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Judgment
Mohd. Yaqoob Mir, J.—The two LPAs were heard by the Division Bench of this Court. Learned Judges constituting the Bench differed, as
a result thereof the points of difference have been stated as under:
Whether classification based on educational qualification alone is permissible or nexus with the objectives of the statute or policy has to be
established while making promotion to the higher post? 2. Whether Diploma Holder Engineers can be discriminated from Degree Holder Engineers
for the purpose of promotional avenues beyond a particular level by prescribing higher qualification.
In terms of Rule 36(2) of the Jammu and Kashmir High Court Rules, 1999, the matter has been placed before Hon'ble Chief Justice and
thereafter has been assigned. That is how these LPAs are placed before this Bench.
To precisely notice the factual aspect of the matter shall be advantageous for determination of the points of difference in its right perspective:
National Hydro Electric Power Corporation Limited (hereinafter for short referred to as ""NHPC"") is a Government company setup with the object
of planning, promoting and organising the integrated and efficient development of Hydro Power in all the spheres including planning, investigation,
generation and sale of bulk generated power at Hydro Power Stations.
The employees of NHPC were governed by the ""promotion policy and rules"" (hereinafter referred to as ""the Old Policy""). In terms whereof, for
purposes of promotion, employees of NHPC have been classified in the groups. For brevity the said Rule pertaining to classification is reproduced
here-under:
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GROUP SALARY GRADE GRADE CODE QUOTA FOR
PROMOTION
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a) Non-Supervisory Rs. 1100-1300 Rs. W1 W2 W3 From unskilled/
Group: 1125-1555 Rs. 1150- Semi-skilled to
i) Unskilled/Semi- 1640 skilled group 20%
skilled
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ii) Skilled Rs. 1180-2030 Rs. W4 W5 W6
1300-2305 Rs. 1450-
2440
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(b) Supervisory Rs. 1450-2440 Rs. S1 S2 S3 From skilled to
Group: 1640-2900 Rs. 2075- Supervisory Group
3265 Rs. 2000-3200 20%
Rs. 2250-3740
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(c) Rs. 2000-3500 E1 E2 E3 E4 E5 E6 From Supervisory
Executive/Managem Rs. 2250-3740 E7 E8 to Executive Group:
ent Group Rs. 2200-4000 a) For Tech/Deptts:
Rs. 2650-5100 i) Graduates 25% ii)
Rs. 3000-4500 Non-Graduates
Rs. 3700-5900 (Upto and including
Rs. 3000-5000 the scale of Rs. 3000-
Rs. 4600-6470 4500/CDA/3700-
Rs. 3700-5000 5900 (IDA) (b) For
Rs. 5200-6875 F&A & P&A
Rs.4500-5700 Rs. Departments 75%
5750-6975 Rs. 5100-
6700 Rs. 6500-7725
Rs. 5900-6700 Rs.
7250-8250
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With the passage of time NHPC introduced a new policy captioned ""Revised Promotion Policy and Rules for NHPC Executives"" (hereinafter
referred to as New Policy) vide its Part-I office order No. 14/97 dated 5.3.1997. In terms thereof Rule 5 will provide grade code and scale of
pay for the cluster. Same is reproduced hereunder:
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Cluster Grade Code Scale of pay (Rs.)
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A. E-2, E-2A, E-3, E-4 & E-5 4000-7475(IDA)
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2200-4000(CDA)/4500-8250(IDA)
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3000-4500(CDA/5650-9400(IDA)
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3000-5000(CDA)/6600-9600(IDA)
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3700-500(CDA)/7500-9900(IDA)
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Furthermore for promotion minimum qualifying period has been prescribed in Rule 8. Same is reproduced here-under:
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Salary Grade Qualifying Period
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From To Diploma Holders/ Engineering Graduates/
Graduates (Years) Professionally qualified.
(Years)
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E-l E-2 4 3
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E-2 E-2A 1 1
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E-2A E-3 5 4
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E-3 E-4 5 4
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E-4 E-5 5 4
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E-5 E-6 - 3
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E-6 E-7 - 3
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E-7 E-8 - 4
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E-8 E-9 - 2
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The Degree Holder Engineers as well as members of Accountancy branch felt aggrieved of Rule 8, 9.8, 10.1, 10.4, 11.3, 14.1, 14.2, 18, 8,
19.1 and 19.2, therefore, filed two writ petitions i.e. SWP No. 515/97 and SWP No. 885/97.
In terms of Rule 8 of the New Policy promotional avenues to the Diploma Holder Engineers/other Graduates have been restricted to level E-5
only. In addition for promotion from E-l to E-5, different qualifying periods have been prescribed as is clearly indicated in Rule 8 quoted
hereinabove.
The first contention of the Appellants is that the Respondents could not introduce New Policy without their consent as by introduction of New
Policy their service conditions are altered and they are subjected to discrimination.
This contention stand rightly repelled by Brother Mr. Justice Virender Singh, as in terms of clause 3 of the Old Promotion Policy Respondents
have discretion to make any change in the promotion policy. Clause 3 is reproduced here-under:
Keeping in view the changes in internal conditions and external/environments, the Corporation may at any time and at its discretion make any
changes in the Promotion Policy, as stated herein, if it is satisfied that such changes are necessary in the overall interest of the organisation.
The plain reading of clause 3 would reveal that NHPC is clothed with the discretion to make changes in the promotion policy. However/same
has to have nexus with the internal conditions and external environments and such changes must be necessary in the overall interest of the
organisation.
In terms of Rule 8 of New Policy the changes have been introduced in the executive/management group based on classification in educational
qualification. The object for introducing such changes has been projected in the counter affidavit, wherein it is pleaded that in view of present
scenario of globalisation of economy, NHPC is required to run on sound commercial lines and has to maintain higher standards. For achieving the
desired results for public good and public benefit, NHPC requires efficient, competent and professional executives. At the same time it has been
pleaded that the employees are the most precious assets of the organisation who need constant development. In short NHPC is dependent on the
skill, ability and commitment of its employees. The employees who have been put in different groups finally reach the executive group. The
executive group is treated to be an important group. So changes have been introduced vis-a-vis promotion level within said group based on the
classification of educational qualification. Beyond level E-5 it is only the Graduate Engineers and professionally qualified who can be considered for
promotion to level E-6, level E-7 and level E-8.
The contention of the Appellants is that such classification is discriminatory as at the time when they had joined NHPC, they were under this
assurance in terms of the Old Policy to reach to the highest level of the executive. The introduction of New Policy relating to change in promotion
of the executives has shattered their dreams of reaching to the highest level in the executives.
The learned Single Judge while placing reliance on various judgments concluded that the changed criteria projected to operate to the prejudice
of the writ Petitioners is devoid of merit. Learned Single Judge has also opined that the writ Petitioners in terms of rule 8 of the New Policy have
also been given chance to improve their educational qualification so as to enable them for higher promotion i.e. beyond Level E-5.
The most important point on which Learned Judges constituting the Division Bench have deferred is as to ""whether classification based on
educational qualification alone is permissible."" The whole controversy revolves round this issue.
For promotion beyond Level E-5, an Engineer has to be a graduate and from Accountancy branch the employee is required to have
qualification, such as Chattered Accounts Degree, ICWA and Post-graduation in Business Management of two years from a recognised
University.
Learned Brother Mr. Justice Virender Singh while referring to the Constitutional judgment of the Apex Court rendered in case The State of
Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, and after quoting various paragraphs of the said judgment has concluded that there
is no option but to hold that New Policy of the Corporation does not suffer from any infirmity. Classification based on educational qualification is
correct.
However, with respect learned Brother Judge has not noticed another Constitutional judgment of the Supreme Court rendered in the case titled
Mohammad Shujat Ali and Others Vs. Union of India (UOI) and Others, , wherein it has been held that discrimination based on educational
qualification not obligated by the nature of duties or responsibilities of the higher post would be violative of Article 14 of the Constitution.
I agree with learned Brother Justice Hali that classification based on educational qualification shall not be sole criteria for promotion of the
employees who are integrated in one class. Same view is supported by the judgment of the Hon'ble Apex Court rendered in Mohammad Shujat
Ali's case, wherein it has been held that classification based on educational qualification has to be obligated by the nature of duties or the higher
responsibilities.
It is an admitted fact that both the Diploma Holder Engineers and Graduate Engineers are in executive group. Though they have come from
different sources but have integrated. The moment they have integrated, their promotion avenues to different levels within the group is permissible
and prescribed but is limited to level E-5 and beyond E-5, it is only available to Graduate Engineers and professionally qualified
employees(persons).
Now the question which is to be ascertained is as to whether beyond level E-5 the nature of duties and responsibilities are higher which require
higher qualification. Same shall be in tune with clause 3 of the Old Policy which empowers NHPC to introduce change in promotional avenues of
the executives when required for achieving higher standards and such changes are found necessary in the interests of the organisation.
This is the categoric stand of NHPC that in view of present scenario of globalisation of economy, Corporation is to be run on sound
commercial lines, requirement of efficient and professional executives is indispensable. So it is in this background in terms of New Policy changes
have been introduced in the promotional avenues of the executives.
The point of difference as referred to above is to be answered by holding that classification based on educational qualification has to have
nexus with the objectives of statute/policy. The classification based on reason, executive pragmatism and experience are totally linked with
efficiency in administration. When it will be so, classification cannot be termed to be impermissible.
Both Diploma Holders and Graduate Engineers and other Graduate and professionally qualified Accountancy employees are in executive
group so are to be treated alike being equal but such equality between such classes regardless of qualification, kind of job, nature of responsibilities
and performance of the employees is impracticable. After all qualification, kind of job and nature of responsibilities and the skill have a direct link
with the objectives of the policy.
The policy decision of the Corporation cannot be interfered with unless it is specifically pleaded and proved that the duties/responsibilities and
nature of job beyond level E-5 are such which do not require any higher qualification. When it can be so, then seniority coupled with merit shall
have the preference.
In the Constitutional judgment rendered by the Hon'ble Supreme court in the case titled Mohammad Shujat Ali and Others Vs. Union of India
(UOI) and Others, , it has been held that discrimination based on educational qualification has to be obligated by the nature of duties or
responsibilities of the higher post otherwise it would offend Article 14 of the Constitution.
The point of difference is further answered by the recent judgment of the Hon'ble Apex Court titled Dilip Kumar Garg and Anr. v. State of UP
and Ors. reported AIR 2009 SCW 2374. It shall be quite apt to quote para 10, 11, 12, 13, 14, 17 and 18:
In State of Jammu & Kashmir v. Triloki Nath Khosa and Ors. AIR 1974 SC 1, the rule which provide 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.
However, in Mohammad Shujat Ali and Others Vs. Union of India (UOI) and Others, , 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.
In Roop Chand Adlakha and Others Vs. Delhi Development Authority and Others, , this Court while taking note of T.N. Khosa's case (supra)
and Mohd. Shujat Ali's case (supra) observed in para 7 as under:
....If the differences in the qualification has a reasonable relation to the nature of duties and responsibilities, that go with and are attendant upon the
promotional-post, the more advantageous treatment of those who possess higher technical qualification can be legitimized on the doctrine of
classification. There may, conceivably, be cases where the differences in the educational qualifications as may not be sufficient to give any
preferential treatment to one class of candidates as against another. Whether the classification is reasonable or not must, therefore, necessarily
depend upon facts of each case and the circumstances obtaining at the relevant time. When the State make a classification between two sources,
unless the vice of the classification is writ large on the face of it, the person assailing the classification must show that it is unreasonable and violative
of Article 14. A wooden equality as between all classes of employees irrespective of all distinctions or qualifications, or job-requirements is neither
constitutionally compelled nor practically meaningful. This Court in The General Manager, South Central Railway, Secunderabad and Another Vs.
A.V.R. Siddhantti and Others, observed:
...A wooden equality as between all classes of employees regardless of qualifications, kind of jobs, nature of responsibility and performance of the
employees is not intended, nor is it practicable if the administration is to run. Indeed, the maintenance of such a 'classless' and undiscerning
'equality' where, in reality, glaring inequalities and intelligible differentia exist, will deprive the pragmatism and experience having a direct relation
with the achievement of efficiency in administration, is permissible....
In P. Murugesan and Others Vs. State of Tamil Nadu and Others, , this Court held up the validity of the rule prescribing the ratio of 3:1
between graduates and diploma holders in promotion as also the longer qualifying period for service for diploma holders. While noting the earlier
decisions a three-Judge Bench of this Court observed:
This decision clearly supports the Appellant's contention and goes to sustain the validity of the impugned amendment. If the diploma holders
can be barred altogether from promotion, it is difficult to appreciate how and why is the rule-making authority precluded from restricting the
promotion. The rule-making authority may be of the opinion, having regard to the efficiency of the administration and other relevant circumstances
that while it is not necessary to bar the diploma holders from promotion altogether, their chances of promotion should be restricted. On principle,
there is no basis for the contention that only two options are open to a rule-making authority - either bar the diploma holders altogether or allow
them unrestricted promotion on par with the graduates.
In J. Ranga Swamy Vs. Government of Andhra Pradesh and Others, and in State of Rajasthan and Others Vs. Lata Arun, , this Court
observed that the eligibility qualification for admission to a course or for recruitment or promotion in service are matters to be considered by the
appropriate authority, and not by the Courts.
In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The
administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and
it is not for this Court to sit over their decision like a Court of Appeal. The administrative authorities have experience in administration, and the
Court must respect this, and should not interfere readily with administrative decision.
The decision to treat all Junior Engineers, whether degree holders or diploma holders, as equals for the purpose of promotion is a policy
decision, and it is well settled that this Court should not ordinarily interfere in policy decisions unless there is clear violation of some constitutional
provision or the statute. We find no such violation in this case.
The law as has been laid down is quite applicable to the present case, therefore, it has to be held that the classification based on educational
qualification alone is not permissible, it must have nexus with the objectives of the statute/policy. The nature of duties beyond Level E-5 shall be
pleaded by the Corporation be such which require higher qualification for being efficient, competent and professional executives, whereas
pleadings of the Appellants should have been such which would show that the skill, ability and commitment attained by experience while rendering
service in the Corporation irrespective of educational qualification makes the employees efficient, competent and professionally sound which is the
requirement for achieving the object of the new policy.
Coming to the next point of difference i.e. ""as to whether Diploma Holder Engineers can be discriminated from Degree Holder Engineers for
the purposes of promotional avenues beyond a particular level by prescribing higher qualification.
It is nowhere pleaded that the nature of duties and responsibilities beyond level E-5 do not require any higher qualification and functioning is
such which can be well administered even by the Diploma Holder Engineers, whereas on the other hand Respondents in their counter affidavit in no
uncertain terms have qualified and projected that the skill, ability and commitment of the employees coupled with efficient, competent and
professional, executives is indispensable for the proper growth of the Corporation so as to run it on sound commercial lines for the public good and
it is also specifically pleaded that Rule 8 of the New Policy itself take care of the Diploma Holder Engineers and others by providing that they shall
also be eligible for such promotion beyond level E-5 on attainment of requisite educational qualification, so they have not been divested totally.
They have been given chance to excel their qualification.
The moot point for consideration again emerges, as to whether classification based on educational qualification in view of nature of duties and
responsibilities of the executives beyond level E-5 is indispensable or as to whether job profile beyond level E-5 is such which only requires
expertise and competence so classification based on educational qualification alone is not permissible.
Pleadings on both sides in this behalf are deficient, therefore, same are required to be supplemented by both the parties, only then validity of
Rule 8 can be determined.
I also agree with learned Brother Hali in view of the judgments referred to in the judgment framed by His Lordships and more particularly the
Constitutional judgment rendered in Mohammad Shujat Ali's case referred to above, that classification based on educational qualification is
permissible only when it has nexus with the objectives sought to be achieved and I also agree that learned Single Judge has not taken into
consideration this important aspect of the matter while disposing of the writ petition.
It is has to be clarified as to what is the nature of the duties or responsibilities of the post beyond level E-5 which would persuade the Court to
hold that classification based on educational qualification has nexus with the objectives of the policy.
No doubt the Appellants very intelligently during the pendence of matter before the Bench have filed a supplementary affidavit on 7.9.2009
wherein it has been pleaded that the nature of duties is same and there is no difference in the duties performed by the executive covered by the
cluster. The posts are interchangeable amongst Diploma Holder Engineers and Degree Holder Engineers of respective disciplines and common
seniority is maintained, it is impermissible to form any opinion on the basis of this supplementary affidavit unless other-side has reasonable
opportunity to counter the same. Filing of the supplementary affidavit also is indicative of the fact that pleadings of the Appellants were also
deficient in its material propositions. It is also worth to be noted that the pleadings in the writ petition No. 328/2000 were not complete as
rejoinder has remained to be filed before the Writ Court.
In support of respective contentions learned Counsel for the parties also referred to following judgments:
Chandra Gupta, I.F.S. Vs. The Secretary, Govt. of India, Ministry of Environment and Forests and others,
K. Jagadeesan Vs. Union of India and others,
R.L. Bansal and others Vs. Union of India and others,
AIR 1998 SC 558
AIR 2008 SCW 1967
AIR 2009 SCW 2374
AIR 2009 SCW 3930
AIR 2007 SCW 448
AIR 2002 SCW 4286
1998 (7) SC 677
S.L. Sachdev and Another Vs. Union of India (UOI) and Others,
N. Abdul Basheer and Others Vs. K.K. Karunakaran and Others,
The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others,
Food Corporation of India Etc. Etc. Vs. Om Prakash Sharma and Others,
Since the judgment reported in AIR 2009 SCW 2374 is later in point of time and in view of the Constitutional Bench judgments referred to
therein, for disposal of these appeals above referred judgments are not required to be discussed one by one.
I agree with learned Brother Mr. Justice Hali that the classification based on educational qualification alone is not permissible. Such
classification is required to have nexus with the objectives of the policy while making promotion to the higher posts. Unless it is established that
classification based on educational qualification has nexus with the objectives of the policy i.e. duties and responsibilities of the posts beyond Level
E-5 are such which require higher qualification, Diploma Holder Engineers or low qualified in accountancy branch cannot be discriminated and
deprived of promotion to the posts beyond Level E-5. Setting aside of the judgment of the Writ Court is agreed to. Same is set aside, case is
remanded back to the Writ Court for deciding the matter afresh after permitting the parties to supplement their pleadings in the light of observations
made hereinabove.
Appeals accordingly succeed.
Both the writ petitions be listed before Writ Court.