Important Point
Amendments made to FCI (Staff) Regulations, 1971 by the 30th and 43rd Amendments making a differentiation between graduates and non-graduates in the matter of promotion for the posts of Assistant Grade I and Assistant Grade II offend the equality clause and are therefore unconstitutional.

Headnote:Service Law - Promotion-Classification on basis of educational qualification - FCI (Staff) Regulations, 1971 - FCI (Staff) (30th Amendment) Regulations, 1976 - FCI (Staff) (43rd Amendment) Regulations, 1977-Original regulation provided for promotion to post of Assistant Grade II from Assistant Grade III, Typist or Telephone operators having three years service-Qualification for post of Assistant Grade III is graduation which for Typist, Telephone Operator it is matriculation - 30th Amendment Regulations, 1976 and 43rd Amendment Regulations, 1977 fixed three years of service for graduation and five years service for matriculates as eligibility criteria for promotion-Non-graduates challenging classification - Duties performed by typists and telephone operators as well as Assistant Grade III are similar-Non-graduates are performing same duties as graduates-Nexus between amendments to Regulations and alleged object of higher efficiency in promotional post not established-Held Amendments to Regulations making differentiation between graduates and non-graduates offend equality clause and unconstitutional-Amendments struck down as unconstitutional.
       Held : There is no attempt made in the affidavit (of FCI) 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 out 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, AG-II 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 true 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 qualifications. None of the above matters has been touched upon by the Corporation in the additional affidavit filed as late as in May, 1998. 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. (Paras 16 & 17)
       It is by now settled by several decisions of this Court that educational qualification is a proper basis of classification for promotion. 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 and 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. (Paras 21 & 29)
       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. In the result, the impugned amendments are struck down as unconstitutional. (Paras 30 & 34)

Judgment

Srinivasan, J.-Leave granted in SLP.

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 the matters set out in sub-section 2 is ‘the methods of appointment, the conditions of service etc. of the officers 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 Regulations, 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 liability criterion was three years of service as AG II or Telex Operator. The 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 soon as formal amendment to the Regulations was made. On 22nd April, 1976 the FCI (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 of 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 of 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 and 1168 of 1987 by non-graduates. Following the judgment of the Kerala High Court referred to above, the Andhra Pradesh High Court allowed the writ petitions. W.A. Nos. 905 and 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 Petition R.P. No. 449/93 was dismissed on 20.4.93.

6. Earlier in 1985, thirty non-graduates filed W.P. 2834/85 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

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1998 Supreme(SC) 814

Cases Referred (14)