years of service, while the latter would be if

they had completed thirteen years of service or more, out of which five years

were served as a degree holder.

6
Manas Kumar Sinha v. The State of West Bengal & Ors., Writ Petition 3720(W) of 2008
7
D.M.C(P)’s Circular No. 06/IIIB/2008-09; hereinafter “First Career Advancement Scheme”

6
3 PART A

10 The proposal, which was considered to be the second career

advancement scheme, was implemented by the impugned circular dated 3 July

2012. The circular stipulates the creation of supernumerary AE posts for SAEs

holding a diploma and having completed twenty-five years of service and SAEs

holding a degree and having completed thirteen years of service (out of which

five years were as a degree holder). Clause 3 of the impugned circular states that

the supernumerary posts will be adjusted against the permanent vacancies as

and when a vacancy becomes available within the sanctioned posts of AE.

Further, Clause 5 of the impugned circular provides that there is no change in the

existing Recruitment Regulations for the posts of AE. In pursuance of the

impugned circular, an office order dated 5 July 2012 published a list of SAEs who

had been promoted to the post of AE against the supernumerary posts. Both the

impugned circular and the subsequent gradation list have been challenged before

the High Court and this Court.

11 The Single Judge of the High Court held that when persons having

different educational qualifications are subject to a common recruitment process

and are selected thereafter, a subsequent classification in that cadre would be in

violation of Articles 14 and 16 of the Constitution. The Single Judge also

observed that the classification for promotion was not made to reward those

SAEs who had improved their educational qualification during service, but instead

was a benefit granted to all degree holders. On the contrary, in appeal, the

Division Bench of the High Court upheld the validity of the impugned circular and

gradation list and while reversing the view of the Single Judge observed that:

7
3 PART A

(i) The quota for promotion from SAEs to AEs on the basis of educational

qualification and experience was created on 7 August 1997, and not by

the impugned circular. The previous circulars making such a distinction

have not been challenged and have remained in operation;

(ii) Irrespective of their qualification, the SAEs are given the basic pay scale

of an AE on completion of twenty years of service. The impugned circular

by creating supernumerary posts, merely designates SAE as AEs. No

other benefit is granted apart from this designation;

(iii) The impugned circular does not modify the existing promotional avenues,

but only supplements them by conferring the title of AE on certain eligible

SAEs. These supernumerary posts are subject to adjustment against

permanent vacancies on being created. Thus, the normal strength of the

AE cadre is not increased;

(iv) The impugned circular does not alter the promotional avenues of an SAE

holding a diploma, nor does it enhance the promotional avenues of a

degree holder. Thus, the quota of posts created by the circular dated 20

February 2002 (modified by circular dated 17 June 2008), has not been

superseded by the impugned circular; and

(v) In State of Jammu & Kashmir v. Shri Trilokinath Khosa8, this Court

held that a classification made on the basis of educational qualifications to

achieve administrative efficiency is not arbitrary or impermissible under

Articles 14 or 16 of the Constitution. The classification made by KMC to

increase efficiency by removing frustration amongst stagnated SAEs is

also a similar policy decision, which must not be interfered with.

8
    (1974) 1 SCC 19

                                             8
                                                                              3   PART B

B          Submissions of parties


12         Mr Bikash Ranjan Bhattacharya, learned Senior Counsel appearing on

behalf of the appellants who are diploma holder SAEs, has made the following

submissions:

(i) The private respondents to the appeal are persons possessing an

engineering degree, who had joined the cadre of SAE despite the

minimum qualification for the said post being a diploma in engineering.

These persons already have a separate reservation of 15 per cent for the

promotion to the post of an AE according to circular dated 20 February

2002;

(ii) The impugned circular sought to provide an incentive to stagnating SAEs

for promotion. However, KMC had failed to notify that an existing SAE

could obtain a higher qualification to avail of the benefit of promotion by

creating supernumerary posts. In the absence of such a notice, differential

treatment cannot be meted out to persons who have been recruited

through a common process;

(iii) The decisions of this Court in Union of India v. Atul Shukla & Ors. 9; Co.

AS Iyer & Ors. v. Bala Subramanyan & Ors. 10; Punjab State Electricity

Board & Anr. v. Ravinder Kumar Sharma & Ors. 11 indicate that once

persons have become members of a service, they are equals and cannot

be differentiated for the purpose of salary, seniority, promotion and

conditions of service. A career advancement scheme is an incentive and a

class amongst a class cannot be created to grant this benefit;
9

(2014) 10 SCC 432
10
(1980) 1 SCC 634
11
(1986) 4 SCC 617

9
3 PART B

(iv) The impugned order of the High Court failed to appreciate the ratio of

Trilokinath Khosa (supra), where this Court had upheld separate

channels of promotion for degree holders and diploma holders as they

had been recruited through different channels on the basis of their

qualifications. In this case, the selection was through a common channel;

(v) During the pendency of the appeal, KMC has issued a draft gradation list

dated 4 March 2021, which indicates that the SAEs holding diplomas will

have no effective promotional avenue as those promoted against

supernumerary posts created will first occupy the substantive posts of

AEs; and

(vi) The effect of the impugned circular will be that a junior SAE, holding a

degree, will be promoted faster than a senior SAE holding a diploma and

having more experience.

13 Opposing the submissions of Mr Bhattacharya, Mr Sujoy Mondal, learned

Counsel appearing on behalf of KMC, has submitted:

(i) The Recruitment Regulations provide that educational qualification is one

of the criteria for recruitment as well as promotion in the Engineering

Service of KMC;

(ii) The purpose of the impugned circular was to open promotional avenues

for stagnating SAEs. However, by this circular, neither are SAEs given

substantive promotional posts of AE, nor has any financial benefit been

granted to them. They have only been awarded with a designation of AE

for efficient administrative functioning;

10
3 PART B

(iii) As an employer, KMC is entitled to create a differentiation for effective

discharge of duty and to remove frustration of the SAEs; and

(iv) In view of the decisions of this Court in Trilokinath Khosa (supra), Roop

Chand Adlakha v. Delhi Development Authority and others 12; State of

Uttarakhand v. SK Singh 13 and other cases, even where persons having

different qualifications are given an opportunity for promotion, absolute

equality cannot be maintained as the administration may consider giving

the lesser qualified a promotional opportunity on different terms, rather

than prohibiting them altogether.

14 Mr Amit Sharma, learned Counsel appearing on behalf second, fifth, sixth,

seventh, eighth and ninth respondents who are degree-holding SAEs, has

supported the submissions of Mr Mondal and urged that:

(i) None of the contesting respondents held engineering degrees at the time

of recruitment to the post of SAE, and had acquired them during service;

(ii) The first circular providing a quota for promotion from SAE to AE on the

basis of educational qualifications was dated 7 August 1997, which has

remained unchallenged till date. Similarly, the circular dated 20 February

2002 was challenged unsuccessfully and the circular dated 17 June 2008

was not challenged; and

(iii) The present case is similar to the decision in Roop Chand Adlakha

(supra), where the category of Junior Engineers comprised of both

graduates and diploma holders and a rule providing for different length of

qualifying service for promotion was challenged. This Court upheld the

12
1989 Supp (1) SCC 116
13
(2019) 10 SCC 49

11
3 PART C

rule, holding that differences in educational qualifications could be

compensated by difference in length of experience required in the feeder

post.

15 Having adverted to the submissions of the parties, we shall now address

the issue at hand.

C         Legal Position


16        The issue before the Court lies in a narrow compass. The question for

consideration is whether persons drawn from a common source who have been

integrated into a cadre can be differentiated on the basis of educational

qualifications for the purpose of promotion to supernumerary posts.

17 The challenge to the classification made for the purpose of promotion rests

on the ground of equality and equal treatment in matters of public employment

guaranteed by Articles 14 and 16 of the Constitution. The Constitution enshrines

the principle of non-discrimination on the basis of religion, race, caste, sex, place

of birth or descent for appointment to any office under the State. Under this

guarantee, similarly situated persons are to be treated equally. Article 16

however does not a bar reasonable classifications by the State for selection of

employees.

18 The locus classicus on the question whether educational qualifications can

be used as a criteria for classification between persons integrated into one class

for the purpose of promotion is the decision of a Constitution Bench of this Court

in State of Jammu & Kashmir v. Trilokinath Khosa14. In this case, the post of

14
(1974) 1 SCC 19

12
3 PART C

an Assistant Engineer in the Engineering Service branch of the appellants was

filled by way of direct recruitment or through promotion from the cadre of Sub-

ordinate Engineering Service. A rule was introduced in 1970 restricting the

promotion to the next higher post of an Executive Engineer only to those

Assistant Engineers who possessed a degree in engineering or held the

qualification of A.M.I.E and had put in seven years of service. The respondents,

who were diploma holders and serving as Assistant Engineers, challenged the

rule on grounds of discrimination. The Constitution Bench dealt with the question

of whether persons recruited from different sources, that are integrated into one

class, can then be classified to permit preferential treatment to some persons on

the basis of their educational qualifications. Justice YV Chandrachud (as the

learned Chief Justice then was), speaking for the Bench elaborated on the extent

of judicial review in matters of classification in public employment and observed

that

“32. Judicial scrutiny can therefore extend only to the
consideration whether the classification rests on a reasonable
basis and whether it bears nexus with the object in view. It
cannot extend to embarking upon a nice or mathematical
evaluation of the basis of classification, for were such an
inquiry permissible it would be open to the Courts to
substitute their own judgment for that of the legislature or the
Rule-making authority on the need to classify or the
desirability of achieving a particular object.

33. Judged from this point of view, it seems to us impossible
to accept the respondents’ submission that the classification
of Assistant Engineers into degree-holders and diploma-
holders rests on any unreal or unreasonable basis. The
classification, according to the appellants, was made
with a view to achieving administrative efficiency in the
Engineering services. If this be the object, the
classification is clearly co-related to it, for higher
educational qualifications are at least presumptive
evidence of a higher mental equipment. This is not to

13
3 PART C

suggest that administrative efficiency can be achieved
only through the medium of those possessing
comparatively higher educational qualifications but that
is beside the point. What is relevant is that the object to
be achieved here is not a mere pretence for an
indiscriminate imposition of inequalities and the
classification cannot be characterized as arbitrary or
absurd. That is the farthest that judicial scrutiny can
extend.

34. On the fact of the case, classification on the basis of
educational qualifications made with a view to achieving
administrative efficiency cannot be said to rest on any
fortuitous circumstance and one has always to bear in mind
the facts and circumstances of the case in order to judge the
validity of a classification.”
(emphasis supplied)

On the issue whether educational qualifications can be recognised as a criterion

for classification, the judgment referred to the decisions of this Court in State of

Mysore v. P Narasing Rao 15; Ganga Ram v. Union of India 16, Union of India

v. Dr (Mrs) SB Kohli 17 and Roshan Lal Tandon v. Union of India 18 and noted

that:

“41. We have drawn attention to three decisions of this Court
(Narasing Rao case, Ganga Ram case and Dr (Mrs) Kohli
case) in which classification on the basis of educational
qualifications was upheld. In Narasing Rao case, Tracers
doing equal work were classified into two grades having
unequal pay, the basis of the classification being higher
educational qualifications. In Dr (Mrs) Kohli case, as refined a
classification as between an F.R.C.S. in general surgery and
an F.R.C.S. in Orthopaedics was upheld in relation to
appointment to the post of a Professor of Orthopaedics. But
these cases are sought to be distinguished on the authority of
the decision of this Court in Roshan Lal Tandon v. Union of
[I
]ndia [AIR 1967 SC 1889 : (1968) 1 SCR 185 : (1968) 1 SCJ
746] . That case is crowded with facts and requires a careful
consideration for its proper understanding.

[…]

15
AIR 1968 SC 349
16
(1970) 1 SCC 377
17
(1973) 3 SCC 592
18
AIR 1967 SC 1889

14
3 PART C

45. Thus, all that Roshan Lal case lays down is that direct
recruits and promotees lose their birth-marks on fusion into a
common stream of service and they cannot thereafter be
treated differently by reference to the consideration that they
were recruited from different sources. Their genetic blemishes
disappear once they are integrated into a common class and
cannot be revived so as to make equals unequals once again.

46. Roshan Lal case is thus no authority for the proposition
that if direct recruits and promotees are integrated into one
class, they cannot be classified for purposes of promotion on
a basis other than the one that they were drawn from different
sources. In the instant case, classification rests fairly and
squarely on the consideration of educational qualifications:
Graduates alone shall go into the higher post, no matter
whether they were appointed as Assistant Engineers directly
or by pro- motion. The discrimination therefore is not in
relation to the source of recruitment as in Roshan Lal case.

50. We are therefore of the opinion that though persons
appointed directly and by promotion were integrated into
a common class of Assistant Engineers, they could, for
purposes of promotion to the cadre of Executive
Engineers, be classified on the basis of educational
qualifications. The Rule providing that graduates shall be
eligible for such promotion to the exclusion of diploma-
holders does not violate Articles 14 and 16 of the
Constitution and must be upheld.”
(emphasis supplied)

19 The dictum in Trilokinath Khosa (supra) was further expounded on by a

subsequent decision of a Constitution Bench of this Court in Mohammed Shujat

Ali v. Union of India 19. In Mohd. Shujat (supra), the Court was faced with a

challenge to a quota reserved in promotion to the higher post of Assistant

Engineers for the graduate Supervisors as opposed to the non-graduate

Supervisors. Justice PN Bhagwati (as the learned Chief Justice then was),

speaking for the Bench, held that

“28. […] But from these decisions it cannot be laid down
as an invariable rule that whenever any classification is
made on the basis of variant educational qualifications,
such classification must be held to be valid, irrespective

19
(1973) 3 SCC 76

15
3 PART C

of the nature and purposes of the classification or the
quality and extent of the differences in the educational
qualifications. It must be remembered that “life has relations
not capable always of division into inflexible compartments”.
The moulds expand and shrink. The test of reasonable
classification has to be applied in such case on its peculiar
facts and circumstances. It may be perfectly legitimate for the
administration to say that having regard to the nature of the
functions and duties attached to the post, for the purpose of
achieving efficiency in public service, only degree holders in
engineering shall be eligible for promotion and not diploma or
certificate holders. That is what happened in State of Jammu
& Kashmir v. Triloki Nath Khosa
and a somewhat similar
position also obtained in Union of India v. Dr (Mrs.) S.B.
Kohli
. But where graduates and non-graduates are both
regarded as fit and, therefore, eligible for promotion, it is
difficult to see how, consistently with the claim for equal
opportunity, any differentiation can be made between them by
laying down a quota of promotion for each and giving
preferential treatment to graduates over non-graduates in the
matter of fixation of such quota. The result of fixation of quota
of promotion for each of the two categories of Supervisors
would be that when a vacancy arises in the post of Assistant
Engineer, which, according to the quota is reserved for
graduate Supervisors, a non-graduate Supervisor cannot be
promoted to that vacancy, even if he is senior to all other
graduate Supervisors and more suitable than they. His
opportunity for promotion would be limited only to vacancies
available for non-graduate Supervisors. That would clearly
amount to denial of equal opportunity to him.

[…]

But even so, we do not think we can be persuaded to
strike down the Andhra Pradesh Rules insofar as they
make differentiation between graduate and non-graduate
Supervisors. This differentiation is not something
brought about for the first time by the Andhra Pradesh
Rules. It has always been there in the Engineering
Services of the Hyderabad and the Andhra States. The
graduate Supervisors have always been treated as a
distinct and separate class from non-graduate
Supervisors both under the Hyderabad Rules as well as
the Andhra Rules and they have never been integrated
into one class. Under the Hyderabad Rules, the pay scale of
graduate Supervisors was Rs 176-300, while that of non-
graduate Supervisors was Rs 140-300 and similarly, under
the Andhra Rules, the pay, scale of non-graduate Supervisors
was Rs 100-250, but graduate Supervisors were started in
this pay scale at the stage of Rs 150 so that their payscale
was Rs 150-250. Graduate Supervisors and non-graduate

16
3 PART C

Supervisors were also treated differently for the purpose of
promotion under both sets of rules. In fact, under the Andhra
Rules a different nomenclature of Junior Engineers was given
to graduate Supervisors. The same differentiation into two
classes also persisted in the reorganised State of Andhra
Pradesh. The payscale of Junior Engineers was always
different from that of non-graduate Supervisors and for the
purpose of promotion, the two categories of Supervisors were
kept distinct and apart under the Andhra Rules even after the
appointed day. The common gradation list of Supervisors
finally approved by the Government of India also consisted of
two parts, one part relating to Junior Engineers and the other
part relating to non-graduate Supervisors. The two categories
of Supervisors were thus never fused into one class and no
question of unconstitutional discrimination could arise by
reason of differential treatment being given to them.
Contention E cannot, therefore, prevail and must be rejected.”

(emphasis supplied)

20 The Court observed that the service rules for the Engineering Department

had consistently maintained a differentiation between graduate Supervisors and

non-graduate Supervisors and they were never merged into one class.

21 In Roop Chand Adlakha v. Delhi Development Authority20, a two judge

Bench of this Court dealt with the question of whether different conditions of

eligibility for promotion could be provided between diploma holders and degree

holders. In the facts of the case, the initial recruitment to the cadre of Junior

Engineer in the Public Works Department of the respondent was made from two

different sources- that is degree holders with no experience and diploma holders

having two years of experience or more. For promotion to the cadre of Assistant

Engineers, Junior Engineers holding a degree were required to have three years

of experience, while Junior Engineers holding a diploma were required to have

eight years of experience. Following the decision of this Court in Trilokinath

20
1989 Supp (1) SCC 116

17
3 PART C

Khosa (supra), Justice MN Venkatachaliah (as the learned Chief Justice then

was) observed that

“29. In Triloki Nath case [(1974) 1 SCC 19 : 1974 SCC (L&S)
49 : (1974) 1 SCR 771] diploma-holders were not considered
eligible for promotion to the higher post. Here, in the present
case, the possession of a diploma, by itself and without more,
does not confer eligibility. Diploma, for purposes of promotion,
is not considered equivalent to the degree. This is the point of
distinction in the situations in the two cases. If diploma-
holders — of course on the justification of the job
requirements and in the interest of maintaining a certain
quality of technical expertise in the cadre — could validly be
excluded from the eligibility for promotion to the higher cadre,
it does not necessarily follow as an inevitable corollary that
the choice of the recruitment policy is limited to only two
choices, namely, either to consider them “eligible” or “not
eligible”. State, consistent with the requirements of the
promotional posts and in the interest of the efficiency of
the service, is not precluded from conferring eligibility on
diploma-holders conditioning it by other requirements
which may, as here, include certain quantum of service
experience. In the present case, eligibility determination
was made by a cumulative criterion of a certain
educational qualification plus a particular quantum of
service experience. It cannot, in our opinion, be said, as
postulated by the High Court, that the choice of the State
was either to recognise diploma-holders as “eligible” for
promotion or wholly exclude them as “not eligible”. If the
educational qualification by itself was recognised as
conferring eligibility for promotion, then, the
superimposition of further conditions such as a
particular period of service, selectively, on the diploma-
holders alone to their disadvantage might become
discriminatory. This does not prevent the State from
formulating a policy which prescribes as an essential
part of the conditions for the very eligibility that the
candidate must have a particular qualification plus a
stipulated quantum of service experience. It is stated that
on the basis of the “Vaish Committee” report, the authorities
considered the infusion of higher academic and technical
quality in the personnel requirements in the relevant cadres of
Engineering Services necessary. These are essentially
matters of policy. Unless the provision is shown to be
arbitrary, capricious, or to bring about grossly unfair
results, judicial policy should be one of judicial restraint.
The prescriptions may be somewhat cumbersome or
produce some hardship in their application in some
individual cases; but they cannot be struck down as

18
3 PART C

unreasonable, capricious or arbitrary. The High Court, in
our opinion, was not justified in striking down the rules as
violative of Articles 14 and 16.

(emphasis supplied)

22 In another decision in M Rathinaswami v. State of Tamil Nadu 21, directly

recruited Assistants were placed above the promotee Assistants in the list for

promotion to the post of Deputy Tehsildar. The minimum qualification for direct

recruitment to an Assistant was a graduation degree, while promotee Assistants,

who were promoted from the rank of Junior Assistant, were usually non-

graduates. The Court observed that the classification made by the executive

must have a rational basis. Thus, although the respondents could create a

distinction between direct recruit graduate Assistants and non-graduate promotee

Assistants on the basis of educational qualifications, those promotee Assistants

who were graduates could not be discriminated against for the purpose of

promotion.

23 A decision relevant for the purpose for this case is State of Uttarakhand

v. SK Singh 22. Similar to the present case, the minimum eligibility requirement for

the feeder post of a Junior Engineer was that of a diploma, not a degree,

however, degree holders were considered eligible. 60 per cent of appointments to

the higher post of an Assistant Engineer were made through promotions from the

cadre of Junior Engineer, while the balance 40 per cent were through direct

recruitment. Out of the said 60 per cent, 7.33 per cent was reserved for

accelerated promotion where Junior Assistants holding a degree were entitled to

promotion after three years of service, as against the normal promotion which

required ten years of service. The High Court had held that if the higher

21
(2009) 2 SCC (LS) 101
22
(2019) 10 SCC 49

19
3 PART C

qualification of a degree was not contemplated as a requirement for being

appointed to the feeder post, then two different periods of experience could not

be provided later for promotion to the next higher post. In reversing the decision

of the High Court, a two judge Bench of this Court speaking through Justice

Sanjay Kishan Kaul, upheld the different eligibility conditions for accelerated

promotions for graduate Junior Assistants. The Court also went as far as to

suggest that even if the non-graduates were completely shut out of promotion, or

if the time periods (that is the experience) required for normal promotions were

different between degree and diploma holders, those classifications would also

be valid under law.

24 The appellants in their submissions have strongly urged this Court to follow

a separate line of precedent, such as in the decisions in AS Iyer v. V

Balasubramanyam 23; Union of India v. Atul Shukla 24, Maharashtra Forest

Guards and Foresters Union v. State of Maharashtra 25. The decisions of this

Court in AS Iyer (supra) and Atul Shukla (supra) upheld the proposition of law

that differentiation on the basis of ‘source of recruitment’ cannot be a valid ground

of classification. Similarly, in Maharashtra Forest Guards and Foresters Union

(supra), this Court struck down a rule prescribing micro-classification for

promotion from a Forest Guard to a Forester, as promotion of non-graduate

Forest Guards was entirely restricted.

25 In Food Corporation of India v. Om Prakash 26, this Court adjudicated on

the validity of a rule providing for different eligibility conditions between graduates

23
(1980) 1 SCC 634
24
(2014) 10 SCC 432
25
(2018) 1 SCC 149
26
(1998) 7 SCC 676

20
3 PART C

and matriculates for promotion from the post of Assistant Grade II (AG II) to

Assistant Grade I (AG I) as a typist or telephone operator. While the former were

eligible for promotion after three years of service, the latter would be eligible after

five years of service. The Court struck down the rule as there was no material to

show that the nature of work in the posts of AG I or AG II required higher

efficiency which could only be expected from graduates and not non-graduates.

Thus, the nexus between the rule and the objective of achieving higher efficiency

was absent.

26 The principles which emerge from the above line of precedents can be

summarised as follows:

(i) Classification between persons must not produce artificial inequalities.

The classification must be founded on a reasonable basis and must bear

nexus to the object and purpose sought to be achieved to pass the muster

of Articles 14 and 16;

(ii) Judicial review in matters of classification is limited to a determination of

whether the classification is reasonable and bears a nexus to the object

sought to be achieved. Courts cannot indulge in a mathematical

evaluation of the basis of classification or replace the wisdom of the

legislature or its delegate with their own;

(iii) Generally speaking, educational qualification is a valid ground for

classification between persons of the same class in matters of promotion

and is not violative of Articles 14 and 16 of the Constitution;

(iv) Persons drawn from different sources and integrated into a common class

can be differentiated on grounds of educational qualification for the

21
3 PART C

purpose of promotion, where this bears a nexus with the efficiency

required in the promotional post;

(v) Educational qualification may be used for introducing quotas for promotion

for a certain class of persons; or may even be used to restrict promotion

entirely to one class, to the exclusion of others;

(vi) Educational qualification may be used as a criterion for classification for

promotion to increase administrative efficiency at the higher posts; and

(vii) However, a classification made on grounds of educational qualification

should bear nexus to the purpose of the classification or the extent of

differences in qualifications.

27 We shall now proceed to examine the facts of the present case within the

legal framework laid out above.

D       Analysis


28      At the outset we must point out that the appellants have not contested the

fact that educational qualification is not a valid ground for classification in matters

of public employment, or that promotional avenues are not available to diploma

holder SAEs to the post of AE. The appellants seek to challenge the impugned

circular on the limited ground that the eligibility conditions for promotion to the

supernumerary posts of AE are different for diploma-holder SAEs, who require

twenty-five years of experience to be eligible, as opposed to degree-holder SAEs,

who require thirteen years of experience.

29 The crux of the case of the appellants is that unlike Trilokinath Khosa

(supra), where recruitment was through two different sources of recruitment

(direct recruitment and through promotion) after which graduates and diploma
22
3 PART D

holders were integrated into a class, in the present case there was a common

examination for recruitment of SAEs. It has been urged that once the graduates

and diploma holders have qualified at the common examination, that is a single

source of recruitment and any differentiation on the basis of educational

qualification would be invalid. Thus, it has been submitted that the decision of this

Court in Trilokinath Khosa (supra) would be inapplicable to the present case.

30 In our view, the reading of Trilokinath Khosa (supra) as urged by the

appellants is fundamentally flawed. The appellants have sought to lay emphasis

on the fact that the decision in Trilokinath Khosa (supra) was dependent on the

existence of two different sources of recruitment, while in the present case there

is a single source of recruitment. To read the decision in this light is to miss the

wood for the trees. In Trilokinath Khosa (supra), the Court had adverted to the

well-established principle that once direct recruits and promotees are integrated

into a common pool, they cannot be treated differently based on the ‘source of

recruitment’. This however does not imply that they cannot be classified on other

reasonable grounds. Thus, whether there are two different streams of

recruitment, or a single source of recruitment merged into a common pool, the

classification that was upheld in Trilokinath Khosa (supra) was based on

educational qualification which was linked to the purpose of enhancing

administrative efficiency in the organization. We are unable to agree with the

submission of the appellants that the decision in Trilokinath Khosa (supra) is not

applicable in the present case.

23
3 PART D

31 We shall now address the question of whether the classification made by

KMC based on educational qualification was reasonable given the objective

sought to be achieved.

32 The unamended Recruitment Regulations for KMC formulated in

December 1994 provided that 50 per cent of the total cadre strength of AEs shall

be filled through promotion from SAEs, while the remaining 50 per cent would be

filled by direct recruitment. The SAEs in turn were to be recruited from candidates

who had achieved the qualification of a diploma in engineering or above. Thus,

the Recruitment Rules initially did not stipulate different conditions for promotion

between diploma-holder SAEs or degree-holder SAEs.

33 On 7 August 1997, the Recruitment Regulations were modified and a

quota was introduced for the promotion of degree-holder SAEs. By this

amendment, 45 per cent of AEs were to be directly recruited; 45 per cent were to

be promoted from SAEs (either diploma or degree holder) having ten years of

experience and 10 per cent was reserved for degree-holders SAEs who had

served for ten years. A classification was made between degree-holder SAEs

and diploma-holder SAEs, giving the former a preference over the latter.

However, the promotional avenues for diploma-holder SAEs were not completely

restricted.

34 The Recruitment Regulations were modified again by a circular dated 20

February 2002. By this amendment, the proportion of AEs to be recruited directly

was reduced from 45 per cent to 35 per cent. The advantage of this 10 per cent

reduction was given to both sets of promotees, that is, the reservation for degree-

holder SAEs was enhanced to 15 per cent, while the balance 50 per cent was to

24
3 PART D

be filled by promotion from SAEs (either diploma or degree holders) having ten

years of experience. This circular was challenged unsuccessfully before the High

Court.

35 The amendments made to the Recruitment Regulations indicate that in

matters of promotion, KMC has repeatedly sought to create a distinction between

degree-holder SAEs and diploma-holder SAEs since 1997, by introducing a

quota for the promotion of the former. In doing so, it did not foreclose promotional

avenues for diploma holder SAEs. In fact, in 2002, the promotional avenues were

fairly enhanced for both degree and diploma-holder SAEs, while maintaining a

preference for the former.

36 KMC also sought to provide career incentives to reduce stagnation

amongst SAEs. The First Career Advancement Scheme was introduced in 2008

which stipulated increasing of the scale of basic pay of an SAE to that of an AE.

In matters of pay, no distinction was made between degree or diploma-holder

SAEs as the duties and work performed by both sets of SAEs remained the

same.

37 The Second Career Advancement Scheme introduced by the impugned

circular sought to create supernumerary AE posts. Promotion to these posts was

made available to both SAEs holding degrees and diplomas. However, the

eligibility conditions, in terms of the years of service of these SAEs in KMC, are

different. A challenge has been raised against these conditions.

38 The Recruitment Regulations and their subsequent amendments by KMC

suggest that the administration has continued to create a distinction between

degree and diploma holder SAEs for the purpose of promotion. In regular
25
3 PART D

promotion, this distinction is made by way of a quota for degree-holder SAEs,

while in terms of supernumerary promotion, it has been by way of difference in

eligibility conditions. Be it one way or the other, it is evident that the

administration has sought to employ a higher number of degree holders at the

position of AE than diploma holders. In 1994, when the Recruitment Regulations

were introduced, 50 per cent of posts were for direct recruits, who were degree-

holders and in the balance 50 per cent which was to be filled by promotees it can

be presumed that there must be some SAEs who were holding degrees. Thus, in

total more than 50 per cent of AEs were to be degree-holders. When these

Regulations were modified in 1997, 45 per cent of AEs were to be direct recruits

holding degrees, 10 per cent of AEs were to be degree-holding SAEs, and the

balance 45 per cent of posts were to be filled by degree/diploma holding SAEs.

Thus, it was stipulated that more than 55 per cent of AEs would be degree

holders. Similarly, in 2002, more than 50 per cent of the AE posts were to be

filled by degree holders (35 per cent of AEs were direct recruits holding degrees,

15 per cent of AEs were to be filled by degree-holding SAEs and the balance 50

per cent were to be filled by degree/diploma holding SAEs). The reason for the

increase in degree-holders for the post of AEs could be due to circumstances

such as the higher level of technical expertise required for the superior post,

increase in managerial and technical workload, and enhancement in supervisory

functions. It is not amiss to draw a conclusion that a higher educational degree,

coupled with stipulated years of experience, could bring in certain benefits to the

position of an AE that the management desires. In any case, it is not for this

Court to decide whether a higher educational qualification would fulfil the

objectives of the management, as long as the nexus between the educational

26
3 PART D

qualification and the need for higher efficiency is not absurd, irrational or

arbitrary. In a line of decisions, this Court has held that educational qualifications

may be linked to higher administrative efficiency and thus classification on this

basis is not in violation of Articles 14 and 16 of the Constitution.

39 The challenge before us however is not related to the classification made

in matters of regular promotion. In fact, as the record indicates, the SAEs have

not challenged the initial circulars dated 7 August 1997, or 20 February 2002

(which was challenged unsuccessfully before the High Court in another petition).

The issue before us solely deals with the restrictions imposed for promotion to

supernumerary AE posts.

40 The Oxford English Dictionary defines the term “supernumerary” as

“present in excess of the normal or requisite number”, or “not belonging to a

regular staff but engaged for extra work” 27. A “supernumerary post” is defined as

“a post exceeding the usual stated or prescribed number”28. The impugned

circular indicates that these supernumerary posts were created for removal of

stagnation amongst SAEs. Although that may be the stated goal of the impugned

circular, KMC has urged before this Court that the distinction in education

qualification for promotion has been made for the purpose of enhancing

administrative efficiency. It cannot be denied that SAEs once promoted to the

post of an AE in these supernumerary posts would be performing the task and

functions of an AE. Thus, it is not merely a change in the designation of an SAE

to an AE, but involves an increase in workload, supervisory functions, and

performance of the regular functions of an AE. Since that is the case, we do not
27 th
The Concise Oxford English Dictionary (Judy Pearsall ed., 10 ed, 1999)
28
P. Ramanatha Aiyar, THE LAW LEXICON, THE ENCYLOPAEDIC LAW DICTIONARY p. 1838 (Justice YV Chandrachud
(Former Chief Justice, Supreme Court of India) ed., 1997)

27
3 PART D

find any reason why the rationale underlying the need for higher degree-holders

in the AE cadre through regular promotion would not be applicable in the case of

supernumerary posts. In other words, could a challenge to the impugned circular

be sustained if, instead of providing different eligibility conditions, KMC had

provided for creation of a fixed number of supernumerary posts out of which a

proportion was reserved for degree-holder SAEs? We do not think so. By the

very reason that these posts are supernumerary and depend on the number of

eligible persons, a fixed number of positions could not have been anticipated. It is

perhaps for this reason that KMC sought to digress from the regular method of

granting promotion and opted to introduce separate eligibility conditions.

Therefore, we find that the separate eligibility conditions for promotion to

supernumerary AE posts on the basis of educational qualification is in line with

the past promotion practices of KMC and is not an unreasonable classification.

41 Even otherwise, we note that Clause 3 of the impugned circular provides

that these supernumerary posts would be adjusted as and when a vacancy

becomes available within the sanctioned posts of an AE. Further, Clause 5

stipulates that there would be no change in the Recruitment Regulations for the

posts of AE. What this means is that the regular promotion of degree or diploma

holder SAEs is not impacted by way of the impugned circular. As and when

vacancies arise in the sanctioned AE posts, the AEs holding supernumerary

posts would be subject to the Recruitment Regulations and the selection process

for promotion of an SAE to an AE. The supernumerary posts are personal to the

eligible AEs and will lapse on their being promoted on a regular basis as AEs or

ceasing to remain in service.

28
3 PART D

42 Another aspect to be considered is that while creating supernumerary

posts, KMC has not completely restricted the promotional avenues of diploma-

holder SAEs who have stagnated in their service. It has provided adequate

opportunity to them to advance in their career, although on different terms and

conditions. Thus, the promotional policy of KMC for supernumerary posts is not

irrational or arbitrary or to the detriment of diploma holder SAEs. In matters of

public policy and public employment, the legislature or its delegate must be given

sufficient room to decide the quality of individuals it seeks to employ as against

different positions. As long as these decisions are not arbitrary, this Court must

refrain from interfering in the policy domain.

E     Conclusion


43    Based on the discussion above, it is our view that the impugned circular

dated 3 July 2012 and the subsequent gradation list do not suffer from the vice of

arbitrariness and discrimination. Accordingly, we uphold the decision of the

Division Bench of the High Court and dismiss the appeal.

44 Pending applications, if any, shall stand dismissed.

……….………………………………………………..J.
[Dr Dhananjaya Y Chandrachud]

..…..….………………………………………………..J.
[Vikram Nath]

……..….………………………………………………..J.
[Hima Kohli]
New Delhi;

September 21, 2021
29



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