Holding

The note is constitutionally valid as it rests on a rational classification based on length of service and experience, and the appeal is dismissed as infructuous.

Summary

The appellants, Junior Engineers recruited in 1973, sought promotion to Assistant Engineer under the Telegraphic Engineering Service rules. The 1966 Rules required a qualifying departmental examination after five years of service, but the 1981 Rules introduced a qualifying‑cum‑competitive exam and a note that the first two examinations would be only competitive, limited to officers who had already qualified before the new rules came into force. This excluded the 1973 batch, leading the appellants to challenge the note as discriminatory and violative of equality of opportunity. The High Court initially held the note ultra vires, but the Division Bench reversed that view. The Supreme Court upheld the validity of the note, finding the classification based on length of service and experience to be a rational basis with a nexus to the object of the rules, and held that the appeal had become infructuous due to the passage of time, while issuing directions for pending promotions. The appeal was therefore dismissed.

Issues considered

Whether the note appended to clause (4) of Appendix I to the Telegraphic Engineering Service (Group B Posts) Recruitment Rules, 1981 is ultra vires and violative of the constitutional guarantee of equality of opportunity.
Whether the classification of candidates based on service length and prior qualification is a valid and intelligible classification under Article 14 of the Constitution.

Legislation cited

Constitution of Indias. Article 14, s. Article 226, s. Article 309

Subjects

service promotionequality of opportunityclassificationrecruitment rulesdepartmental examinationconstitutional validityArticle 14Article 309Telegraphic Engineering Service

Judgment

ssi
.A

V. J. THOMAS AND ORS.

v.
ll
UNION OF INDIA AND ORS.

April 23, 1985

[D. A. DEsAI AND RANGANATH MISRA, JJ.)
I
c
Civil Service-Telegraphic· Engineering Service (Group B Posts) Recruitment
R11/es, 1981, Note to sub-clause (4) of Appendix /-Constitutional validity of.

Clause (l) in Appendix I to the Telegraphic Engineering Service (Class II)
Recruitment Rules, 1966 (1966 Rules, for short), provided that promotion of a
Junior En'gineer to the post of Assistant Engineer shall be ~ntirely by promotion D
on the basis of selection of Junior Eagiaeers through a qua1i(yia1 departmental
examination. Sub-clause (4) PfOvided that the departmental qualifyio·g examina-
tion shall be open to Junior Engineers who were recruited and absorbed in that
gr'ade against the vacancies of a year, ordinarily not less than five years prior to
the :Year of announcement of the said exaniination. Sub-clause (4) of Appcndi;ii; I
to the Telegraphic Engineering Service (Group B Posts) Recruitment Rules, 1981
(1981 Rules, for short) which superseded the 1966 Rules envisaged a qualifying- I~
cum-competitive examination for promotion to the post of Assistant J!naineers,
and the Note appended to sub-cl. (4) provides that for a period of2 years
after the commencement of the 1981 Rules, the first two examinations shall only
be competitive for which the eligibility shall be restricted to only those· offi~rs
who have already qualified in the Departmental Qualirying Examination held
before the commencement of these Rules."'
F
. The appellants/Jui:iior Engineers, who were recruited in the year 1973,
challenged in the High CoiJ.r.t the constitutionality of the Note appended to
clause (4) of Appendix I to 1981 Rules on the' ground that note 4 appended to
clause I introduces discrimination in that Junior Engineers or 1972 and prior
• batches wilt alone be·able, if they had cleared the qualifying examination, to
take the competitive eii:amination which would be held undc:r 1981 Rules and. as
G
only the competitive examination was to be held. Junior Engineers of 1973 and
subsequent batches, even if they have put in five years of qualifying service,
would be denied an opportunity to take the examination, and that this is an
invidious ma_nner of denying them tbe opportunity to take the examination and
thereby deny t_hem equality of opportunity in the matter of promotion. The
learned Single Judge held that the Note to clause (4) of Appendix I to the 1981
Rules was ultra vires. On appoal by the respondent Union of India, the Divi·
sion Bench of the High Court held that tbe Note was not ultra vires. H
SUPRllMB COURT REPORTS tt98SJ 3 S.C.R.
Dismissing the appeal by the appellants, the Court,

HELD : (1) By sheer passage of time, this appeal and even the main
petition have become infructuous. Even in service jurisprudence the clock of
history, sometimes, cannot be put back and even if it is found that the respon~
dents have committed an error in implementing the statutory rules no relief can
be granted. This is one such case. [885F-G]

(2) If by 1982, nearly 4,000 Junior Engineers of pre-19'/3 batches had
become eli2ible for taking competitive· examination, the department would be
prefectly ju~tified in keeping the examination open only to persons who have put
in such long service and leaving others to wait for the next examination. If for
taking examination this aspect introduces classification, it is based on ratio·naJ
and intelligible differentia which has a nexus to the object sought to be achieved.
,c' By the note, for a period Of two years only pre-1973 Junior Engineers who had
cleared qualifying examination were given a chance to take competitive exami-
•nation. If this introduces a classification, it is valid. It caters to a well-known
situation in service jurisprudence that there must be some ratio of candidates to
vacancies. And it is based on Jong experience as a rational basis for classifica-
tion. Viewed-from this· angle, there is nothing in the policy underlying the note
to rlile (4) as being either discriminatory or arbitrary or denying equality of
opportunity in the matter of promotion. It had the desired eflect of not having
a gtutt of Junior Engineers taking examination compared to fewer number of
vacancies. Length and experience were given recognition by the note. The pro-
motion can be thus by stages exposing the promotion;•J avenue gradually to
persons having longer experience. This seems to be the policy underlying the
note and therefore there is nothing improper· or unconstitutional in it.
[888D-G]
,E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2183 of
1984.
From the Judgment and Order dated 28.3.1984 of the Kerala
.High Court in W. P. No. 131 of 1982.
F M. K. Ramamurthi, V. J. Francis and N, M. Popli for the
Appellants.
G. D. Gupta, Ms. Ha/ida Khatun, Subba Rao, R. N.
Poddar, Ms. Subhadra, Ms. A/ka, B. B. Tawak/cy and Mrs. •
G Urinila Kapur for the Respondents.

The Judgment of the Court was delivered.by

DESAI, J. Chagrined by the failure of the attempt to pressurise
junior engineers to boycott the examination and further irritated by
H the holdi; l of the examination the appellants have knocked at the
~i
v. J. THOMAS v. UNION (Desai, J.)
doors of this Court, putting forth utterly unsustainable conten.tions. t\~

Appellants are junior engineers in the Telegraph Wing of the
Post & Telegraph Department. · The next avenue of promotion for
a Junior Engineer is the post of Assistant Engineer. Promotions
were governed by Telegraphic Engineering Service (Class II) Re;1
cruitment Rules, 1966 ( '1966 Rules'. for short). By these rules
Telegraphic Engineering Service ( Class II) was formed. The Rules
were to apply to posts as specified in Clause(!) of the Schedule'
which specified the post of Assistant Engineer and other equivalent
posts having allied designations. Clause (I) in Appendix I to the
1966 Rules provides that recruitment to the service shall be entirely
by promotion on the basis of selection of Junior Engineers thro~gh'
a qualifying departmental examination. An approved list shall ·be·
prepared by a duly constituted Departmental Promotion Committee;'.
by selection from amongst the officials who qualify in the depart-
mental examination. Sub-Clause (4) provided that the departmen-
l)
tal qualifying examination shall be open to Junior Engineers who
fulfill, amongst others, the condition specified therein. It reads as
under: ··

"Those recruited and absorbed in that grade against the
vacancies of a year, ordinarily, not less than five· years prior E
fo the. year of announcement of the said examination."

These rules were in force till superseded by Telegraphic Engineer-
ing Service (Qroup B Posts) Recruitment Rules, 1981 ('1981 Rules'
for short) enacted in exercise of the power conferred by ih~ proviso
to Article 309 of the Constitution with effect from May 7, J9'8f: F
The controversy centers round the Note appended to sub-clause (4)
of Appendix I of 1981 Rules which reads as under: · · ' ·.''
" ,. t,, ~r

"40 There shall be normally one examination, consisti~g .of
two parts called Qualifying-cum-Competitive Examinati,;n for
promotion to the Service and shall be held at least once in a G
calendar year in the manner and in accordance with th~ "
o;

syllabus prescribed in Appendix III to these rules.

Note: After the commencement of these rules, the first
two examinations shall only be competitive for which the
eligibility shall be restricted to only those officers who have
884 SUPREME COURT REPORTS (1985] 3 S.C R
A · already qualified in the Departmental Qualifying Examination
held before the commencement of these rules."

Appellants were recruited as Junior Engineers in the year
1973. In other words, they belong to 1973 batch. Their grievance
B is that they have completed five years of service which conferred on
them eligibility to appear at an examination which was to be held
under 1966 Rules. 1966 Rules contemplated only one examination
styled as Qualifying Departmental Examination. 1981 Rules which
superseded 1966 Rule~ provide for one examination to be held in
two parts namely Qualifying Examination and Competitive Exami-
c nation. Before one is permitted to take a Competitive Examination
be has to clear Qualifying Examination. In short, if one bas not
qualified at the Qualifying Examination he can not take the Compe•
titive Examination. The appellants' grievance is that from 1973 to
1982 or to be specific after 1978 when they became eligible to take
Qualifying Examination no Qualifying· Examination was held till
D May 7, 1981 when 1966 Rules were superseded by 1981 Rules which
introduced the concept of Competitive Examination which could
alo:ie be taken after in qualifying the Qualifying Examination and
for a period of two years as per the Note appended to clause (4)
Qualifying Examination was not to be held. The contention is that
this is an invidious manner of denying them the opportunity to take
E the examination and thereby deny them equality of opportun ily in
the matter of promotion.

Appellants accordingly filed O.P. No. 5714/81 under Art. 226
of the Constitution in the High Court of Kerala impugning the
constitutionality of the Note appended to clause (4) of Appendix I to
!981 Rules. A learned Single Judge of the High Court, before
whom the petition came up for bearing, held that the policy reflec-
ted in the Note appended to. clause (4) of Appendix I to 1981 Rules
is irrational as it has no reasonable connection with the needs of
the office or the object sought to be attained. A direction was given
that the Note shall be applied to the appellants. By the judgment
G
rendered on March 9, 1982, the learned Judge gave a further direc-
tion that the department can eit!ier hold the over-due qualifying
examination of 1980 or it can hold the qualifying-cum-competitive
examination but it must be done forthwith so that the appellants,
who were petitioners before the Hish Court may not be alto~ether
v. J. THOMAS v. UNION (Desai, J.) 885

excluded froin the examination or examinations to be held. A

The respondents to the writ petition, the Union of India and
others filed Writ Appeal No. 131 of 1982 which came up before a
Division Bench of the High Court. The Division Bench disagreed
with the learned Single Judge observing that the Note to Rule 4 is
not ultra-vires but this was subjects to the further directions given u.
by the Division Bench. Taking note of the fact that in the mean-
time, a competitive examination was conducted, a direction was
given that the result be published and the candidates who are dec-
lared successful in the examination should be appointed to 33-1 /3%
of the vacancies whic.h arose between May 7, 1981 and May 7, 1982. (;_
A further direction was given that the second competitive exami·
nation contemplated in note to clause (4) must be conducted after a
qualifying examination as envisaged in 1966 and/or 1981 Rules is
conducted within a period of six months from the date of the
judgment and all those examinees found declared successful at the
qualifying examination be permitted to take the. competitive exami- D
nation which must be held. within six months from the date of the
result of the earlier examinatfon. A direction was given that the
candidates declared successful at the con;ipetitive examination be
appointed to 33-1/3% quota cif posts in the vacancies that arose
Qetween May 7, 1982 and May 7, 1983. There was some further
directions which are hardly material for the present purpose. The E
writ appeal was disposed of in these terms. Original petitioners
aggrieved by the decision of Division Bench have. filed this appeal
by special leave.

By sheer passage of time, this appeai and even the main
F
petition have become infructuous. Even in service jurisprudence
the clock of history, sometimes, cannot be put back and even if it
is found that the respondents have committed an error in imple-
menting the statutory rules no relief can be granted. This is one
such case.
G
Appellants are Junior Engineers of the 1973 batch belonging
to the service styled as Telegraphic Engineering Service (Class II) .
re-designated as Telegraphic Engineering Service (Group B Posts).
Appellants as Junior Engineers can look forward to become
Assistant Engineers by promotion. Indisputably, the recruitment to
the post of Assistant Engineer in the service is by promotion from ff
886 SUPREME COURT REPORTS (1985] 3 S.C.R.

the cadre of Junior Engineers. Under the 1966 Rules, Junior
Engineers would become eligible for promotion on qualifying at a'
qualifying examination. The eligibility criterion for taking the
examination was service of five years. Appellants who are Junior
~nglneers of 1973 batch became eligible for taking the examinatio~
that tiiay be held in 1978 and onwards. Once in November, I 980
B and another in January, 1981, programme of holding qualifying
examination, where 1973 recruits could have appeared, was announ-
ced but subsequently cancelled and on May 7, 1981, 1966 Rules
were superseded by 1981 Rules.

c 1981 Rules envisaged a qualifying-cum-competitive examina-
tion. Eligibility criterion for taking competitive examination wa~
successful clearance of qualifying examination. Therefore, unless a'
qualifying examination is held one would have no chance to take
competitive examination. For 1973 recruits no qualifying examina-
tion is held. In 1981 Rules by a note appended to clause (4) of
D. Appendix I, it was provided that the next ·two examinations under
1981 Rules would only be competitive examination. The sum total·
of these developments would certainly come in the way of appel-
lants who are of 1973 batch from taking competitive examination
and unless they qualify at that examination they would not be
eligible for promotion to the post of Assistant Engineer.

In 1982 a competitive examination was held. Junior Engineers
who were recruited prior to 1973 and who had qualified at the
qualifying examination held in August 1980 could appear at this
competitive examination. As Junior Engineers of 1973 and sub-
F s.equent batches were not admitted to qualifying examination held
in J9S2 and as no qualifying examination was held in Novembe~
1980 and January ·198l and as two examinations under the J.981 ·
Rules were only to be competitive examination, certainly they have ·
been denied an opportunity to take the examination. Appellants
who similarly situated persons tried extra-constitutional methods to
G' pressurise the powers that be, from holding the qualifying examina-
tion and subsequently from declaring itS results., This Court had to
interpose to put down such pressure tactics by a mandatory direc-
tion given at an interim stage that the results of the examination.
already held must be declared. We are informed that the res11I~
have been declared,
v. J. THOMAS v. UNION (Desai, J.) 887
Mrs. Urmila Kapoor, learned counsel represented one such A
successful candidate. Even though the results are declared; the
follow-up action of promotion and appointment has not been taken.
We propose to give appropriate directions in this matter.

In the backdrop of these facts, can it be said that the appel- ~ B
!ants have been victimised or subjected to discriminatory treatment
or have been denied equality of opportunity in the matter of pro-
motion. Appellants do not question the legality of rules which
prescribe a qualifying-cum-competitive examination for becoming
eligible for promotion to the post of Assistant Engineer. Their
grievance is that D'Ote 4 appended to clause I introduces discrimi·
nation in that Junior Engineers of 1972 and prior batches will alone c
be able, if they had cleared the qualifying examination, to take the
competitiv.e examination which would be held under 1981 Rules
and as only the competitive examination was to be held, Junior
Engineers of 1973 and subsequent batches, even if they have put in
I)
five years of qualifying service, would be denied an opportunity to
take the examination. The learned Single Judge of the High Court
held the note to be ultra-vires. We find it difficult to agree with. the
view of the learned Single Judge in this behalf. However the
Division Bench has clearly opined that the note is not uitra-vires.
E
Mr. Ramamurtl)y, learned counsel for the appellants conten-
ded that the note inheres the pernicious tendency of denying equality
of opportunity in the matter of taking examination because it
permits the department to provide a bottleneck coming in the way
of Junior Engineers of the 1973 batch from taking the ·competitive
examination by not holding the qualifying. examination. We see F
nothing wrong in the policy disclosed by the note. It was pointed
out that by 1982 nearly 7, 000 Junior Engineers had become eligible
for taking competitive examination. There was some dispute .about
the figure but we are prepared to accept the figure as given by Mr.
Ramamurthy, learned counsel that 4, 000 Junior Engineers of pre-
1973 batch were qualified for taking competitive examination. Mr. G
Ramamurthy contended that if the eligibility criterion is five years
of service no artificial road-block could be created so as to come in
the way of such qualified Junior Engineers from taking the exa-
mination. As an additional string to the bow, it was submitted that
if the purpose of holding a competitive examination is to select best
all eligible persons must be permitted to take the examina'ion and II
888 SUPREME COURT REPORTS (1985) 3 S.C.R.

A no artificial barrier need to be created. It was submitted that not
holding of the qualifying examination creates such an impermissible
road-block in the way of Junior Engineers of 1973 and subsequent
batches from taking competitive examination.

Jfby 1982, more than 4, 000 Junior Engineers of pre-1973 batch
B had become eligible to take the examination and if the accumulated
number of vacancies was around 300, it is difficult to accept the
submission of Mr. Ramamurthy that everyone who has just put in
five years of service must be permitted to take the examination. It
is a known-principle of service jurigprudence that even though mini-
mum eligibility criterion is fixed enabling one to take the exami-
c nation yet the examination can be confined on a rational basis to
recruits upto a certain number of years. That constitutes recognition
of long experience and not permitting some irate junior to score a
march. If by 1982, nearly 4, 000 Junior Engineers of pre-1973
batches bad become eligible for taking competitive examination, the
D department would be perfectly justified in keeping the examinatio~
open only to persons who have put in such long service and leaving
oth~rs to wait for the next examination. If for taking examination
this aspect introduces classification, it is based on rational and
intelligible differentia which has a nexus to the object sought to be
achieved. By the note, for a period of two years only pre-1973
E Junior Engineers who had cleared qualifying examination were
given a chance to take competitive examination. If this introduces
a classification, it is valid. It caters to a well-known situation in
service jurisprudence that there must be some ratio of candidates to
vacancies. And it is based on long experience as a rational basis
for classification. Viewed from this angle, we ffnd nothing in the
F policy underlying the note to rule (4) as being either discriminatory
or arbitrary or denying equality of opportunity in the matter of
promotion. It had the desired effect of not having a glutt of Junior
Engineers taking examination compared to fewer number of

G
vacancies. Length and experience were given recognition by the
note. The promotion can be thus by stages exposing the promotional
avenue gradually to persons having longer experience. This seems
to be the policy underlying the note and we see nothing improper
r
or unconstitutional in it.

However the situation has materially changed. More than 4
years elapsed since the note has appeared. One examination is

"
v. J. THOMAS v. UNION (Deasi. J.) 889

a ready taken. Even Junior Engineers of 1973 batch have by nowput A
in more than 12 years of service. Therefore £while upholding the
note and consequently rejecting the appeal we propose to give the
following directions to remove the irritants:
·-
(i) Successfui candidates of 1982 competitive exami·
nation, results of which have been declared pursuant to B
the directions of this Court, must be given promotion as
Assistant Engineer within a period of two months from
today.

(ii) The next qualifying examination permitting all
those who are eligible under the rules to appear at it must c
be held latest by July 31, 1985 and the results be declared
by September 30, 1985. ·

(iii) The next competitive examination must be held
by December 31, 1985 and the results by declared by Feb·
D
ruary 28, 1986.

(iv) Consequent promotions keeping in view the
vacancies available must be given within a period of three
months after the result is declared.
E
This appeal is disposed of in these terms with no order
as to costs.

F
M.L.A. Appeal dismissed.