Judgment :-

Markandey Katju, J.

1. This appeal by special leave has been filed against the judgment and order dated 3.11.2006 in Civil Misc. Writ Petition No. 78513 of 2005 of the High Court of Judicature at Allahabad.

2. Heard learned counsel for the parties and perused the record.

3. The dispute in this appeal is regarding the validity of Rule 5(ii) of the U.P. Public works Department Group-B Civil Engineering Service Rules 2004 (in short `the 2004 Rules).

4. Rule 5 of the 2004 Rules states :

"5. Recruitment to the posts in the service shall be made from the following sources:

.(i) Fifty percent by direct recruitment through the Commission.

.(ii) Fifty percent by promotion through the Commission from amongst the substantively appointed Junior Engineers (Civil) and Junior Engineers (Technical) who have completed seven years service as such on the first day of the year of recruitment.

Provided that the promotion shall be made in such a manner that ninety percent posts shall be filled up by Junior Engineers (Civil) and ten percent posts shall be filled up by Junior Engineers (Technical)."

5. Thedispute is between the Junior Engineers of the PWD department of the U.P. Government who are degree holders and those who are only diploma holders.

6. The submission of Shri B.A. Bobde, learned counsel for the appellants (the degree holders) is that while the U.P. Service of Engineers (Building and Road Branch) (Class II) Rules, 1936 (in short `the 1936 Rules) provided in Rule 9(ii) thereof that no Junior Engineer who was only diploma holder would be promoted as Assistant Engineer unless he has passed the qualifying examination that the Government may prescribe, this requirement has been done away with by rule 5 of the 2004 Rules.

7. It may bementioned that in 1966 there was an amendment to the 1936 Rules which provided that a Junior Engineer who is a diploma holder could be promoted as Assistant Engineer provided he either acquired the qualification prescribed in Rule 9(1) or he passed the qualifying examination.

8. Thereafter certain amendments were made to the Rules, but in our opinion they are not relevant in the present case.

9. The submission of Shri Bobde is that Rule 5(ii) of the 2004 Rules violates Article 14 of the Constitution, because it makes unequals as equals by completely divesting the requirement for the Junior Engineers who are only diploma holders either of acquiring the requisite technical qualification or passing a qualifying examination for promotion as Assistant Engineer. It is submitted that Article

14 can be violated not only by treating equals as unequals, but also by treating unequals as equals.

10. In State of Jammu & Kashmir vs. Triloki Nath Khosa & others AIR 1974 SC 1, the rule which provided that only degree holders in the cadre of Assistant Engineers shall be entitled to be considered for promotion to the next higher cadre of Executive Engineers while the diploma holder Assistant Engineers were not eligible for such promotion was challenged as violative of Article 14. However, the Constitution Bench of this Court repelled this challenge and observed that though the persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for the purpose of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications.

11. However, in Mohammad Shujat Ali & others vs. Union of India & others, AIR 1974 SC 1631, another Constitution Bench of this Court struck a different note and observed that for promotion to a higher post, discrimination based on educational qualifications not obligated by the nature of duties or responsibilities of the higher post would be violative of Article 14 of the Constitution.

12. In Roop Chand Adlakha & others vs. Delhi Development Authority & others, AIR 1989 SC 307, this Court while taking note of T.N. Khosas case (supra) and Mohd. Shujat Alis case (supra) observed in para 7 as under:

" 7. ......If