N. ABDUL BASHEER & ORS. ETC. ETC.versusK.K. KARUNAKARAN & ORS.

                   N. ABDUL BASHEER & ORS. ETC. ETC.
                                                                                   A
                                           v.
                         K.K. KARUNAKARAN & ORS.

                                    MAY 5, 1989

              [R.S. PATHAK, CJ., SABYASACHI MUKHARJI AND                           B
                            S. NATARAJAN, JJ.]

              Civil Services: Kera/a Excise & Prohibition Subordinate Service
        Rules, Special Rule 2-Promotion from post of Excise Prevention
        Officer to Second Grade Excise Inspector-Ratio 1:3 for graduates
        and non graduates-Prescription for-Held discriminatory and ultra
        •;tres.                                                                    c
              Constitution of India, 1950: Articles 14 and 16-Service condi-
        tions-Government should decide the consideration which underlie a
        poiicy that is formulated-Only when violative of Constitution-Courts
        e111uled w s1rike down 1he rules.                                          D

              The respondents, who were non-graduate Excise Preventive
        Officers in the Excise Department, had challenged in the High Court
        the amendment made to the original Special Rnle 2 of the Special Rules
        for the Kerala Excise and Prohibition Subordinate Service whereby the
        ratio of l :3 between graduates and non-graduates was introduced ln the    E
        matter of promotion from the category of Excise Preventive Officers to
        that of Second Grade Excise Inspectors. They had contended that as
        graduates and non-graduates were both regarded as eligible for promo·
        lion to the post of Second Grade Excise Inspectors, no differentiation
        should have been made between them when prescribing a rule of quota
        for promotion.                                                             F

               The learned Single Judge allowed the writ and held that the
        amendment to Special Rule 2 was violative of Articles 14 and 16 of the
        Constitution. The State of Kerala and the private appellants, who were
        graduate Excise Preventive Officers and were holding the post of
        Second Grade Excise Inspectors, filed appeals.· It was contended by        G
y       them before the Division Bench that (i) the preference shown to
    :
        graduates in the matter of promotion represented the reoognition of
        graduation as a standard of merit which would promote administrative
        efficiency, and (ii) the amendment to Special Rule 2 was the result of a
        historical background which justified preferential treatment. It was
        pointed out that as graduates and non-graduates had all along been         H
                                          201
    202                    SUPREME COURT REPORTS             [1989] 3 S.C.R.

    treated differently in the matter of promotion to the post of Excise
A
    Inspector, the classification brought about by amending Special Rule 2
    could not be regarded as unreasonable.

          The Division Bench held that the amendment to Special Rule 2 of the
    h.erala Excise & Prohibition Subordinate Service Rules was ultra vires.
B
          Dismissing the appeals, this Court

        HELD: (IJ The history of the evolution of the Kerala Excise and
  Prohibition Subordinate Service has shown no uniformity either in
  approach or in object. The history has varied with the circumstances
  prevailing before and after the reorganisation of the State. The condi·
C lions pertaining to the service, and respecting which the constitution of
  the service varied from time to time, showed fluctuations. A consistent
  or coherent policy in favour of graduates was absent. This is not a case
  where the cadre of officers was kept in two separate divisions. It was a
  single cadre, and they were all equal members of it. There is no
  evidence that graduate Preventive Officers enjoyed higher pay than
D non-graduate Preventive Officers. [208E-G I

          Mohammad Shujat Ali & Ors. v. Union of India 11975] I SCR
    -'-'9 and Col. A.S. Iyer v. V. Balasubramanyam, [1980] I SCC 634.
    distinguished.

E         (2) The Conditions of employment and the incidents of service
    in the instant case, recognise no distinction between graduate and non·
                                                                                      )-
    graduate Officers and for all material purposes they are effectively trea·
    ted as equivalent. The nature of the duties of Preventive Officers whether
    graduate or non-graduate was identical, and both were put to field work.
    :\on-graduate Preventive Officers were regarded as competent as graduate
F   Preventive Officers. There is no evidence of any special responsibility
    being vested in graduate Preventive Officers. [208H; 209A, El

           State of lammu & Kashmir v. Triloki Nath Khosa, [1974] 1 SCR
    ii I; S.L. Sachdev v. Union of India, [1980] l S.C.R. 971, distinguished.

G          H.H. Shri Swamiji of Shri Admar Mutt v. Commissioner, Hindu
    /(eligious & Charitable Endowment Department, [1980] l SCR 368 and           ~(
    .11otor General Traders v. State ojAndhra Pradesh, [1984] l SCC 222.
    referred to.

       (3) Ordinarily, it is for the Government to decide upon the
H considerations which, in its judgment, should underlie a policy to be
                   ABDUL BASHEER v. K.K. KARUNAKARAN [PATIIAK, CJ.[              203
.   "·""\
            formulated by it. But if the considerations are such as prove to be of no
                                                                                        A
            relevance to the object of the measure framed. by the Government, it is
            always open to the Court to strike down the differentiation as being
            violative of Articles 14 and 16 of the Constitution. [209D-E]

                  (4) The learned Single Judge as well as the Division Bench were
            right in holding that the prescription of a ratio dividing the quota of B
            promotion between graduate Preventive Officers and non-graduate
            Preventive Officers is invalid on the ground that it violates Articles 14 .

••  ..A
            and 16 of the Constitution. [209B-C]

                  CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1553
            to 1556 of 1981 etc.
                                                                                        c
                 From the Judgment and Order dated 20.3. 1981 of the Kerala
            High Court in W.P. Nos. 166, 177, 223 and 243of1980.

                 T.S. Krishnamurthy Iyer, G.L. Sanghi M.M. Abdul Khader,
            M.K. Ramamurthi, G. Vishwanatha Iyer, Ms. Shanta Vasudeavan,                D
            A.S. Nambiar, K.M.K. Nair, E.M.S. Anam, V.J. Francis, O.V.
            Radhakrishnan and N. Sudhakaran, for the appearing parties.

                  The Judgment of the Court was delivered by

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

                  The writ petitions were filed by non-graduate Excise Inspectors       F
            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,      G
            we shall take up the appeal arising out of O.P. 3760 of 1978 for the
            purpose of this judgment.

                 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        H
    204                   SUPREME COURT REPORTS            [1989] 3 S.C.R.

A 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
B 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
                                                                              .I
                                                                              ·~
  the Special Rules for the Kerala Excise and Prohibition Subordinate
c Service  was amended by G.O.P.No. 79/78/TD dated 23 June, 1978
  whereby the ratio I:3 between graduate and non-graduates was intro-
  duced 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
D 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.

          Against the judgment of the learned Single Judge in the different
E   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.
F
          Two contentions were raised by the appellants before the Divi-
    sion 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
G   Inspectors would promote administrative efficiency. It was also
    contended that the amendment to Special Rule 2 is the result of an        Y
    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
H   could not be regarded as unreasonable.
           ABDUL BASHEER v. K.K. KARUNAKARt.N !PATHAK, CJ.I            205

         It will be appropriate to set forth the historical background out of A
    which the present controversy arises. From the year 1935, in the erst-
    while State of Travancore preference was given to graduates in the
    matter of promotion. When the State of Kerala was constituted by the
    merger of the Travancore and Cochin areas with effect from 1
    November, 1956 a rule was promulgated in the Excise Department of
    Kerala prescribing a ratio in the matter of promotion to the post of B
    Excise Inspectors by an order dated 23 August, 1957. The Rule
    regulated appointments to posts of Guards, Preventive Officers and
-   Second Grade Inspectors in the Excise Department. Clause (d) related
    to Second Grade Excise Inspectors and it provided:

               "(d) Second Grade Excise Inspectors: A margin of C
               twentyfive per "cent of the vacancies in the cadre of Second
               Grade Excise Inspectors will be left for being filled up by
               direct recruitment by the Public Service Commission of
               graduates ...... The remaining seventy five per cent will
               be filled up by promoting L.D. Clerks ....... and Preven-
               tive Officers on a 50:50 basis observing the ratio. of 3: I D
                between graduates and non-graduates in either case."

          Clause (d) applied to personnel of the Travancore-Cochin area.
    The officers allotted from Madras were governed by the Madras Rules
    pending the issue of common rules applicable to both. By reason of
    this Order 25 per cent of the post of Second Grade Excise Inspectors E
    were to be filled up by direct recruitment, 371/2 per cent by promoting
    Lower Division Clerks and 371/z per cent by promoting Preventive
    Officers. Within the promotion quota of Preventive Officers promo-
    tion wa~ to be effected between graduates and non-graduates in the
    ratio of 3: 1. This rule applied to Travancore and Cochin personnel
    appointed prior to 1 November, 1956. After taking note of the situa- F
    tion in different parts of the State, the Government order dated 19th
    November, 1957 prescribed the ratio of 1: 1 between graduates and
    non-graduates on an interim basis. It was mentioned there that the
    ultimate aim was to do away with the distinction between graduates
    and non-graduates in offices other than the Secretariate, the Public
1   Service Commission and the High Court. Subsequently, however, it G
    was clarified on 8 July, 1966 that the Order was intended to apply to
    ministerial posts only and not to executive posts such as those of Pre-
    ventive Officers.

         The question of the applicability of the graduate and non-
    graduate ratio was examined by the High Court in Writ Petitions filed     H
    206                   SUPREME COURT REPORTS           [1989) 3 S.C.R.

   in 1972, and the High Court directed the Government to look into the
   matter and finalise the provisional promotion of Excise Inspectors
   accordingly. It was thereafter that Special Rules.for the Kerala Excise
   and Prohibition Subordinate Service dated 9 September, 1974 were
   published. They provide for appointment to the posts of Excise
   Inspectors by direct recruitment, promotion from the category of
13 Excise Preventive Officers and recruitment by transfer from among
   Upper Division Clerks employed in the Excise Department. The Rules
   did not provide for any graduate non-graduate ratio in the matter of
   promotion, apparently because the ratio had already been provided
   earlier by the Government order dated 23 August, 1957. But mean-
   while the High Court held that the Government order dated 23
   August, 1957 could not be applied to those appointed after the forma-
c tion of the State of Kerala. To fill up the vacuum in respect of appoint-
   ments after l November, 1956 an order dated 4 October', 1974 was
   made applicable retrospectively to all appointments on or after 1
   November, 1956 till the date of issue of the Special Rules for the
   Excise Subordinate Service. It adopted the ratio of 3: 1 between
O graduates and non-graduate for promotion to the post of Second
   Grade Excise Inspectors for the entire State of Kerala, and it specifi-
   cally provided that this graduate non-graduate ratio 3: 1 would apply to
   the case of persons who had entered the Excise Department on or after
    I November, 1956, and that it would operate until the coming into
   force of the Kerala Excise and Prohibition Subordinate Service Rules.
 E This was, however, challenged in the High Court and the High Court
   held that it was not open to the Government to apply the ratio of 3: 1
   by an executive order passed in 1974 and made retrospectively from l
   November, 1956 inasmuch as an executive order could not be given
   retrospective effect. There was, therefore, no provision in law pre-
   scribing a graduate non-graduate ratio governing appointments made
I' on and from 1 November, 1956. As has been stated Special Rules for
   the Excise Subordinate Service dated 9 September, 1974 had been
   published meanwhile. Special Rule 2 was amended with effect from ~
   September, 1974, the dat~ of commencement of the Special Rules,
    providing for a ratio of 1:3 between graduates and non·graduates as
  from 9 September, 197-l. In consequence. while up to 9 September. 197-l     t
G there was no valid Rule in force applying a graduate nun-graduate
  ratio for promotion, there was a rule introduced in 19'.)8 by amend-
  ment to the Special Rules prescribing a ratio from 9 September, 1974
  onwards. The gap between 1 November, 1956 and 9 September, 1974
  was sought to be filled thereafter by an Order dated 6 March, 1980
  which provided that the appointment of Excise Inspectors during the
H period from 1 November, 1956 and ending 8 September, 1974 from
      ABDUL BASHEER v. K.K. KARUNAKARAN [PATHAK, CJ.}            207

among Clerks and Preventive Officers who have entered service on or
                                                                        A
after I November, 1956 would be made in the ratio of 1: 1 between
Clerks and Preventive Officers. simultaneously observing the ratio of
3: I was observed between graduates non-graduates. The Rule was
deemed to have into force from 1 November, 1956.

      It will thus be evident that in the case of Preventive Officers   B
appointed on or after 1 November, 1956, the graduate non-graduate
ratio of 3: 1 was observed between 1 November, 1956 and 8 September,
1974, and it became 1:3 from 9 September, 1974 onwards.

     The plea of the non-graduate Preventive Officers that there
should be no preference in favour of the graduate officers was
accepted, as we have seen, by the learned Single Judge and upheld in    c
appeal by the Division Bench of the High Court.

      In these appeals by graduate Excise Inspectors, it is contended
that there was good and substantial reason for maintaining the ratio
between graduate and non-graduate Officers, and the history of the      D
evolution of the service supported the maintenance of such ratio, and
that the High Court proceeded erroneously in assuming that the
observance of the ratio between graduates and non-graduates pro-
duced an invidious discrimination violative of Arts. 14 and 16 of the
Constitution. We are referred to Mohammad Shujat Ali & Ors. etc. v.
Union of India & Ors. etc., [1975] 1 SCR 449 where this Court upheld E
the differentiation between graduate supervisors and non-graduate
supervisors for the purpose of promotion as Assistant Engineers. But
it is clear that this was on the ground that the two categories of
supervisors had been kept distinct and apart under the Cadre Rules
from the beginning, with different pay scales and different treatment
for the purpose of promotion. Reference was also made of State of F
Jammu & Kashmirv. Triloki Nath Khosa & Ors., [1974] 1 SCR 771 but
it was held there that having regard to the object of achieving
administrative efficiency in the Engineering Service it was a just
qualification to maintain a distinction between Assistant Engineers
who were degree holders and those who were merely diploma holders.
In S.L. Sachdev & Anr. v. Union of India & Ors., [1981] 1 SCR 971 G
again the discrimination between UDCs drawn from Audit Offices and
other UDCs in.the matter of the eligibility qualification for promotion
was justified on the basis that the one enjoyed greater experience and
that the distinction based on length of service was directly related to
the object of the classification. In Col. A.S. Iyer and Others v. V.
Balasubramanyam and Others, [-1980] 1 SCC 634 upon which reliance H
    208                   SUPREME COURT REPORTS            [1989] 3 S.C.R.

A has been placed by the Appellants, the recruits were from two diffe-
  rent sources which had not completely fused into one integrated
  service but were instead allowed to maintain their separate identity,
  and regard was had to their basic functional character, operational
  capabilities and 'futll,fistic' uses to support the differential treatment
  between military engineers and civilian engineers. H.H. Shri Swamiji
                                                                               y
B of Shri Admar Mutt, etc. v. The Commissioner, Hindu Religious &
  Charitable Endowments Department & Ors., [1980] 1SCR368 is a case
  where we find it difficult to see any argument in favour of the appel-
  lants, for the passage therein to which our attention has been drawn
  specifically alludes to the circumstance that the passing of time results
  in altering a fact situation which has the consequence of wearing out
C the basis on which the differentiation is founded. So also in Motor
  General Traders and Anr. v. State of Andhra Pradesh & Others, [1984)
  1 SCC 222 it was observed hv this Court that an exemption provision
  initially valid could become discriminatory where with the passage of
  time the nexus with the object did not survive any longer.

D        We have also heard submissions made by learned counsel for the
    appellants in Civil Appeals Nos. 1554 and 1556 of 1981, and they have
    elaborated on the points raised by learned counsel in Civil Appeal No.
    1553 of 1981 with some differences of nuance and emphasis. In
    essence, the contention remains the same.

E       It seems to us that the history of the evolution of the Kerala
  Excise and Prohibition Subordinate Service has shown no uniformity
  either in approach or in object. The history has varied with the
  circumstances prevailing before and after the reorganisation of the
  State on 1 November, 1956. Originally when more emphasis was laid
  on the induction of graduate the ratio of graduate to non-graduate           -\
F officers was maintained at 3:1. But from 9 September, 1974 the ratio
  was changed inversely to 1:3. More non-graduates were now inducted
  into the Service. The trend shows, if anything, that it ran in favour of
  absorbing more non-graduates. The conditions pertaining to the
  service, and respecting which the constitution of the service varied
  from time to time, showed fluctuations. A consistent or coherent
G policy in favour of graduates was absent. This is not a case where the
  cadre of officers was kept in two separate divisions. It was a single        -1'.
  cadre, and they were all equal members of it. There is no evidence that
  graduate Preventive Officers enjoyed higher pay than non-graduate
  Preventive Officers. The High Court has noted that the nature of the
  duties of Preventive Officers whether graduate or non-graduate was
H identical, and both were put to field-work. Non-graduate Preventive
             ABDUL BASHEER v. K.K. KARUNAKARAN [PATHAK, CJ.I                209

       Officers were regarded as competent as graduate Preventive Officers.         A
       There is no evidence of any special responsibility being vested in
       graduate Preventive Officers. Once they were promoted as Excise
       Inspectors there was no distinction between graduate and non-
       graduate Excise Inspectors.

             In our opinion the learned Single Judge as well as the Division
                                                                                    B
       Bench are right in holding that the prescription of a ratio dividing the
       quota of promotion between graduate Preventive Officers and non-
       graduate Preventive Officers is invalid on the ground that it violat.es
       Arts. 14 and 16 of the Constitution.

             The other contention raised before the High Court, namely that         c
       the ratio 1:3 between graduates and non-graduates is supportable on
       the ground that the recognition of graduation is recognition of merit,
       and that more merit in the post of Excise Inspectors would be con-
       ducive to better administrative efficiency, is shortly· disposed of.
       Ordinarily, it is for the Government to decide upon the considerations
       which, in its judgment, should underlie a policy to be formulated by it.     D
       But if rht! considerations are such as prove_ to be of no relevance to the
       object of the measure framed by the Government it is always open to
       the Court to strike down the differentiation as being violative of Arts.
.. >   14 and 16 of the Constitution. In the present case, we have already
       commented on the circumstance that the conditions of employment
       and the incidents of service recognise no distinction between graduate       E
       md non-graduate Officers and that for all material purposes they are
       dfectively treated as equivalent.

             Accordingly, this contention must also be rejected.

            In the result, the appeals fail and are dismissed but there is no       F
       order as to costs.

       R.S.S.                                                    Appeals failed.