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1971 Supreme(J&K) 34
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Jaswant Singh, J.
Trilok Nath Khosa & Ors. - Appellant
Versus
State Of J&K - Respondent
Writ Petition No. 104/1971
Decided On : 08 July, 1971
Advocate For Appellant: T.R. Bhasin
Advocate For Appellant: J.N. Bhan
Advocate For Appellant: Ichpal Singh
Advocate For Respondent: Amar Nath Raina
Advocate For Respondent: A.K. Malik
The classification of employees on the basis of qualification is not arbitrary and does not violate Articles 14 and 16 of the Constitution of India if the classification is based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the differentia in question has a reasonable relation to the object sought to be achieved by the rules.
Headnote:
JAMMU AND KASHMIR CIVIL SERVICES - REVISED PAY RULES, 1968 - JAMMU AND KASHMIR ENGINEERING GAZETTED SERVICE RECRUITMENT RULES, 1970 - VALIDITY - CLASSIFICATION OF ASSISTANT ENGINEERS ON THE BASIS OF QUALIFICATION - WHETHER ARBITRARY AND VIOLATIVE OF ARTICLES 14 AND 16 OF THE CONSTITUTION OF INDIA - WHETHER THE RULES CAN BE GIVEN RETROSPECTIVE EFFECT - WHETHER THE RULES IMPOSE PUNISHMENT ON THE PETITIONERS AND AMOUNT TO THEIR ANTICIPATORY REDUCTION IN RANK - WHETHER THE RULES APPLY TO THE EXISTING EMPLOYEES - WHETHER THE RULES ARE RECRUITMENT RULES OR APPOINTMENT RULES.
Fact of the Case:
The petitioners, 30 in number, who are Diploma holder Assistant Engineers Grade II (Rs. 250-600) serving in various branches of the Engineering Service of the State have brought this petition challenging the validity of para B (1) of Rule 10 of the Jammu and Kashmir Civil Services (Revised pay), Rules, 1968, promulgated by the Governor vide Notification S.R.O.-87 dated February 27, 1968, in so far as it provides that Q-B (Qualification Bar) at Rs. 610/- will not be crossed by the Assistant Engineers with Diploma course. They also challenge the rules made by the Governor vide Notification S.R.O.-492 dated October 12, 1970, in so far as they bar the Diploma holder Assistant Engineers from future promotion to the cadre of Executive Engineers-Class II category A and other upper category promotions set out in the schedule annexed to the Notification.
Finding of the Court:
The court held that the impugned rules are valid and do not violate Articles 14 and 16 of the Constitution of India. The court further held that the rules can be given retrospective effect and that they do not impose punishment on the petitioners or amount to their anticipatory reduction in rank. The court also held that the rules apply to the existing employees and that they are not merely recruitment rules but also appointment rules.
Issues: 1. Whether the classification of Assistant Engineers on the basis of qualification is arbitrary and violative of Articles 14 and 16 of the Constitution of India? 2. Whether the rules can be given retrospective effect? 3. Whether the rules impose punishment on the petitioners and amount to their anticipatory reduction in rank? 4. Whether the rules apply to the existing employees? 5. Whether the rules are recruitment rules or appointment rules?
Ratio Decidendi: 1. The classification of Assistant Engineers on the basis of qualification is not arbitrary and does not violate Articles 14 and 16 of the Constitution of India. The classification is based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the differentia in question has a reasonable relation to the object sought to be achieved by the rules. 2. The rules can be given retrospective effect. The language used in the notifications clearly shows that it was intended by the Governor that the impugned rules should have a retrospective effect and apply to the existing employees. 3. The rules do not impose punishment on the petitioners or amount to their anticipatory reduction in rank. The expression "reduction in rank" occurring in section 126(2) of the Constitution of Jammu and Kashmir has to be construed according to the well established meaning it has acquired. It clearly means reduction from a higher to a lower rank or post. It cannot, therefore, be held to include within its ambit a qualification bar. 4. The rules apply to the existing employees. A close scrutiny of Rules l(ii), 2(ii), 5, 6 and 9 of the Jammu and Kashmir Civil Services (Revised pay) Rules, 1968, made vide Notification SRO-87 dated February 27, 1968, and 2, 8, 9, 11 (3), 15 and 17 of the Jammu and Kashmir Engineering Gazetted Service Recruitment Rules, 1970, made vide SRO-492 dated 12, 1970 would show that it was intended by the Governor that the impugned rules should have a retrospective effect and apply to the existing employees. 5. The rules are not merely recruitment rules but also appointment rules. The word "recruitment" occurring in the title of the Rules appears to have been used in a broad sense and includes appointment as well.
Final Decision: The petition fails and is hereby dismissed but without any order as to costs.
2. The case of the petitioners is that before promulgation of the aforesaid rules they were governed by Gazetted Service Rules made vide order No. 1328-C of 1939 whereunder promotions were made only on the basis of merit, ability and previous record of the candidates and no discrimination as regards qualification existed between Degree Holder and Diploma Holder Assistant Engineers, that the discrimination sought to be made by the impugned rules is arbitrary and capricious, that academic or technical qualification is germane only at the time of initial stage of recruitment i.e. selection for appointment and afterwards it is the efficiency or experience that counts, that Government service is, no doubt, contractual at its inception but once appointed to a post or office, the government servant acquires a status and his rights and obligations are governed by statute or statutory rules and that once the government appoints candidates with different academic or technical qualifications in the same cadre with the same pay scale and calls upon them to discharge similar duties they form one class and cannot be discriminated in the matter of promotion; to the higher grade or upper category posts on the basis of higher qualification. The petitioners have further averred that the aforesaid notifications impose punishment on them and tantamount to their reduction in rank and deprive them of equality of opportunity in the matter of promotion and as such are violative of Articles 14 and 16 of the Constitution of India and Section 126(2) of the Constitution of Jammu and Kashmir. The petitioners have also averred that the Governor could not by means of the impugned notifications change unilaterally their service conditions to their dis-advantage and deprive them of their vested right of promotion by giving retrospective effect to the notifications.
3. The petition has been contested by the respondents inter-alia on the grounds that it is within the competence of the Government to make provision for higher salaries to persons with higher qualifications and lay down the method of recruitment and appointment to various classes and categories of posts of the Engineering Service, that notification S. R. O. 87 dated February 27, 1968 which has revised the pay scales of several caders in Engineering department ensures to the benefit of the petitioners as their emoluments instead of being decreased have been increased, that whereas formerly the petitioners were entitled to a maximum of Rs. 500/- according to the revised pay scale they have been given the maximum grade of Rs. 610/-, that the petition is bad for mis-joinder of the petitioners as most of them having been promoted by relaxation of the rules cannot maintain the petition, that under S.R.O. 492 dated October 12, 1970, the Governor has laid down the method of recruitment and qualifications for appointment to various classes and categories of posts of the Engineering Department keeping in view the nature of duties and responsibilities attached to the posts, that higher pay scale has been sanctioned for Assistant Engineers who possess Degree or equ
