STATE OF MYSORE v. M. N. KRISHNA MURTHY & Ors.

The two respondents, who were petitioners before the High Court had joined the Accounts Service in the Controller's Office of former Mysore State as first and second division clerks. Consequent upon the aboliticm of the Controller's Office. the petitioner began working Accounts Clerks under the Chief Engineer, PWD. On 31-10-53, Divisional Accounts Cadre was created by the Mysore Govt. under the administrative control of the Chief Engineer. Both the petitioners passed the presC:ribed examinations and were ~bsorbed i.n the Divisional Accounts Jn April, 1959, the PWD Reorganisation Committee recommend Cadre. ed the transfer of the PWD Accounts Branch the newly set-up Controller of State Accounts. Accordingly, the petitioners came under the administrative control of the Controller and the designation of their office was changed to that of "Accounts Superintendent". On 15-5-1959, the two formerly separate U!rtits of the Accounts service, namely PWD Ac!,counts Unit under the Chief Engineer, PWD and the Local Funds Audit Unit. known also as "the said Accounts Department" came under the common admini>trative control of the Controller of State Accounts. On 26-5-59. the Mysore State Accounts Service Cadre Recruitment Rules were im1cd and combined cadre strengths were fixed. On 30-8-67, the State Govt. issued three Notifications amending the 1959 Rules with retrospective effect. The petitioners c'1allenged the Notifications tn the High Court as being violative of Articles 14 an<l 16 (I) of the Constitu tion of India. The High Court quashed the three notifications and the promotions of the respondents in the Writ Petitio,n. G Dismissing the appeal. 1 } HELD: (i) The High Court rightly declared the purported amend- ments in the rules. of 1959, which sought to disintegrate a service which had been ·integrated, to be 11/trtt rires. Such an1endmcnts made for the 'purpose of justifying the illegal promolion made, in the teeth of the pro tection conferred by Articles P :ind 16(1) of the Constitution of India upon Indian citizc,n:s in Govcrn1nent service. c'.a,uld not be upheld. The power of n1aking rules rek1ting to rccruitn1ent and conditio.ns of service ·,1n<lcr the prorisO to Article 309 coulJ not be used to validate unconsti tutioP.nl discrimination in pron1otional chancies of Govcrnn1c:nt servants who belong to the same category. [579CJ 2-L499Sup. Cl.'73 H 576 SUPREME COURT REPORTS [1973) 2 s.c.R. Ine't"ality of opportunity of promotion, though not unconstitutional A per se, must be justilied on the strenglih of rational criteria co-related to the object of such a difference must be presumed to be selection of the most competent from amongst those possessi.'l>g qualifications and b:ick grounds entitling them to be considered as members of one class. Articles 14 and 16(1) -of the Constitution must be held to be violated when member of one class are not even considered for promotion. [580GJ State of Mysore v. Padmanabhacharya AIR 1966 S.C. 602 State of Punjab v. Joginder Singh, AIR 1963 S.C. 913 and K. M. Bakshi v. Union of India [1965] Supp. 2 S.C.R. 169 relied on. B Ram Lal Wadhwa v. The State of Haryana AIR 1972 S.C. 1982 anti S. G. Jatsinghani v. Union of /ndla [1967] 2 S.C.R. 703 distinguished. (ii) It is a well recogl>ised practice of the Supreme Court not allow new points to be raised for the first time in the Supreme Court C when they involve investigation of questions of fact. [577GJ C1v1L APPHLATE JURISDICTION : Civil Appeals Nos. 193 & 194 of 1971. Appeal, by special leave from the judgment and order dated April 11, 1969 of the Mysore High Court at Bangalore in Writ D Petitions Nos. J~l(i and 2918 of 1967. A. R. Som Nath lytr, and M. Veerappa, for the appellant (in both the appeals). R. B. Datar and S. N. Prasad for respondent No. 1 (in both the appeals). H. Ramajois S. S. Khanduja ·and Laiita Kohli, for respon dents Nos. 2 & 4-8 & Interveners (in M. Choudhajah & 14 others in C.A. No. 193/71 ). A. G. Ratnaparkhi for Interveners (C. Y. Shastri & 19 01'!1. in C.A. No. 193/71). The Judgment of the Court was .delivered by BEG, J. The State of Mysore has come to this Court wit!Uwci the common appea.ls now before us by Special Leave against judgment on two Writ Petitions which were allowed. The High Court of Mysore had quashed three State Government Notifications Nos. GSRs_ 384, and 392 and 303, dated 30th August, l967, amending the Mysore State Accounts Services (Recruitment) Rules, 1959, and the promotions of Respondents 3 to 8 of in Wri'. Petition No· 1416/67. h had directed the State of Mysore t-J consider the cases of the petitioners with those of Respondents 3 to 8 for promo·~ion before it under the Mysore State Accounts Services (Recruitment) Rules 1959, made under Article 309 of the Constitution of India. notified on 26-5-1959. E F G H MYSORE V, M. N. KRISHNA MURTHY (Beg, J.) 577 A The two petitioners before the High Court, who are ro, pon- dents before us, had joined the Accounts' services .in the Compt roller's office of the former Mysore State as first and second Division Clerks. Cons~quent upon the abolition of the Comptroller's office the petitioners began working as Accounts Clerks under the Chief Engineer, P.W.D. On 31st October, 1953, a Divisional Accounts' B Cadre, in the scale of Rs. 130-335 was created by the Mysore Government under the administrative control of the Chief Engineer. Both the petitioners passed ·the prescribed examinations and were absorbed in the Divisional Accounts' Cadre. It .. 1ppears that in April, 1959, the P. W.D. Reorganisation Committee had recom mended the transfer of the P.W.D. Accounts' Branch in toto to the newly set up Controller of State Accounts. In a-ccordance with this recommendation, the petitioners came under the administra tive control of the Controlit:r and tlle designation of their office was changed to that of "Accounts' Superintendent". On 151h May, 1959, the two formerly separate units of the Accounts service, namely the P .W.D. Accou. Iits unit, under the Chief Engineer of P.W.D., and the Local Fund Audit unit, known also as "the State D Accounts' Department", came under the common administrative control of the Controller of State Accounts. ·On 26h May, 1959, the Mysore State Accounts Services' Cadre and Recruitment Rules were issued and combined cadre strength were fixed. C It pointed out The High Court after examining the rules o.f 1959, in the E context of all the orders, proceeding and following the promulga tion of these Rules, concluded : "There cannot be the slightest doubt from these rules that a clear and complete integration was brought about between the two units". qualifications and status of the officers of the .formerly separate units were identical, their work was of the same nature, the re cruiting authorities were the same, the standards observed and tests prescribed for entry into the formerly separate units were identical. The result of the Rules of 1959 was that an artificial distinction based on mere separate control had been abolished so that both units came under the legally single administrative con trol of the Accounts' Department incharge of the Controller of State Accounts. The petitioners became absorbed in what was legally a single permanent service regulated by uniform rules. F G After examining the cases of 'the petitioners that, in the matter of promotions, they were discriminated against simply because they had worked in the P.W.D. Accounts UnH, which had ceased to exist, the High Court held that •the petitioners' grievances were justified. It found that figures showing the number of appoi111ments of members of the same service derived from the formerly separate units indicated "a striking disparity in the promotional oppor tunities between the officers of the 1wo wings in the same cadres". H 578 SUPREME COURT REPORTS [1973] 2 S.C.R. It said : "While the Rules oi 1959 integrated the {WO wings into A. one service and provided for promotion on the basis of seniority cum-merit, the impugned NO{ifications fixing up the cadre streng~h reduce the number of promotional posts available to the Public Works Accounts Unit to a very low figure as compared with the promotional opportunities open to tht: officers in the other wing". It had therefore. struck down the violati~ns of the Const, itutional guarantees given by Article 14 and 16 ( I) of the Constitution. impugned Notification; as B The learned Counsel for the State of Mysore has contended: fin; ly, that the petitioners, now respondents before us, were never promoted or appointed to offices held by them under the rules oi C 1959 so 'that they could not complain of denial of equality of promotional chances; and, secondly, that the amendments made retrospectively in the rules in 1967, justifying the differences of promotional chances between the two wings of the same service, were perfectly legal and bore a rational nexus to the object of the differences made. D So far as the first contention is concerned, we are unable to entertain it for the first time in this Court. We do not find any indication that the point, even if such a position was taken on behalf of the State, was argued at all before the Mysore High Court. The submissic,:i. that the High Court had wrongly proceeded on the assumption that the pefrtioners were promoted and appointed E under the rules of the integrated service although the point was argued before the Mysore High Court, is not borne out even by any assertion in the application made by the appellant under Article 132 and 133 ( 1 )( c) of the Constitution of India before the Mysore High Court. Our attention was invited to a para graph in that application where it was submitted that the "High F res_pondents were Court should have held" that the answering placed "in independent charge of the duties of Assistant Commis sioner without conferring any right of benefit of promotion" But, this submission does not appear to us to meet the objection that the point was not urged, when the petitions were argued before the High Court, and the petitioners were not entitled to the b~nefit of the Rules of 1959 on the ground that they were not promoted G to the posts held by them in the service. It is a well recognised practice o.f this Court not to allow new points to be raised for the first time in this Court particularly when they involve investiga tion of questions of fact We, therefore, do not propose to deal with a controversy which does not arise for consideration before us. The question which remains for consideration by us is the one relating to the validity of a division two classes of members of 1he same service, belonging to the same cadres, for H MYSORE V, M. N. KRISHNA MURTHY (Beg, J.) 579 to differences A purposes of a difference to be made in their promotional chances. Learned Counsel for the State has sought to justify this difference in promotional chances by a reference historical backgrounds and to the practice of making the distinc tion in promotional chances. The Mysore High Court had very rightly observed that neither a fortuitous artificial division in the B past nor the unconstitutional practice of making an unju~tifiable discrimination in promotional chances of Government servants belonging to what was really a single category, without any refer ence either to merit or seniority, or educational qualifications, could just.ify the differences in promotional chances. We think that it had rightly declared the purported amendments in the rules of C 1959, which sought to disintegrate a service which had been in tegrnted, to be ultra vires. Such amendments made for the pur pose of justifying the illegal promotions made, in the teeth o.f the protection conferred by Articles 14 and 16 (l) of the Constitution of India upon Indian citizens in Government service, could not be upheld. D E G The High Court rightly relied on State of Mysore v. Padmana- bilacharya (') to hold 1hat the power of making rules relating to recruitment and conditions of service under the pro¥iso to Article 309 could not be used •to validate .unconstitutional discrimination in promotional chances of Government servants who belong to the same category. that a Government It must be understood servant whose case is considered for promotion but who fails to bie selected on an application of just and reasonable criteria, such as that found in the merit-cum-seniority rule found in the Rules of 1959, cannot complain of discrimination. But, what the peti tioners had complained of and esiablished·was that their cases for promotion were not considered at all under these Rules on the false premise that they belong to a class which disallles them from the offices t;,e which they considered themselves entitled. The effect of order of the Mysore High Court was only that cases of the peti tioners, now respondents before us, will be considered, in accord ance with Rules of 1959, in preparing the seniority list on merit cum-seniority basis. All that the order of the High Court enjoins is that the petitioners before it must not be ignored simply on the assumption that the source of their initial recruitment debars the consideration of their merits for promotion. F obtaining equal consideration for promotion to Learned Counsel for the Staie of Mysore had attempted to rely strongly on Ram Lal Waahwa & Anr. v. The State of Haryana & Ors.(') and S. C. Jaisinghani v. Union of India('). In Ram Lal H W adhwa' s case (supra); the majority of learned Judges of this {:) A!.R. 1966 S.C. 602. (2) A.J.R. 1972 S.C. 1982. (l) (1967) 2 S.C.R. 703. 580 SUPREME COURT REPORTS [1973] 2 s.c.R. Court had reached the conclusion that the historical and other special reasons e1'isting, on the fac1s of that particular case, justi fied the difference made in promotional chances of the teachers coming from two different sources. We think that Wadhwa's case was decided on its own facts, the most import!lnt of which was that, after full consideration of the pros and cons of various alter natives before it, the Government concerned had come to the con cluo.ion that the provincialised cadre must b.e gradually and not suddenly eliminated. formal decision 10 integrate the two branches as is the case ~fore us. The rnles before us levy no doubt whatsoever, as we have already point ed or!', that a complete integration of the service whose members came originally from two sources had been actually accomplished. That was not the position in Wadhwa's case which could not, therefore; help the appellant. In 1hat case, there was no actual Similarly, Jaisinghani's case (supra) was also dis·tinguishable, as it has been rightly distinguished by the Mysore High Court, on facts of that particular case. There quotas for promotion had been fixed by 1he Government in exercise of a statutory power on rational and reasonable criteria. In the case before us, the amend ments in existing rules were sought to be made for the purpose of validating what, as !he Mysore High Court had rightly held, were viclmions of Articles 14 and 16 of the Constitution. Qther cases mentioned by the Mysore High Court i.e. State of Punfab v. Joginder Singh(') and K. M. Bakshi v. Union of India(") also show that inequalHy ol' opportunity of promotion, though not unconstitutional per se; must be justified on the streng1h of rational criteria co.related to the object for which the difference is made. In the case of Government servants, !he object of such a difference must be presumed to be a selection of the most compe tent from amongst those posse5Sing qualifications and backgrounds entitling them 'lo be considered as members of one class. In some cases, quotas may have to be fixed between what are different !i, classes or sour~es for pro1.notion on grounds of public policy. on the facts of a particular case, the classes to be considered are really different, iriequa!Yty of opportunity in. promotional chances may be justifiable. On the contrary, if the facts of a particular case disclose no such rational distinction between members of what is found to be really a single class no class distinctions can be made in selecting the best. Articles 14 and 16(1) oi' the Con stitution must be held to be violated when members of one class me n01 even considered for promotion. The case before us falls. in our opinion, in the latter type of cases where th~ difference in promotional opportunities of those who were wrongly divided into <() A.LR. 1963 S. C. 9U. (2) (1965] Suppl.'.! S. C. R. 160. A B c D E F G H '.l!:YSORE V, M. N. KRISHNA MURTHY (Beg, J.) 581 A two classes for thi~ purpose only could nCYI be justified· on any rational grounds. Learned Counsel for the State was unable to indicate any such ground to us. We, therefore, think that Mysore High Court rightly held that the impugned notifications were unconstitutional. Consequently, we dismiss these appeals with one set oi costs. S.B.W. Appeals dismissed.