SADASIVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is filed by the petitioners against the judgment of the learned single judge dismissing their Original Petition No. 3824 of 1979. The relevant facts necessary for the disposal of this appeal may be stated briefly as follows : The two appellants and respondents 3 to S joined the Ground Water Wing of the Agricultural Department as senior Drillers. It is not disputed that the appellants entered that cadre earlier than respondents 3 to 5 and were therefore seniors in the cadre of senior Drillers. Whereas the appellants hold the qualification of Diploma in Mechanical Engineering, respondents 3 to 5 hold regular Degree of Bachelors in Mechanical Engineering. The qualifications and method of appointment to the several posts in the Ground water Wing Department are governed by Ext. P-4 dated 7th May, 197 6. The post of senior Drillers could be filled up by direct recruitment, the essential educational qualification being a Degree or Diploma in Mechanical Engineering or in Mining and experience of three years in a Governmental organisation to have familiarity with water well drilling and construction. The next promotional post under Ext. P4 is that of Junior Drilling Engineer now re-designated as Assistant Engineer (Drilling ). THIS post could be filled up by promotion from the category of senior Drillers and in the absence of appropriate candidates being available, by direct recruitment. For promotion to the post of Junior Drilling Engineer, the educational qualifications prescribed are: a Degree in Mechanical or agricultural Engineering and experience in water well drilling rigs of net less than one year in a Governmental organisation or Diploma in Mechanical engineering or Agricultural Engineering with water well drilling rigs experience of not less than three years. The appellants and respondents 3 to 5 were promoted on different dates to the cadre of Junior Drilling Engineers. All the counsel are agreed that the following could be taken as their respective dates of promotion to the cadre of Junior Drilling Engineers: The appellants and respondents 3 and 5 were further promoted on a provisional basis to the next higher cadre of Drilling Engineers, now redesignated as Assistant Executive Engineer (Drilling ). Whereas appellant no. 1 came to be provisionally promoted on 2-5-1981, respondent No. 3 came to be provisionally promoted on 4-10-1979 and the 5th respondent came to be provisionally promoted on 29-5-1980. So far as respondent No. 4 is concerned, it was stated at the Bar that he was provisionally promoted with effect from 24-10-79 which order has been subsequently cancelled.

(2.) THE qualifications for earning eligibility for promotion on regular basis (described as transfer) to the cadre of Drilling engineers are as follows: (i) A degree in Mechanical or Agricultural Engineering (ii) Five years' experience as Junior Drilling Engineer or Agricultural Engineer; or (i) A Three year Diploma in Mechanical Engineering (ii) Ten years' experience as Junior Drilling Engineer or agricultural Engineer; or (i) A Three year Diploma in Mechanical Engineering. (ii) Ten years' experience as Junior Drilling Engineer or agricultural Engineering Supervisor. THE appellants have challenged the orders of provisional promotion of respondents 3 to 5, Exts. P9, P10 and P12. Ext. P10 having subsequently been cancelled, it is unnecessary to examine the case of the appellants in that behalf. THE other prayer of the appellants is for declaring as void the qualification regarding the period of experience prescribed by Ext. P. 4 differently for the Graduates and the Diploma-holders, on the ground that it is violative of Art. 14 of the Constitution.

(3.) THE contention of the appellants however is that whereas five years' experience has been prescribed for Graduates and 10 years' experience has been prescribed for Diploma-holders and this is violative of art. 14 of the Constitution. We have already observed that what has been done by the rule-making authority in prescribing different period of experience is to prescribe a higher period of experience for the promotional post of Drilling Engineer and the rule-making authority has the necessary competence to prescribe higher qualifications. THE appellants cannot contend that mere prescription of higher qualifications is per se violative of Art. 14 of the Constitution. THEy can challenge the prescription of higher qualification only by pleading and proving that such prescription is not relevant and has no nexus with the duties and responsibilities of the Drilling engineer. THE only pleadings of the appellants in this behalf are those contained in Grounds 5, 6 and 7 of the Original Petition. For the sake of convenience, the same are extracted below: "5. THE method of appointment to the post of Senior Driller is by way of direct recruitment by the Public Service Commission. To this post the qualification prescribed is only a Degree or Diploma in Mechanical engineering or in mining and familiarity with water well drilling and construction for three years in a Government organisation. So, both the degree-holders as well as the Diploma-holders are eligible to apply for the post of Senior Driller by direct recruitment. But in the matter of promotion to the post of Junior Drilling Engineer (redesignated as Assistant Engineer) the qualification relating to experience differs. In the case of Degree-holders the experience to be acquired is limited to that of one year only whereas in the case of Diploma holders it is three years. This is highly discriminatory. It Is with the intention of willfully delaying promotions legitimately due to the diploma-holders. By virtue of this provision In Ext. P4 a Degree-holder gels promotion earlier than a Diploma-holder in violation of R. 27 (c) of the Kerala state and Subordinate Services Rules. (6) Prescription of different periods of experience as qualification to be acquired for promotion to the posts of Junior Drilling engineer and Drilling Engineer in the case of Degree-holders is violative of art. 14 and 16 of the Constitution and hence liable to be struck down. (7) It is to be noted that in Ext. P. 5 no distinction is drawn between a Degree-holder and a Diploma-holder in the matter of acquisition of the qualification of experience to be promoted as Master Driller. THE same principle ought to have been applied in the mailer of promotion to the posts of junior Drilling Engineer and Drilling Engineer. " It is clear from the pleadings that the appellants have nowhere pleaded that the requirements of higher experience so far as Diploma holders are concerned is irrelevant and has no nexus with the duties and responsibilities attached to the post of Drilling Engineer. THE appellants would succeed only by establishing that the requirement of 10 years' experience is irrelevant or has no nexus with the duties and responsibilities attached to the post of Drilling Engineer. But we find total absence of pleadings in this behalf. THE Supreme Court has pointed out in Para. 26 and 27 of the judgment in air 1974 SC 1, as follows: "respondents have assailed the classification in the clearest terms but their challenge is purely doctrinaire. "academic or technical qualification can be germane only at the time of initial recruitment; for purposes of promotion efficiency and experience alone must count" this is the content of their challenge. THE challenge, at best, reflects the respondents' opinion on promotional opportunities in public service and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view. But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasonable basis, it has to be upheld. " Our reason for saying this is to emphasize that the respondents ought to have furnished particulars as to why, according to them, the classification between diploma-holders and degree-holders is not based on a rational consideration having nexus with the object sought to be achieved. In order to establish that the protection of the equal opportunity clause has been dented to them, it is not enough for the respondents to say that they have been treated differently from others, not even enough that a differential treatment has been accorded to them in comparison with others similarly circumstanced. Discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis. It was therefore incumbent on the respondents to plead and show that the classification of Assistant Engineers into those who hold diplomas and those who hold degrees is unreasonable and bears no rational nexus with its purported object Rather than do this, the respondents contended themselves by propounding an abstract theory that educational qualifications are germane at the stage of initial recruitment only. Omission to furnish the necessary particulars was construed by this Court in two cases as indicating that the plea of unlawful discrimination had no basis " THE position in this case is identical in that the appellants have not made any averments in support of their case that the prescription of higher experience for Diploma-holders has no nexus with the object sought to be achieved. In the absence of clear averments in this behalf the appellants' challenge based on Art. 14 must fail.