PETITIONER:
FOOD CORPORATION OF INDIA ETC.ETC.
Vs.
RESPONDENT:
OM PRAKASH SHARMA & ORS.
DATE OF JUDGMENT: 14/08/1998
BENCH:
S.C. AGARWAL, M. SRINIVASAN, A.P. MISRA
ACT
HEADNOTE
JUDGMENT
JUDGMENT SRINIVASAN, J.
Leave granted in S.L.P.
The Food Corporation of India (hereinafter referred to as Corporation) was established under the Food Corporation of India Act, 1945 (for short, the Act). Section 45 of the Act empowered the Corporation to make regulations for the purpose of giving effect to the provisions of the Act with the previous sanction of the Central Government. One of t he matters set out in sub-section 2 is ‘the method so appointment, the conditions of service etc. of the officer and employees of the Corporation other than the Secretary’. For the first time in 1971 F.C.I. (Staff) Regulations were framed. Prior to that all matters relating to the service of employees were governed by Office Manual.
2. Under the 1971 Regulation, category 3 ‘comprised inter alia the posts of Assistant Grade I (for short AG-I), Assistant Grade- II (for short AG-II), Assistant Grade-III (for short AG-III), Typist and Telephone Operator in the General Administration Cadre as well as in the Godown Cadre. The minimum educational qualification for the posts of AG I, AG II and AG III was graduation while it was matriculate for the other two posts. The mode of recruitment for the post of AG I was 100% promotion from the posts of AG II or Telex Operators failing which direct recruitment. The eligibility criterion was three years of service as AG II or Telex Operator. Th post of AG II was to be filled up by 100% promotion of those who had three years service as AG III, Typist or Telephone Operator failing which by direct recruitment.
3. On 1.5.1974 a circular was issued by the Corporation that it had been decided to make a differentiation at the time of first promotion from the recruiting grades between graduates and matriculates. According to the circular, the former would become eligible for promotion after three years of service while the latter would become eligible after five years of service. The circular also made it clear that promotions made in that manner will be made on provisional basis for the time being as a purely temporary measure and they may be regularised as son as formal amendment to the Regulations was made. On 22nd April, 1976 the F.C.I. (Staff) (30th Amendment) Regulations, 1976 was notified. It was deemed to have come into force on 1.5.74. That pertained to General Administration Cadre. Similarly F.C.I. (Staff) (43rd Amendment) Regulations, 1977 was notified on 10.2.77 with respect to Godown Cadre. The effect of the above amendments was to fix three years of service for graduates and five years of service for matriculates as eligibility criterion.
4. The validity f the amendments was challenged by four persons who were matriculates working as AG III in O.P. 1138/79 on the file of the High Court of Kerala. A learned Judge f that Court allowed the writ petition on 22.2.83 and quashed the same. The Corporation filed W.A. 430/1983 before a Division Bench of that Court. That appeal was withdrawn and dismissed. The 4th respondent in the writ petition who represented the graduates had filed W.A. 433/83 and it was pending.
5. Two similar writ petitions were filed before Andhra Pradesh High Court in W.P. Nos. 363 & 1168 of 1987 by nongraduates. Following the judgment of the Kerala High Court referred to above, the Andhra Pradesh High Court allowed the writ petitions. W.A. Nos. 905 & 907 of 1987 filed by the Corporation were dismissed by a Division Bench on 15.7.87. After long delay the Corporation filed petitions for special leave in this Court. This Court refused to condone the delay and dismissed S.L.P. (C) Nos. 9387-88/1988 on 9.4.90. The Corporation’s review petitions R.P. No. 449/93 was dismissed on 20.4.93.
6. Earlier in 1985, thirty non-graduates filed W.P. 2835/85 on the file of the High Court of Madras. That petition was dismissed by a single Judge on the ground that identical matter was already pending in Kerala High Court. The Petitioners filed W.A. 757/88 against the same. When the appeal was being heard, learned counsel for the Corporation stated on instructions that the amendment was withdrawn and consequential reliefs were given to the petitioners therein. In view of that statement, the Division Bench set aside the order passed in the writ petition and observed that no reliefs need be given to the petitioners by the Court. It was represented to the Bench that four of the writ petitioners were not given relief by the Corporation. The Bench permitted them to approach the authorities of the Corporation for appropriate reliefs. When such representations were not considered favorably those petitioners filed Contempt Application 301/91 to punish the officers of the Corporation for contempt. The Zonal Manager of the Corporation who was the 1st respondent therein filed a counter affidavit in which he stated in para 2 as follows:
"It is respectfully submitted that
the 43rd Amendment though was
resolved to be withdrawn by the
Board, the same was not withdrawn
for want of Gazette Notification to
this effect."
In para 4 the same averment was repeated. It was further added :
"The Headquarters have instructed
the Zonal Office to implement the
judgment of the Andhra Pradesh High
Court in W.P. Nos. 363 & 1168 of
1987."
The pendency of some subsequent proceedings in Kerala High Court and an order passed therein were cited as reasons for not complying with the order of the Madras High Court. The Division Bench did not accept the contentions of the Corporation and issued specific directions to promote the petitioners therein on the basis that the 43rd Amendment was withdrawn. Aggrieved thereby the Corporation filed SLP 16797/92 in this Court. We dismissed it by order dated 29.7.98.
7. In the meanwhile a Division Bench of the Kerala High Court took up for hearing W.A. 433/83 referred to by us in para 4 above. An order passed by the Corporation on 13.7.90 was produced before the Bench. It was stated in that order that a decision had been taken by the Southern Zone to implement the judgment of the Andhra Pradesh High Court in respect of Southern Zone including Kerala. In that situation the writ petitioners sought permission of the Court to withdraw the writ petition itself. Referring to the same, the Bench observed :
"It is in this background that Shri
Dandapani the learned counsel for
the contesting respondents, who are
the writ petitioners, sought
permission to withdraw the writ
petition, O.P. No. 1138 of 1979
itself in the light of the decision
taken by the Food Corporation of
India, to apply the decision of the
Andhra Pradesh High Court to the
entire Southern Zone. Counsel for
the Food Corporation of India
submitted that a decision having
been taken to repeal the impugned
amendments and to restore the
former provisions which treated the
degree holders and matriculates on
par for further promotion to the
Cadre of Assistants Grade III, it
becomes unnecessary for this Court
to examine the validity of the
impugned amended rules. In this
background, we see not good reason
for not according to the request of
the petitioners in the writ
petitions to withdraw the writ
petitions itself, the corporation
having taken the stand that the
amended rules would be repealed and
not given effect to. In view f the
decision of the Food Corporation of
India, what would stand revived
will be the old rules."
In such circumstances, the original writ petition was dismissed as withdrawn and the judgment of the single judge was set aside without expressing any opinion s to the correctness or otherwise thereof.
8. That order of the Kerala High Court was made on 26.11.90. On the same day, the Zonal Office of the Corporation issued Office Order No. 461/90/Esttt. I in the following terms :
"Consequent to the disposal of SLP
9387-88 of 1988 by the Supreme
Court in their order dated 9.4.1990
and HQRS decision to withdraw the
43rd Amendment from the Food
Corporation of India (Staff)
Regulations, 1971 vide their telex
message No. EP30 (10)/87 dated Nil
July 1990 and Telex Massage No. EP
16(4) dated 14.9.90, the following
officials are deemed to have been
promoted provisionally to the post
of Assistant Grade II (Deport) with
effect from the dates noted against
each."
[List of officials
omitted]...........................
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"Consequent to the retrospective
promotion to the post of Assistant
Grade II(Depot) the above mentioned
officials would be eligible for
refixation of their pay on notional
basis, but eligible for payment of
arrears only from the actual date
of joining in the post of Assistant
Grade II (Depot). The seniority of
the above officials in the post of
Assistant Grade II (Depot) would be
refixed and revised seniority list
published shortly."
Similarly another office Order N. 462/90/Estt.I was issued on the same day with another list of officials whose promotion was subject to Regional Vigilance Clearance.
9. The petitioner in W.P.(C) No. 20 of 1992 who belongs to the Godown Cadre in the South Zone has filed the writ petition challenging the said office orders. Besides praying for declaration that the said Office Orders are null and void ab initio, the petitioner prays also for declaring that the 30th and 43rd amendments still survive in the statute book, for issue of a mandamus restraining the respondents from rescinding the same and for declaring that the seniority list as it existed on 31.12.89 continued to hold good without prejudice to the content in of the petitioners that even the said list was not properly drawn.
10. Initially, the Corporation and the Zonal office (South Zone) of the Corporation were only made parties to the writ petition. Some non-graduates got themselves impleaded as respondents. By order dated 5.12.95, this Court, with a view to obviate multiplicity of proceedings, directed the writ petitioner to implead some or all of the non-graduates in the writ petition or some other nongraduates in a representative capacity, i.e. representing the body of non-graduates in the service of the Corporation all over the country. The petitioner filed an I.A. and the same was ordered on 8.1.96.
11. Even in 1988, a writ petition viz. C.W.P. 7160/88 was filed in the High Court of Punjab and Haryana by Some non-graduates challenging the seniority list prepared on the basis of 30th Amendment of the Regulations. The validity of the amendment was challenged. A single Judge of the High Court allowed the same by judgment dated 8.11.89 following the first judgement of the Kerala High Court and adopting the reasoning thereof. Some graduates were respondents therein. They did not challenge the judgment. But the Corporation filed LPA 635/90 against the judgment. The same was dismissed on 28.7.92 by a Division Bench which also pointed out that the graduate employees were not aggrieved by the judgment of the single Judge and thus the controversy did not survive. The Corporated has filed SLP(C) No. 7698 of 1993 against that judgment.
12. W.P.(C) No. 174/95 has been filed in this Court under Article 32, Constitutions of India by some nongraduate employees who were appointed as typist/telephone operators in 1971 t 1973 in the Northern Zone challenging the validity of the amendments. According to them the Corporation having decided to implement the decision of the Andhra Pradesh High Court in the South Zone cannot discriminate against the employees in the other zones and apply the amended regulations to them.
13. All the above three matters are thus concerned with the same controversy relating to the validity of the 30th and 43rd amendments of the regulations. When these matters came up for hearing on 21.4.98, this Court took note of the fact that the relevant material regarding the considerations which weighed with the Corporation in making the change in amendments. On the other hand it was stated repeatedly in the said counter affidavit that the Corporation had decided to implement the judgment of the Andhra Pradesh High Court. In Paragraph 2 thereof, it was, averred, that Writ Appeal no. 430 of 1983 on the file of the Kerala High Court was withdrawn persuant to the decision of the Corporation to implement the judgment of the Andhra Pradesh High Court. It was also stated that the revision of the seniority list persuant to the implementation of the judgment of the Andhra Pradesh High Court could not be completed on account of a subsequent order of the Kerala High Court. It should be mentioned here that the subsequent order of the Kerala High Court which was passed in another writ petition challenging the revised seniority list was only to the effect that promotions made during the pendency of the writ petition would be subject to the result thereof. In short, the Corporation did not choose to place any material before the Court to justify the amendments. Strangely, no other graduate employee excepting the petitioner in writ petition no. 20 of 1992 has come before us to support the amendment. As observed by the Division Bench of the High Court of Punjab and Haryana, the Judgment of the Single Judge of that High Court in writ petition 7160 of 1988 was not challenged by the graduate employees who were parties thereto. It was only after this Court passed an order on 21.4.1998 directing the Corporation to file an additional affidavit and place the relevant materials which weighed with it in bringing about the impugned amendments, the Corporation filed an affidavit as stated earlier.
15. In the said affidavit, the following passages are relevant :-
"It is submitted that part-II of
Appendix-I of the FCI (Staff)
Regulations provided that the mode
of recruitment in the post of
Assistant Garde-I as 100% promotion
failing which by direct recruitment
and that the eligibility criteria
was 3 years as Assistant Grade-II
or Telex Operator. The mode of
recruitment for the post of
Assistant Grade-II was 100%
promotion failing which direct
recruitment and that the
eligibility criteria is 3 years as
Assistant Grade -III or as Typist
or as Telephone Operators. A copy
of the said part-II of the
Appendix-I to FCI (Staff)
Regulation, 1971 is annexed
herewith and marked as Annexure -
A/A/-e. It is submitted that as
such the Typists and Telephone
Operators were equated with
Assistant Grade-III for the purpose
of promotion to Assistant Grade-II
and the Telex Operators were
treated at par with Assistant
Grade-II for the purposes of
promotion to Assistant Grade-I. It
is submitted that as such not only
promotional avenues were opened for
the first time too Telex Operators,
Typist and Telephone Operators.
(who were till then available only
for persons working as Assistant
Grade-II or Grade-III
respectively). It is submitted that
in other words, the promotional
avenues which were exclusively
available to Assistant Grade-II or
Grade-III respectively, were now
open to others, namely the Telex
Operators, Telephone Operators even
without prescribing any quota for
each of the categories made
eligible for such promotions. It is
submitted that an anomalous
situation had arisen as a result,
in as much as persons who are
better qualified (minimum
qualifications for being appointed
as Assistant Grade-III is
graduation) were treated equal to
persons who are less qualified
(minimum qualifications for
appointment as Telephone Operators
or Typists is Matriculation) for
the purposes of promotion. It is
submitted that the purpose of
prescribing the minimum
qualification as Graduation for
appointment as Assistant Grade-III
got defeated and in effect the
entry point became ‘Matriculation’
for those who entered the cadre as
Typists or Telephone Operators. It
is submitted that it was realised
that it was not correct to equate
the persons wh have higher academic
qualifications (graduation) needing
4 more years of academic pursuit
with these having lesser academic
qualifications i.e. Matriculation.
It is submitted that as such, it
was felt necessary either t create
quotas or prescriber higher
experience for those who are
academically less qualified."
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"It is submitted that it was felt
that the non-existence of any quota
resulting in treating the Typists
or the Telephone Operators, who are
generally Matriculate, at per with
Assistant Grade III (whose minimum
qualification was Graduation), was
not only incorrect but also
affected the efficiency of the
ministerial staff to a great
extent."
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"It is submitted that it was felt
that the differential criteria
should be provided for the purpose
of promotion for the category of
Assistant Grade-III, Typist,
Telephone Operator since Assistant
Grade-III are graduates and the
Telephone Operators, Typists are
matriculates."
16. There is no attempt made in the affidavit to show that the nature of the work in the posts of AG-I or AG-II was such that it requires higher efficiency which could be expected only from graduates and not from non-graduates. In other words, there is nothing in the said affidavit to establish a nexus between the amendments and the alleged object of higher efficiency in the promotional posts of AG-I or AG-II. In the counter affidavit filed by a non-graduate respondent in the writ petition as early as in October, 1996, it was categorically stated that the duties to be carried ut by the persons holding the posts of AG-I and AG- II could be performed with equal efficiency by graduates as well as non-graduates. It was stated that the nature of the work in the two posts did not warrant a classification as graduates or non-graduates. It was pointed out that all the posts of AG-I and AG-III are clerical, non-selectional and non managerial. Along with the counter affidavit, the ‘job descriptions’ of the three posts was also filed as an annexure. A perusal thereof shows that the nature of the work is not such as to make differentiation between graduates and non-graduates. It is seen from the ‘job descriptions’ that a person holding the post of AG-III could be assigned with the same work as required to be performed by AG-I and AG-II but under close and immediate supervision of the supervisor. The Typists and Telephone operators are also expected to perform other duties listed for AG-III as required by their superiors. It is thus clear from the ‘job descriptions’ that the duties performed by the typists and Telephone Operators as well as AG-III are similar in nature excepting that the typists and Telephone Operators are also attending to technical work on account of their technical qualification. None of the above matters has been touched upon by the Corporation in the additional affidavit filed as late as in May, 1998. This aspect has been rightly commented upon by learned counsel of the non-graduates.
17. In the counter affidavit filed on behalf of the non-graduates with our permission in the course of hearing in reply to the additional affidavit of the Corporation, it is reiterated that the non-graduates are performing the same duties as the graduates. The following passages in the said counter affidavit are relevant :-
"The job description of Assistant
Grade III and Assistant Grade II
annexed by the deponent in his
counter affidavit filed in the writ
petition is marked as Annexure C-9
which is in the paper book of the
writ petition from page Nos. 394 to
410. No justification whatsoever
has been offered to the impugned
amendments except a vague and self
serving statement that efficiency
was "affected" or "vitiated" to a
great exrtent. The burden which the
food Corporation of India was
agreed to discharge was to show how
having regard to the nature of
duties of the pst, efficiency was
affected. This burden has not even
been attempted to be discharged.
The picture presented in para 3 of
the affidavit tends t present a
misleading picture as if the 30th
amendment was introduced in order
not to equate the typists and
telephone operators with such of
those AG.III [Gen] who possess
qualification of graduation. These
matriculate Asst. Gr.III [Gen]
[Depot] were/are performing the
duties of AG.III on par with
Assistants Gr. III who possess
qualification of Graduation. The
duties and responsibilities of all
the AG.III are one and the same and
the salary paid is also the same.
It is reiterated that the typists
apart from typing work are also
attending to the work of AG.III as
required in the job description.
The very fact that the work of
AG.III [G] [Depot] are being
carried out smoothly irrespective
of officials possessing
qualification f matriculation or
graduation until this day clearly
demonstrates that the qualification
of matriculation is adequate to
carry ut the nature of work
prescribed for Assistant Grade III
[Gen] and Assistant Grade III
[Depot]. The nature of work
prescribed in the job description
vouches for this argument. It is
also submitted that had the FCI
management not been satisfied with
the efficiency of the officials
with qualification of matriculation
as stated in the 3rd para of the
affidavit it would not have
gradually enhanced the quota from
10% to 20% and then to 30% for
category IV employees [with minimum
qualification of matriculation] for
promotion to the post of AG. III
(annexed as Annexure A-I).
The deponent further submits that
prior tot he establishment of Food
Corporation of India, the employees
were working in the Food Department
and the entry level post, i.e.,
Junior Clerk [which is equal to
Assistant Grade - III] the
qualification prescribed was only
matriculation."
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"That it is relevant to mention
that pursuant to the orders passed
by the Kerala, Madras and Punjab
and Haryana High Courts and the
Delhi High Court in its Judgment
dated 11.01.1994 and 04.06.1981 in
C.W.P. No. 3599 of 1993 and 4681 of
1993, the respondent Food
Corporation of India-North zone
issued office order dated 02.8.1995
and 11.08.1995 revising the
seniority of Assistant Grade III
[Min]/Typists numbering about 1206
rectifying the injustice created by
the impugned amendments to the
employees and similarly placed like
the deponent in the North Zone as
per the old regulations and only
the employees of South Zone are
suffering because of the inaction
of the authorities in South Zone.
It may be relevant to mention that
the revision is subject to the
outcome of the petitions pending
before this Hon’ble Court. A copy
of the office order dated
02.08.1995 and 11.08.1995 are
annexed herewith and marked as
ANNEXURE A-3 [Collectively].
That the respondent Food
Corporation of India have annexed
annexures to the Additional
Affidavit which are not at all
relevant to the present dispute and
nothing has been shown by them
which would require such amendments
to be carried out with
retrospective effect. In fact,
matriculates of FCI are holding the
jobs of Assistant Managers and
Deputy Manager [General]/District
managers which is three and four
steps respectively above the
Assistant Grade-III level which is
the post in dispute in the present
proceedings. It is also submitted
that the post of Assistant Manager
and Deputy Manager are selection
posts whereas the post of AG.III
and AG.II are non-selection posts.
This clerical job of Assistant
Grade III and Assistant Grade II
can certainly be performed by
matriculates with utmost efficiency
when persons are thrust for such
higher job, viz., Assistant
Manager/Deputy Manager who are only
matriculates. Extracts of all India
integrated seniority list of
Assistant managers [Gen]./Dept. as
on 1984 is annexed as ANNEXURE A-4
and extract of all India integrated
seniority of Deputy Managers
[Genl.]/District Managers is
annexed as ANNEXURE A-5."
18. Learned counsel for the petitioner in the writ petition and learned counsel for the Corporation have contended that the differentiation between a graduate and non-graduate in the matter of promotion is valid and in this case the same has been done by the impugned amendments in order to achieve higher administrative efficiency. Per contra the submissions made by a learned counsel for nongraduates are threefold : (i) The amendments are arbitrary in the facts and circumstances of this case and violative of Articles 14 and 16 of the Constitution. (ii) The amendments are invalid in so far as they are given retrospective effect so as to affect the promotion of nongraduates who became eligible for consideration for promotion by completing three years service as AG-III, Typist or Telephone operator before the amendment of the regulations. (iii) The amendments should be read down to apply only to non-graduates who are working as Typists or Telephone operators and not to those who were working as AG. III having been promoted as such from category IV. The aforesaid second and third contention have been advanced only in the alternative to the first contention.
19. Our attention has been drawn to S.L. SACHDEV AND ANOTHER VERSUS UNION OF INDIA AND OTHERS (1980) 4 SCC 562. It was held therein that once cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances. It is observed that different tests should not be prescribed for determining their respective promotional opportunities and that too solely with reference to the source from which they were drawn. It was found on the facts that the duties, functions and responsibilities of all the UDCs in the Saving Banks Control Organisation and Savings Bank Interval Check Organization were identical and they were all in the same cadre drawing the same pay in the same grade and therefore different tests should not b laid for their promotion.
20. Learned counsel for the non-graduates referred to Kumari Shrilekha Vidyarthi and Other Versus State o U.P. and Others (1991) 1 SCC 212, wherein it was held that once it is shown that the impugned State action is uniformed by reason in as much as there is not discernible principle on which it is based, the burden would shift to the State to repel the attack by disclosing the material and reasons which held to the action being taken in order to show that it was an informed decision which was reasonable.
21. It is by now settled by several decisions of this Court that educational qualification is a proper basis of classification for promotion. In the State of Jammu & Kashmir Versus Shri Triloki Nath Khosa and Others (1974) 1 SCC 19, it was held that classification on the basis of educational qualifications made with a view to achieving administrative efficiency can not be said to rest on any fortuitous circumstance. The Constitution Bench which decided the case took care to add that one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification.
22. In Mohammad Shujat Ali and Others Versus Union of India and Others (1975) 3 SCC 76, another Constitution Bench referred to the earlier rulings of this Court including Triloki Nath Khosa & Others (1974) 1 SCC 19 and stated the law thus :
"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 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 a has
to be applied in such case on its
peculiar facts and circumstances."
23. In Punjab State Electricity Board, Patiala & Another Versus Ravinder Kumar Sharma & Others (1986) 4 SCC 617, the challenge was of fixation of quota between diploma holders and non-diploma holders among linemen for promotion to Line Superintendent. Placing reliance on a passage in the judgment in Mohd. Shujat Ali & Ors. vs. U.O.I. & Ors. (1975) 3 SCC 76, the Curt upheld the judgment of the High Court and the courts below which struck down the fixation of quota for promotion. The Bench did not however, make any reference to Trilki Nath Khsa & Ors. (1974) 1 SCC 19.
24. In Roop Chand Adlakha & Ors. Vs. Delhi Development Authority & Ors. 1989 Supp. (1) SCC 116, this Court considered all the earlier cases n the subject and held that prescription of a longer period of experience for the diploma holders to be eligible for promotion to a cadre to be made from graduates and diploma holders was not violative of equality class. On the facts it was found that a report of an Expert Committee was taken into consideration for prescribing the requisite qualification. The Court took note of the fact that there may be cases where the differences in the educational qualification may not be sufficient to give any preferential treatment to one class of candidates as against anther. The Court said that whether the classification is reasonable or not must necessarily depend upon facts f each case and the circumstances obtaining at the relevant time.
25. In N. Abdul Basheer & Ors. Vs. K.K. Karunakaran & Ors. 1989 (Supp (2) SCC 344, the Court held that ordinarily it is for the Government to decide upon the consideration which in its judgment should underlie a policy to be formulated by it. But if the considerations are such as prove to be of no relevance to the object of the measure framed by the government it is always open to the court to strike down the differentiation as being violative of Articles 14 and 16. On the facts of the case it was found that the conditions of employment and the incidents of service recognised no distinction between graduate and nongraduate officers and for all material purposes they were effectively treated as equivalent. It was pointed out that the history of the evolution of the Kerala Excise and Prohibition Subordinate Service had shown no uniformity either in approach or in object and that a consistent or coherent policy in favour of graduates was absent. It was also pointed that the cadre was one and graduates and nongraduates were equal members of the same. Their pay was found to be the same and the nature of the duties whether graduate or non-graduate was identical. Hence, it was held that the prescription of ratio dividing the quota of promotion between graduates and non-graduates was invalid as it violated of Articles 14 and 16 of the Constitution.
26. In P. Murugesan & Ors. Vs. State of Tamil Nadu & Ors. (1993) 2 SCC 340, this Court pointed out that since the decision in Triloki Nath Khosa & Ors. (1974) 1 SCC 19 this Curt had been holding uniformly that even where direct recruits and promotees were integrated into a common class, they could for purposes of promotion to the higher cadre be classified on the basis of educational qualifications. On the facts, it was found that the degree holders and diploma holders represented two different categories and since 1969 they were treated differently in the matter of pay, designation and in the matter of promotion though they were discharging identical functions and duties. It was also found that the ratio 3:1 had been in vogue between graduates and diploma holders since prior to 1965 and it was therefore permissible to the rule making authority if it thought it necessary in the interest f administration to limit the promotional chances of non-graduates to one out of four vacancies on the basis of academic qualifications.
27. In T.R. Kothandaraman & Ors. Vs. Tamil Nadu Water Supply & Drainage Board & Ors. (1994) 6 SCC 282, this Court reiterated that higher educational qualification is a permissible basis of classification but the acceptability thereof will depend on the facts and circumstance of each case. In that case it was found that differentiation between degree holders and diploma holders was ancient and the former were given different designation and Gazetted status and higher scale of pay whereas diploma holders did not have such benefits. In such circumstances the Court Said :
"The aforesaid shows that higher
educational qualification has
relevance insofar as the holding of
higher promotional post is
concerned, in view of the nature of
the functions and duties attached
to that post. The classification
has, therefore, nexus with the
object to be achieved. This apart
history also supports the
differentiation sought to be made
by the rule in question. We,
therefore, uphold the
classification as valid."
28. One of us (Justice Agrawal) spoke for the Division Bench which decided Rajasthan State Electricity Board Accountants Association, Jaipur Vs. Rajasthan State Electricity Board & Anr. (1997) 3 SCC 103. The entire case law was traced in the judgment and it was held that educational qualifications could be made the basis for classification of employees in State Service in the matter of pay scales, promotion, etc. On the fact a and circumstances of that case, the court upheld a reservation of 25% vacancies for candidates possessing the prescribed additional qualifications and prescription on longer length of service for those who did not possess such qualifications for the purpose of promotion.
29. An analysis of the aforesaid rulings shows that the validity of the classification has to be judged on the facts and circumstances of each case. We have already pointed out that in the facts of the present case no material has been placed before us by the Corporation to Justify the amendments introducing a classification between graduates and non-graduates. We have also referred to the conduct of the Corporation which chose to accept the judgment of Andhra Pradesh High Court an d implement the same on the basis of which the Board decided to withdraw the amendments and representations were made to that effect in the High Courts of Kerala and Madras. As stated earlier, even in the affidavits filed in this Court, the Corporation has referred to the decision of the Board to withdraw the amendments.
30. In such circumstances we hold that the amendments to the Regulations making a differentiation between graduates and non-graduates in the matter of promotion for the posts of AG-I and AG-II offend the equality clause and are therefore unconstitutional.
31. In the view we have expressed above it is unnecessary for us to consider the alternative contentions put forward by the non-graduates with reference to the retrospective operation of the rule and the nonapplicability of the rule to non-graduates holding the posts of AG-III. We would, however, for the sake of completion set out the list of decisions cited by learned counsel in support of the contention that the amendments are invalid insofar as they seek to have retrospective affect : 1. T.R. Kapur and Others Versus State of Haryana & Ors. 1986 (Supp) SCC 584. 2. P.D. Aggarwal and Others Versus State of U.P. and Others (1987) 3 SCC 622. 3. K. Narayanan and Others versus State of Karnataka and Others 1994 Supp. (1) SCC 44 4. Union of India and Others versus Tushar Ranjan Mohanty and Others (1994) 5 SCC 450. 5. Chairman, Railway Board and Others versus C.R. Rangadhamaiah and Others (1997) 6 SCC 623.
32. The last of the above cases has been decided by the Constitution Bench in which on of us (justice Agrawal) was member and he spoke for the Bench. It will be advantageous to quote the following passage in that judgment.
"In many of these decisions the
expressions "vested rights" or
"accrued rights" have been used
while striking down the impugned
provisions which had been given
retrospective operation so as to
have an adverse effect in the
matter of promotion, seniority,
substantive appointment, etc., of
the employees. The said expressions
have been used in the context of a
right flowing under the relevant
rule which was sought to be altered
with effect from an anterior date
and thereby taking away the
benefits available under the rule
in force at that time. It has been
held that such an amendment having
retrospective operation which has
the effect of taking away a benefit
already available to the employee
under the existing rule is
arbitrary, discriminatory and
violative of the rights guaranteed
under Article 14 and 16 of the
Constitution."
33. If the principle laid down in the above judgment is applied here, there is no doubt that the impugned amendments in the present case can not operate retrospectively.
34. In the result, the impugned amendments are struck down as unconstitutional. The appeal filed by the Corporation and the Writ Petition (C) No. 20 of 1992 fail and are hereby dismissed. In Writ Petition No. 174 of 1995 prayer B is unnecessary and therefore negatived. The parties will bear their respective costs.