Chandan Banerjee & Ors. vs Krishna Prosad Ghosh & Ors.

HELD: 1. While creating supernumerary posts, Kolkata Municipal Corporation-KMC has not completely restricted the promotional avenues of diploma-holder SAEs who have stagnated in their service. It has provided adequate opportunity to them to advance in their career, although on different terms and conditions. Thus, the promotional policy of KMC for supernumerary posts is not irrational or arbitrary or to the detriment of diploma holder SAEs. In matters of public policy and public employment, the legislature or its delegate must be given sufficient room to decide the quality of individuals it seeks to employ as against different positions. As long as these decisions are not arbitrary, this Court must refrain from interfering in the policy domain. Thus, the impugned circular and the subsequent gradation list do not suffer from the vice of arbitrariness and discrimination. The decision of the Division Bench of the High Court is upheld. [Paras 42, 43][748-E-H; 749-A]

2. The principles as regards classification made for purpose of promotion/selection of employees are as follows: (i)

(ii)

(iii)

Classification between persons must not produce artificial inequalities. The classification must be founded on a reasonable basis and must bear nexus to the object and purpose sought to be achieved to pass the muster of Articles 14 and 16;

Judicial review in matters of classification is limited to a determination of whether the classification is reasonable and bears a nexus to the object sought to be achieved. Courts cannot indulge in a mathematical evaluation of the basis of classification or replace the wisdom of the legislature or its delegate with their own;

Generally speaking, educational qualification is a valid ground for classification between persons of the same class in matters of promotion and is not violative of Articles 14 and 16 of the Constitution;

(iv)

Persons drawn from different sources and integrated into a common class can be differentiated on grounds of educational qualification for the purpose of promotion, where this bears a nexus with the efficiency required in the promotional post;

(v)

Educational qualification may be used for introducing quotas for promotion for a certain class of persons; or may even be used to restrict promotion entirely to one class, to the exclusion of others;

(vi)

Educational qualification may be used as a criterion for classification for promotion to increase administrative efficiency at the higher posts; and

(vii) However, a classification made on grounds of educational qualification should bear nexus to the purpose of the classification or the extent of differences in qualifications. [Para 26][743-A-G] State of Mysore v. P Narasing Rao AIR 1968 SC 349; Ganga Ram v. Union of India (1970) 1 SCC 377 : [1970]

3 SCR 481; Union of India v. Dr (Mrs) SB Kohli (1973)

3 SCC 592; Roshan Lal Tandon v. Union of India AIR 1967 SC 1889; Mohammed Shujat Ali v. Union of India (1973) 3 SCC 76; Roop Chand Adlakha v. Delhi Development Authority 1989 Supp (1) SCC 116; M Rathinaswami v. State of Tamil Nadu (2009) 2 SCC (LS) 101; State of Uttarakhand v. SK Singh (2019) 10 SCC

49 : [2019] (10) JT 264; AS Iyer v. V Balasubramanyam (1980) 1 SCC 634 : [1980] 1 SCR 1036; Union of India v. Atul Shukla (2014) 10 SCC 432:[2014] 14 SCR 1151; Maharashtra Forest Guards and Foresters Union v. State of Maharashtra (2018) 1 SCC 149 : [2017] 14 SCR 446; Food Corporation of India v. Om Prakash (1998) 7 SCC 676 : [1998] 3 SCR 1193 – referred to.

3.1 The appellants have not contested the fact that educational qualification is not a valid ground for classification in matters of public employment, or that promotional avenues are not available to diploma holder SAEs to the post of AE. The appellants seek to challenge the impugned circular on the limited ground that the eligibility conditions for promotion to the supernumerary posts of AE are different for diploma-holder SAEs, who require twenty-five years of experience to be eligible, as opposed to degree-holder SAEs, who require thirteen years of experience. [Para 28][744-A-C]

3.2 The reading of Trilokinath Khosa’s case as urged by the appellants is fundamentally flawed. In Trilokinath Khosa’s case, the Court had adverted to the well-established principle that once direct recruits and promotees are integrated into a common pool, they cannot be treated differently based on the ‘source of recruitment’. This however does not imply that they cannot be classified on other reasonable grounds. Thus, whether there are two different streams of recruitment, or a single source of recruitment merged into a common pool, the classification that was upheld in Trilokinath Khosa’s case was based on educational qualification which was linked to the purpose of enhancing administrative efficiency in the organization. [Para 30][744-E, F-H]

State of Jammu & Kashmir v. Shri Trilokinath Khosa (1974) 1 SCC 19:[1974] 1 SCR 771 – relied on.

3.3 The Recruitment Regulations and their subsequent amendments by KMC suggest that the administration has continued to create a distinction between degree and diploma holder SAEs for the purpose of promotion. In regular promotion, this distinction is made by way of a quota for degree-holder SAEs, while in terms of supernumerary promotion, it has been by way of difference in eligibility conditions. Be it one way or the other, it is evident that the administration has sought to employ a higher number of degree holders at the position of AE than diploma holders. The reason for the increase in degree-holders for the post of AEs could be due to circumstances such as the higher level of technical expertise required for the superior post, increase in managerial and technical workload, and enhancement in supervisory functions. It is not amiss to draw a conclusion that a higher educational degree, coupled with stipulated years of experience, could bring in certain benefits to the position of an AE that the management desires. In any case, it is not for this Court to decide whether a higher educational qualification would fulfil the objectives of the management, as long as the nexus between the educational qualification and the need for higher efficiency is not absurd, irrational or arbitrary. The educational qualifications may be linked to higher administrative efficiency and thus the classification on this basis is not in violation of Articles 14 and 16 of the Constitution. [Para 38][746-C-E, G-H; 747-A-B]

3.4 The term “supernumerary” is defined as “present in excess of the normal or requisite number”, or “not belonging to a regular staff but engaged for extra work”. A “supernumerary post” is defined as “a post exceeding the usual stated or prescribed number”. The impugned circular indicates that these supernumerary posts were created for removal of stagnation amongst SAEs. It cannot be denied that SAEs once promoted to the post of an AE in these supernumerary posts would be performing the task and functions of an AE. Thus, it is not merely a change in the designation of an SAE to an AE, but involves an increase in workload, supervisory functions, and performance of the regular functions of an AE. Since that is the case, there is no reason why the rationale underlying the need for higher degreeholders in the AE cadre through regular promotion would not be applicable in the case of supernumerary posts. In other words, a challenge to the impugned circular could not be sustained if, instead of providing different eligibility conditions, KMC had provided for creation of a fixed number of supernumerary posts out of which a proportion was reserved for degree-holder SAEs. By the very reason that these posts are supernumerary and depend on the number of eligible persons, a fixed number of positions could not have been anticipated. It is perhaps for this reason that KMC sought to digress from the regular method of granting promotion and opted to introduce separate eligibility conditions. Therefore, the separate eligibility conditions for promotion to supernumerary AE posts on the basis of educational qualification is in line with the past promotion practices of KMC and is not an unreasonable classification. [Para 40][747-D-G; 748-A-C]

The Concise Oxford English Dictionary (Judy Pearsall ed., 10th ed, 1999); P. Ramanatha Aiyar, THE LAW LEXICON, THE ENCYLOPAEDIC LAW

DICTIONARY p. 1838 – referred to.

3.5 Even otherwise, Clause 3 of the impugned circular provides that these supernumerary posts would be adjusted as and when a vacancy becomes available within the sanctioned posts of an AE. Further, Clause 5 stipulates that there would be no change in the Recruitment Regulations for the posts of AE. What this means is that the regular promotion of degree or diploma holder SAEs is not impacted by way of the impugned circular. As and when vacancies arise in the sanctioned AE posts, the AEs holding supernumerary posts would be subject to the Recruitment Regulations and the selection process for promotion of an SAE to an AE. The supernumerary posts are personal to the eligible AEs and will lapse on their being promoted on a regular basis as AEs or ceasing to remain in service. [Para 41][748-C-E] Manas Kumar Sinha v. The State of West Bengal & Ors. Writ Petition 3720(W) of 2008; Union of India v. Atul Shukla & Ors. (2014) 10 SCC 432 : [2014] 14 SCR 1151; Co.AS Iyer & Ors. v. Bala Subramanyan & Ors. (1980) 1 SCC 634 : [1980] 1 SCR 1036; Punjab State Electricity Board & Anr. v. Ravinder Kumar Sharma & Ors. (1986) 4 SCC 617 : [1987] 1 SCR 72; Roop Chand Adlakha v. Delhi Development Authority and others 1989 Supp (1) SCC 116 : [1988] (3) Suppl. SCR 253; State of Uttarakhand v. SK Singh (2019) 10 SCC 49 : [2019] (10) JT 264 – referred to.