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PETITIONER:

V. J. THOMAS AND ORS.

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT23/04/1985

BENCH:

DESAI, D.A.

BENCH:

DESAI, D.A.

MISRA RANGNATH

CITATION:

1985 AIR 1055 1985 SCR (3) 881

1985 SCC Supl. 7 1985 SCALE (1)1068

CITATOR INFO :

R 1988 SC2073 (20)

F 1989 SC1256 (4)

ACT:

Civil Service-Telegraphic Engineering Service (Group

Posts) Recruitment Rules, 1981, Note to sub-clause (4) of

Appendix I-Constitutional validity of.

HEADNOTE:

Clause (1) in Appendix I to the Telegraphic Engineering

Service (Class II) Recruitment Rules, 1966 (1966 Rules, for

short), provided that promotion of a Junior Engineer to the

post of Assistant Engineer shall be entirely by promotion on

the basis of selection of Junior Engineers through a

qualifying departmental examination. Sub-clause (1) provided

that the departmental qualifying examination shall be open

to Junior Engineers who were recruited and absorbed in that

grade against the vacancies of a year, ordinarily not less

than five years prior to the year of announcement of the

said examination. Sub-clause (4) of Appendix I to the

Telegraphic Engineering Service (Group Posts) Recruitment

Rules, 1981 (1981 Rules, for short) which superseded the

1966 Rules envisaged a qualifying- cum-competitive

examination for promotion to the post of Assistant

Engineers. and the Note appended to sub-cl. (4) provides

that for a period of 2 years after the commencement of the

1981 Rules, the first two examinations shall only be

competitive for which the eligibility shall be restricted to

only those officers who have already qualified in the

Departmental Qualifying Examination held before the

commencement of these Rules."

The appellants/Junior Engineers, who were recruited in

the year 1973, challenged in the High Court the

constitutionality of the Note appended lo clause (4) of

Appendix I to 1981 Rule 5 on the ground that note 4 appended

to clause I introduces discrimination in that Junior

Engineers Or 1972 and prior batches will alone be able, if

they had cleared the qualifying examination, to take the

competitive examination which would be held under 1981 Rules

and as only the competitive examination was to be held,

Junior Engineers of 1973 and subsequent batches, even if

they have put in five years of qualifying service, would be

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denied an opportunity to take the examination, and that this

is an invidious manner of denying them the opportunity to

take the examination and thereby deny them equality of

opportunity in the matter of promotion. The learned Single

Judge held that the Note to clause (4) of Appendix I to the

1981 Rules was ultra vires. On appeal by the respondent

Union of India, the Division Bench of the High Court held

that the Note was not ultra Vires.

882

Dismissing the appeal by the appellants, the Court,

^

HELD: (I) By sheer passage of time, this appeal and

even the main petition have become infractions. Even in

service jurisprudence the clock of history, sometimes,

cannot be put back and even if it is found that the

respondents have committed an error in implementing the

statutory rules no relief can be granted. This is one such

case. [885F-G]

(2) If by 1982, nearly 4,000 Junior Engineers of pre-

1973 batches had become eligible for taking competitive

examination, the department would be perfectly justified in

keeping the examination open only to persons who have put in

such long service and leaving others to wait for the next

examination. If for taking examination this aspect

introduces classification, it is based on rational and

intelligible differentia which has a nexus to the object

sought to be achieved. By the note, for a period of two

years only pre-1973 Junior Engineers who had cleared

qualifying examination were given a chance to take

competitive examination. If this introduces a

classification, it is valid. It caters to a well-known

situation in service jurisprudence that there must be some

ratio of candidates to vacancies. And it is based on long

experience as a rational basis for classification. Viewed

from this angle, there is nothing in the policy underlying

the note to rule (43 as being either discriminatory or

arbitrary or denying equality of opportunity in the matter

of promotion. lt had the desired effect of not having glutt

of Junior Engineers taking examination compared to fewer

number of vacancies. Length and experience were given

recognition by the note. The promotion can be thus by stages

exposing the promotion; l avenue gradually to persons having

longer experience. This seems to be the policy underlying

the note and therefore there is nothing improper or

unconstitutional in it.

[888D-G]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2183 of

1984.

From the Judgment and Order dated 28.3.1984 of the

Kerala High Court in W. P. No. 131 of 1982.

. M. K. Ramamurthi, V. J. Francis and N. M. Popli for

the Appellants.

G. D. Gupta, Ms. Halida Khatun, Subba Rao, R. N.

From the Judgment and Order dated 28.3.1984 of the

Kerala High Court in W. P. No. 131 of 1982.

Poddar, Ms. Subhadra, Ms. Alka, B. B. Tawaklcy and Mrs.

Urmila Kapur for the Respondents.

The Judgment of the Court Was delivered by

DESAI, J. Chagrined by the failure of the attempt

to pressurise junior engineers to boycott the examination

and further irritated by the holding of the examination the

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appellants have knocked at the

883

doors of this Court, putting forth utterly unsustainable

contentions.

Appellants are junior engineers in the Telegraph Wing

of the Post & Telegraph Department. The next avenue of

promotion for a Junior Engineer is the post of Assistant

Engineer. Promotions were governed by Telegraphic

Engineering Service (Class Il) Recruitment Rules, 1966 (

'1966 Rules' for short ). By these rules Telegraphic

Engineering Service ( Class Il ) was formed. The Rules were

to apply to posts as specified in Clause (I) of the Schedule

which specified the post of Assistant Engineer and other

equivalent posts having allied designations. Clause (I) in

Appendix I to the 1966 Rules provides that recruitment to

the service shall be entirely by promotion on the basis of

selection of Junior Engineers through a qualifying

departmental examination. An approved list shall he'

prepared by a duly constituted Departmental Promotion

Committee, by selection from amongst the officials who

qualifying the departmental examination. Sub-Clause (4)

provided that the departmental qualifying examination shall

be open to Junior Engineers who fulfill, amongst others, the

condition specified therein. It reads as under:

"Those recruited and absorbed in that grade

against the vacancies of a year, ordinarily, not less

than five years prior to the year of announcement of

the said examination.

These rules were in force till superseded by

Telegraphic Engineering Service (Group Posts) Recruitment

Rules, 1981 ('1981 Rules' for short) enacted in exercise of

the power conferred by the proviso to Article 309 of the

Constitution with effect from May 7, 1981. The controversy

centers round the Note appended to sub-clause (4 of Appendix

I of 1981 Rules which reads as under:

"40 There shall be normally one examination,

consisting of two parts called Qualifying-cum-

Competitive Examination for promotion to the Service

and shall be held at least once in a calendar year in

the manner and in accordance with the syllabus

prescribed in Appendix Ill to these rules.

Note: After the commencement of these rules, the

first two examinations shall only be competitive for

which the eligibility shall be restricted to only those

officers who have

884

already qualified in the Departmental Qualifying

Examination held before the commencement of these

rules."

Appellants were recruited as Junior Engineers in the

year 1973. ln other words, they belong to 1973 batch. Their

grievance is that they have completed five years of service

which conferred on them eligibility to appear at an

examination which was to be held under 1966 Rules. 1966

Rules contemplated only one examination styled as Qualifying

Departmental Examination. 1981 Rules which superseded 1966

Rules provide for one examination to be held in two parts

namely Qualifying Examination and Competitive Examination.

Before one is permitted to take a Competitive Examination he

has to clear Qualifying Examination. In short, if one has

not qualified at the Qualifying Examination he can not take

the Competitive Examination. The appellants' grievance is

that from 1973 to 1982 or to be specific after 1978 when

they became eligible to take Qualifying Examination no

Qualifying Examination was held till May 7, 1981 when 1966

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Rules were superseded by 1981 Rules which introduced the

concept of Competitive Examination which could alone be

taken after in qualifying the Qualifying Examination and for

a period of two years as per the Note appended to clause (4)

Qualifying Examination was not to be held. The contention is

that this is an invidious manner of denying them the

opportunity to take the examination and thereby deny them

equality of opportunity in the matter of promotion.

Appellants accordingly filed O.P. No. 5714/81 under

Art. 226 of the Constitution in the High Court of Kerala

impugning the constitutionality of the Note appended to

clause (4) of Appendix I to 1981 Rule.A learned Single Judge

of the High Court, before whom the petition came up for

hearing, held that the policy reflected in the Note appended

to clause (4) of Appendix I to 1981 Rules is irrational as

it has no reasonable connection with the needs of the office

or the object sought to be attained.A direction was given

that the Note shall be applied to the appellants. By the

judgment rendered on March 9, 1982, the learned Judge gave a

further direction that the department can either hold the

over-due qualifying examination of 1980 or it can hold the

qualifying-cum-competitive examination but it must be done

forthwith so that the appellant who were petitioners before

the High Court may not be altogether

885

excluded from the examination or examinations to be held.

The respondents to the writ petition, the Union of

India and others filed Writ Appeal No. 131 of 1982 which

came up before a Division Bench of the High Court. The

Division Bench disagreed with the learned Single Judge

observing that the Note to Rule 4 is not ultra-vires but

this was subjects to the further directions given by the

Division Bench. Taking note of the fact that in the

meantime, a competitive examination was conducted, a

direction was given that the result be published and the

candidates who are declared successful in the examination

should be appointed to 33-1/3% of the vacancies which arose

between May 7, 1981 and May 7, 19 82.A further direction was

given that the second competitive examination contemplated

in note to clause (4) must be conducted after a qualifying

examination as envisaged in 1966 and/or 1981 Rules is

conducted within a period of six months from the date of the

judgment and all those examinees found declared successful

at the qualifying examination be permitted to take the

competitive examination which must be held within six months

from the date of the result of the earlier examination.A

direction was given that the candidates declared successful

at the competitive examination be appointed to 33-1/3% quota

of posts in the vacancies that arose between May 7, 1982 and

May 7, 1983. There was some further directions which are

hardly material for the present purpose. The writ appeal was

disposed of in these terms. Original petitioners aggrieved

by the decision of Division Bench have filed this appeal by

special leave.

By sheer passage of time, this appeal and even the main

petition have become infructuous. Even in service

jurisprudence the clock of history, sometimes, cannot be put

back and even if it is found that the respondents have

committed an error in implementing the statutory rules no

relief can be granted. This is one such case.

Appellants are Junior Engineers of the 1973 batch

belonging to the service styled as Telegraphic Engineering

Service (Class II) re-designated as Telegraphic Engineering

Service (Group Posts). Appellants as Junior Engineers can

look forward to become Assistant Engineers by promotion.

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Indisputably, the recruitment to the post of Assistant

Engineer in the service is by promotion from

886

the cadre of Junior Engineers. Under the 1966 Rules, Junior

Engineers would become eligible for promotion on qualifying

at a qualifying examination. The eligibility criterion for

taking the examination was service of five years. Appellants

who are Junior Engineers of 1973 batch became eligible for

taking the examination that may be held in 1978 and onwards.

Once in November, 1980 and another in January, 1981,

programme of holding qualifying examination, where 1973

recruits could have appeared, was announced but subsequently

cancelled and on May 7, 1981, 1966 Rules were superseded by

1981 Rules.

1981 Rules envisaged a qualifying-cum-competitive

examination. Eligibility criterion for taking competitive

examination was successful clearance of qualifying

examination. Therefore, unless a qualifying examination is

held one would have no chance to take competitive

examination. For 1973 recruits no qualifying examination is

held. In 1981 Rules by a note appended to clause (4) of

Appendix 1, it was provided that the next two examinations

under 1981 Rules would only be competitive examination. The

sum total of these developments would certainly come in the

way of appeallants who are of 1973 batch from taking

competitive examination and unless they qualify at that

examination they would not be eligible for promotion to the

post of Assistant Engineer.

In 1982 a competitive examination was held. Junior

Engineers who were recruited prior to 1973 and who had

qualified at the qualifying examination held in August 1980

could appear at this competitive examination. As Junior

Engineers of 1973 and sub" sequent batches were not admitted

to qualifying examination held in 1982 and as no qualifying

examination was held in November 1980 and January 1981 and

as two examinations under the 1981 Rules were only to be

competitive examination, certainly they have been denied an

opportunity to take the examination. Appellants who

similarly situated persons tried extra-constitutional

methods to pressurise the powers that be, from holding the

qualifying examination and subsequently from declaring its

results. This Court had to interpose to put down such

pressure tactics by a mandatory direction given at an

interim stage that the results of the examination already

held must be declared. We are informed that the results

have been declared.

887

Mrs. Urmila Kapoor, learned counsel represented one

such successful candidate. Even though the results are

declared, the follow-up action of promotion and appointment

has not been taken. We propose to give appropriate

directions in this matter.

In the backdrop of these facts, can it be said that

the appelIants have been victimised or subjected to

discriminatory treatment or have been denied equality of

opportunity in the matter of pro motion. Appellants do not

question the legality of rules which prescribe a qualifying-

cum-competitive examination for becoming eligible for

promotion to the post of Assistant Engineer. Their grievance

is that note 4 appended to clause I introduces

discrimination In that Junior Engineers of 1972 and prior

batches will alone be able, if they had cleared the

qualifying examination, to take the competitive examination

which would be held under 1981 Rules and as only the

competitive examination was to be held, Junior Engineers of

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1973 and subsequent batches, even if they have put in five

years of qualifying service, would be denied an opportunity

to i take the examination. The learned Single Judge of the

High Court held the note to be ultra-vires. We find it

difficult to agree with the view of the learned Single Judge

in this behalf. However the Division Bench has clearly

opined that the note is not ultra-vires.

Mr. Ramamurthy, learned counsel for the appellants

contended that the note inheres the pernicious tendency of

denying equality of opportunity in the matter of taking

examination because it permits the department to provide a

bottleneck coming in the way of Junior Engineers of the 1973

batch from taking the competitive examination by not holding

the qualifying examination. We see nothing wrong in the

policy disclosed by the note. lt was pointed out that by

1982 nearly 7, 000 Junior Engineers had become eligible for

taking competitive examination. There was some dispute about

the figure but we are prepared to accept the figure as given

by Mr. Ramamurthy, learned counsel that 4, 000 Junior

Engineers of pre- ` 1973 batch were qualified for taking

competitive examination. Mr. Ramamurthy contended that if

the eligibility criterion is five years of service DO

artificial road-block could be created so as to come in the

way of such qualified Junior Engineers from taking the

examination. As an additional string to the bow, it was

submitted that if the purpose of holding a competitive

examination is to select best all eligible persons must be

permitted to take the examination and ll

888

no artificial barrier need to be created. It was submitted

that not holding of the qualifying examination creates such

an impermissible road-block in the way of Junior Engineers

of 1973 and subsequent batches from taking competitive

examination.

If by 1982, more than 4, 000 Junior Engineers of pre-

1973 batch had become eligible to take the examination and

if the accumulated number of vacancies was around 300, it is

difficult to accept the submission of Mr. Ramamurthy that

everyone who has just put in five years of service must be

permitted to take the examination. It is a known-principle

of service jurisprudence that even though mini mum

eligibility criterion is fixed enabling one to take the

examination yet the examination can be confined on a

rational basis to recruits upto a certain number of years.

That constitutes recognition of long experience and not

permitting some irate junior to score a march. If by 1982,

nearly 4, 000 Junior Engineers of pre-1973 batches had

become eligible for taking competitive examination, the

department would be perfectly justified in keeping the

examination open only to persons who have put in such long

service and leaving others to wait for the next examination.

If for taking examination this aspect introduces

classification, it is based on rational and intelligible

differentia which has a nexus to the object sought to be

achieved. By the note, for a period of two years only pre-

1973

Junior Engineers who had cleared qualifying examination

were given a chance to take competitive examination. If this

introduces a classification, it is valid. It caters to a

well-known situation in service jurisprudence that there

must be some ratio of candidates to vacancies. And it is

based on long experience as a rational basis for

classification. Viewed from this angle, we find nothing in

the policy underlying the note to rule (4) as being either

discriminatory or arbitrary or denying equality of

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opportunity in the matter of promotion. It had the desired

effect of not having a glutt of Junior Engineers taking

examination compared to fewer number of vacancies. Length

and experience were given recognition by the note The

promotion can be thus by stages exposing the promotional

avenue gradually to persons having longer experience. This

seems to be the policy underlying the note and we see

nothing improper or unconstitutional in it.

However the situation has materially changed. More than

4 years elapsed sine the note has appeared- One examination

is

889

a ready taken. Even Junior Engineers of 1973 batch have by

now put in more than 12 years of service. Therefore while

upholding the note and consequently rejection the appeal we

propose to give the following directions to remove the

irritants:

(i) Successful candidates of 1982 competitive

examination, results of which have been declared

pursuant to the directions of this Court, must be given

promotion as Assistant Engineer within a period of two

months from today.

(ii) The next qualifying examination permitting

all those who are eligible under the rules to appear at it

must be held latest by July 31, 1985 and the results be

declared by September 30, 1985.

(iii) The next competitive examination must be

held by December 31, 1985 and the results by declared

by February 28, 1986.

(iv) Consequent promotions keeping in view the

vacancies available must be given within a period of

three months after the result is declared.

This appeal is disposed of in these terms with no order

as to costs

M. L. A. Appeal dismissed.

890