Hon’ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.—The petitioner was appointed as a clerk in the Public Works Department (PWD) of the State Government on 5 May 1999 and is in continuous service since then. On 11 January 2010, he was promoted as senior clerk on which post he continues to work. Presently, he is posted in the provincial division of the PWD at Firozabad.

2. The State Government notified on 1 January 2015, the U.P. Lok Nirman Vibhag Avar Abhiyanta (Civil) (Group-C) Service Rules 2014 (Rules) under Article 309 of the Constitution. Rule 5 specifies the source of recruitment for filling up the post of Junior Engineer (Civil). 95% of the posts are to be filled up by direct recruitment through the Public Service Commission. The remaining 5% of the posts are to be filed up by promotion from amongst substantively appointed Group-C employees of the department who have obtained the qualifications specified in Rule 8 after obtaining the permission of the department and have completed 10 years of substantive service on the first day of the year of recruitment. Rule 8 specifies the educational qualifications required to be possessed by a candidate for appointment as a Junior Engineer (Civil). The prescribed educational qualifications are High School Certificate Examination or equivalent alongwith a 3 year diploma in Civil Engineering awarded by the Board of Technical Education or a qualification equivalent thereto.

3. On 8 January 2015, the Senior Staff Officer in the PWD addressed a communication to all the Regional Chief Engineers requiring them to forward details of such Grade-C employees in the department who had obtained a diploma in civil, electrical or mechanical engineering with the permission of the department. On 14 January 2015, the Executive Engineer of the Provincial Division, Firozabad forwarded the name of the petitioner to the Superintending Engineer. A further communication was issued on 20 February 2015 by the Senior Staff Officer in pursuance of which the Executive Engineer of the Provincial Division forwarded details of the petitioner under cover of a letter dated 28 February 2015. The office of the Engineer-in-Chief prepared a list of Group-C employees eligible for consideration for promotion on 22 May 2015 in which the name of the petitioner figured at serial No. 6. It appears that the office of the Engineer-in-Chief sought a clarification from the State Government on 29 May 2015 on various issues, among them being whether candidates who had obtained a degree/diploma prior to appointment would be eligible for consideration for promotion. The State Government by its communication dated 2 September 2015 directed that action be taken under Rule 5 (2) of the Rules. In the meantime, by a circular dated 12 June 2015, the office of the Engineer-in-Chief notified a provisional seniority/eligibility list to which objections were invited. Thereafter, a final seniority/eligibility list was issued on 9 September 2015 in which, the name of the petitioner has not been included.

4. The petition contains a categorical statement - not denied in the counter-affidavit - that the petitioner possesses a 3 year diploma in Civil Engineering; that he was substantively appointed in the clerical cadre and has completed 10 years service as on 1 July 2015. The submission of the petitioner is that Rule 5 of the Rules, insofar as it excludes such members of the clerical cadre who possessed a diploma at the time of their initial appointment in the clerical cadre from consideration is arbitrary and violative of Article 14. According to the petitioner, there is no reason or basis to exclude in service candidates such as himself, who had obtained the required diploma qualification prior to their entry in service.

5. In pursuance of an order passed by this Court on 18 November 2015, a counter-affidavit has been filed by the Principal Secretary in the PWD in which, it has been stated as follows:

“That the petitioner has not obtained