JUDGMENT

PATHAK, CJI.:— These appeals by graduate Excise Inspectors are directed against the judgment and order dated 20 March, 1981 of the High Court of Kerala holding that the amendment to Special Rule 2of the Kerala Excise & Prohibition Subordinate Service Rules is ultra vires.

2. The writ petitions were filed by nongraduate Excise Inspectors alleging that the amendment to Special Rule 2 of the aforesaid Rules violates Articles 14 and 16 of the Constitution inasmuch as an invidious discrimination has been made between graduates and non-graduates by prescribing a ratio between them in the matter of promotion from the post of Excise Preventive Officer to that of Second Grade Excise Inspectors. As all the cases have proceeded on a common factual basis, we shall take up the appeal arising out of 0. P. 3760 of 1978 for the purpose of this judgment.

3. The petitioner in O.P. 3760 of 1978 joined the post of Excise Guard on 2 April, 1960. He was promoted on 12 January, 1966 as Excise Preventive Officer. In the list of Preventive Officers in the Excise Department as on 1 August, 1970 he was ranked No. 131 while the third respondent was ranked at number 390. The third respondent was promoted earlier although he was junior to the petitioner. This was on the ground that he was a graduate and the petitioner was a non-graduate. The petitioner contended that as graduates and non-graduates were both regarded as eligible for promotion to the post of Second Grade Excise Inspectors no differentiation should have been made between them when prescribing a rule of quota for promotion. The writ petition was heard by a learned Single Judge, who held that the amendment to Special Rule 2 was violative of Articles 14 and 16 of the Constitution. It may be noted that the original Special Rule 2 of the Special Rules for the Kerala Excise and Prohibition Subordinate Service was amended by G. 0. P. No. 79/78/TD dated 23 June, 1978 whereby the ratio 1 : 3 between graduate and nongraduates was introduced into the Special Rules in the matter of promotion from the category of Excise Preventive Officers to that of Second Grade Excise Inspectors. The amendment was deemed to have come into force retrospectively from 9 September, 1974 when the Special Rules were brought in. The learned single Judge directed the respondents in the case to cause the Departmental Promotion Committee to be convened within two months to prepare a select list in order that promotions on a regular basis could be made.

4. Against the judgment of the learned single Judge in the different cases, appeals were filed before a Division Bench of the High Court. Two contentions were raised on behalf of the appellants, who in some of the appeals were the State of Kerala and the Deputy Commissioner of Excise, Board of Revenue, Trivandrum and in other cases were a number of private respondents in the original petitions and who held the post of Excise Inspector.

5. Two contentions were raised by the appellants before the Division Bench of the High Court. It was contended that the preference shown to graduates by prescribing under the amended special rule 2 the ratio 1 : 3 represents the recognition of graduation as a standard of merit and, it was urged, officers with more merit in the post of Excise Inspectors would promote administrative efficiency. It was also contended that the amendment to Special Rule 2 is the result of an historical background which justifies preferential treatment. It was-pointed out that as graduates and non-graduates had all along been treated differently in the matter of promotion to the post of Excise Inspector, the classification brought about by amending Special Rule 2 could not be regarded as unreasonable.

6. It will be appropriate to set forth the historical background out of which the present controversy arises. From the year 1935, in the erstwhile State of Travancore preference was given to graduates in the matter of promotion. When the State of Kerala was constituted by