Judgment :- 1. This appeal is directed against the judgment of a single judge in O. P. No. 4882 of 1970. There were 4 petitioners in that Original Petition and they are respondents 1 to 4 in this appeal and respondents 5 to 7 are the 3 respondents in the Original Petition. The appellant is a stranger to the proceedings in O. P. No. 4882 of 1970, the judgment from which is appealed against, but the appeal has been sought to be sustained on the ground that he is aggrieved by the decision and no point has been taken before us that the appeal is not maintainable. 2. Shortly stated, the question that arises for determination in this appeal is whether R.2 and 6 of the Kerala Forest Subordinate Service Rules, 1963 for short, the rules, in so far as they provide for promotion of Foresters, Category 3, in R.2 and R.6 prescribing other qualifications for Foresters are liable to be set aside in proceedings under Art.226 of the Constitution. The learned judge accepted the contentions of respondents 1 to 4, the petitioners on two grounds. It was held that the rules were violative of the proviso to subsection (7) of S.115 of the States Reorganisation Act, 1956 in that before its promulgation the prior approval of the Central Government had not been obtained. It was also found that the rules were violative of R.35(b) of the Kerala State and Subordinate Services R.1958. So the original petitions were allowed. On the other point urged before the learned judge that the rules were violative of Art 16 of the Constitution there is no final pronouncement though the learned judge was inclined to accept prima facie the contention that the rules were discriminatory. 3. The questions that we are called upon to decide are (a) whether the rules are violative of the proviso to sub-section (7) of S.115 of the States Reorganisation Act, 1956 (b) whether the rules are violative of S.35(b) of the Kerala State Subordinate Services Rules, 1958 and (c) whether the rules are violative of Art.16 of the Constitution of India. 4. 4. Before we proceed to deal with these questions we may extract that part of R.2 of the rules which deals with the method of appointment of Foresters' "(1) Promotion of Forest Guards; or (2) Recruitment by transfer from members of the Ministerial Service in the Forest Department; or (3) Direct recruitment: Provided that (1) 25 per cent of the vacancies arising in the category of Foresters shall be filled by direct recruitment; (2) 40 per cent by promotion of Guards possessing minimum general educational qualification of the S. S. L. C. standard or equivalent. Note: Guards with Foresters' training will be given preference over guards trained in Guards Training Schools Guards who have secured the first rank in the Guards training of a recognized Forest School will be deemed to have Forester's training. Promotion from such guards will be made according to seniority among them. (3) 25 per cent by promotion of Forest Guards who do not possess the minimum general educational qualification of the S.S. L. C. Standard, but who have put in 10 years' service as guards and are literate and otherwise fit. Persons who have a pass certificate from one of the Forest Training Schools will be preferred in selecting persons for promotion against this quota. Persons securing first rank will be given the first preference. Provided that no such preference shall be given over a Forest Guard who has put in 20 years' service as Forest Guard and has completed 45 years of age. Note: - A senior Forest Guard who possesses the minimum general educational qualification of the S. S. L. C. standard, will not be superseded by a junior possessing the above qualification to maintain the 25 per cent quota. Such senior persons will be promoted before a junior Forest Guard without the minimum general educational qualification of the S. S. L. C. standard is promoted. (4) 10 per cent by appointment by transfer of members of the Ministerial service in the Forest Department." 5. R.6 dealing with other qualifications prescribed for Foresters reads as follows: - "6. Other Qualifications. -No person shall be eligible for appointment to the Class, Category or Grade specified in column (1) and by the method specified in column (2) of the Table below unless he possesses the qualifications specified in the corresponding entry in column (3) thereof: - 6. R.6 dealing with other qualifications prescribed for Foresters reads as follows: - "6. Other Qualifications. -No person shall be eligible for appointment to the Class, Category or Grade specified in column (1) and by the method specified in column (2) of the Table below unless he possesses the qualifications specified in the corresponding entry in column (3) thereof: - 6. Before the rules were framed it is admitted that in the Malabar area to which the petitioners belong for promotion to the grade of Foresters the S.S.L.C qualification or a particular number of years of service in the case of those who did not possess the S.S.L C. qualification, was not insisted upon. The rules as we have seen provide for S.S.L.C. qualification or 10 years of service. There has therefore been an alteration in the principles to be applied for promotion of those in the Malabar area of the State by the advent of the rules and on the assumption that such alterations have prejudicially affected the conditions of service - we do not say that they have affected the conditions of service, we assume so - the question whether the proviso to S.115(7) of the States Reorganisation Act. 1956 had been complied with arises. 7. The appellant before us entered service as a Forest Guard and was promoted as a Forester under R.2 of the rules which we have read, on 1-6-1966. He obtained promotion according to the provisions in the Madras Forest Subordinate Services Rules where the criteria was solely the length of service and fitness. His probation had been declared with effect from 6-11-1969. Following the decision under appeal by order dated 29-5-1973 the appellant had been directed to be reverted and he has filed O.P. No. 1899 of 1973 questioning that order and that Original Petition is pending before this Court. 8. The Supreme Court in its recent pronouncements on the subject upheld the principle laid down in N. Raghavendra Rao v. Deputy Commissioner, South Kanara, Mangalore and Others AIR. 1965 SC. 136. The scope of the memorandum dated 11th May, 1957 addressed by the Government of India to all the State Governments providing inter alia that in respect of departmental promotion the question whether any protection should be given be left to the State Governments was considered in Raghavendra Rao's case and the Supreme Court observed: "In the memorandum, mentioned above, the Central. Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. In our opinion, this amounted to previous approval within the proviso to S.115 (7). It may be mentioned that by the memorandum the State Governments were required to send copies of all new rules to the Central Government for its information. Therefore, in our opinion there is no force in the first contention of the learned counsel for the petitioner, and we hold that the rules were validly made". This view of the Supreme Court has now been reaffirmed by a Constitution Bench of the Supreme Court in Mohammad Shujat Ali and others v. Union of India AIR. 1974 SC. 1631 and has been reiterated in the decision in Bishan Chand and others v. Sarbjit Singh and others AIR. 1975 SC. 73. In view of the above pronouncement of the Supreme Court the first point urged by counsel for the appellant has to be accepted and it has to be held that there has been no violation of S.115(7) of the States Reorganisation Act. 9. We do not think that we are called upon to pronounce on the question whether R.35(b) of the Kerala State and Subordinate Services Rules has been violated by the promulgation of the rules. R.35(a) and (b) of the Kerala State and Subordinate Services Rules may be read: "35. Savings. - (a) (i) Unless a contrary intention is expressly indicated therein, nothing contained in these rules shall adversely affect any person who was member of any service on the date of the coming into force of the rules. (ii) Unless a contrary intention is expressly indicated therein nothing contained in any Special Rules governing a service, shall adversely affect any person who was a member of such service on the date of the coming into force thereof. (b) Subject to the provisions of sub-rules. (c) and (d) where these rules or the Special Rules would adversely affect in respect of any matter a person who was a member of any service before the date of coming into force thereof, he shall, in respect of such matter, be governed, by the rules and orders if any, which were applicable to him immediately prior to such date". 10. 10. Detailed arguments have been advanced before us regarding the ambit not only of sub-rule (b) but of sub-rule (a) of R.35 of the Kerala State and Subordinate Services Rules. The learned judge has categorically held that R.35(b) has been violated. We doubt the correctness of this view. However we do not wish to express any opinion on this matter in this case as it can be disposed of on the basis of our conclusions on the first and third points which we have formulated. We leave the question of violation of R.35(b) open for consideration in an appropriate case. 11. We shall now consider whether there has been violation of Art.16 of the Constitution. Forest Guards belong to a single cadre and there is only one grade applicable to Forest Guards. In that category there are persons who possess the S.S.L.C. qualification and those who do not possess the S.S.L.C. qualification. According to the rules, the relevant parts of which we have read both groups in the category have been found fit to be promoted to the cadre of Foresters. Nevertheless only 25 per cent of the promotion posts have been reserved for those who do not possess the minimum general educational qualification of S.S.L.C. There is a further restriction imposed that those who belong to that group must have put in 10 years' service as Guards. The question to be considered is whether such curtailment of the chances of promotion by fixing a limited quota to those who belong to the eligible category is justified in law. The Supreme Court had occasion to consider the question whether if will be proper to prescribe qualifications for a promotion post which might result in some of those belonging to the category from which promotions are to be effected being denied promotion. It has been ruled that there is no impediment in so prescribing qualifications and that by prescribing such qualification there will be no violation of Art.16 of the Constitution. But it has also been laid down by the Supreme Court that once it is accepted that persons who do not possess certain qualifications, which others in the same category possess, are also entitled to be promoted then any rule which discriminated against those who do not possess such qualifications, say by limiting their promotion chances by providing a fixed limited quota is violative of Art.16. There is a full discussion of the matter in Para.28 of the judgment in the decision of the Supreme Court in Mohammed Shujat Ali and others v. Union of India and others AIR 1974 SC 1631. We shall extract the paragraph: "28. Now, there are three decisions of this Court where educational qualifications have been recognised as forming a valid basis for classification. In State of Mysore v. Narasinga Rao, (1968) 1 SCR 407 - (AIR 1968 SC 349 =1968 Lab IC 360) this Court held that higher educational qualifications such as success in S. S. L. C examination are relevant considerations for fixation of higher pay scale for tracers who have passed the S. S L. C. examination and the classification of two grades of tracers in Mysore State, one for matriculate tracers with higher pay scale and the other for non-matriculate tracers with lower pay scale, cannot be said to be violative of Art.14 or 16. So also in Union of India v. Dr. (Mrs.) S.B. Kohli, (1973) 3 SCC 592 = (AIR 1973 SC 811=1973 Lab IC 423) a Central Health Service Rule requiring that a Professor in Orthopaedics must have a Post-graduate degree in particular speciality was upheld on the ground that the classification made on the basis of such a requirement was not "without reference to the objectives sought to be achieved and there can be no question of discrimination", A very similar question arose in (1974) 1 SCC 19 = (AIR 1974 SC 1=1974 Lab IC 1 where a rule which provided 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 and diploma holders shall not be eligible for such promotion, was challenged as violative of the equal opportunity clause. This Court repelled the challenge holding that "though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for the purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications" and "the rule providing that graduates shall be eligible for such promotion to the exclusion of diploma holders" was hot obnoxious to the fundamental guarantee of equality and equal opportunity. But from these decisions it cannot be laid down as an invariable rule that whenever any classification is made on the basis of variant educational qualifications, such classification must be held to be valid, irrespective of the nature and purpose of the classification or the quality and extent of the differences in the educational qualifications. It must be remembered that "life has relations not capable always of division into inflexible compartments". The moulds expand and shrink. The test of reasonable classification has to be applied in each case on its peculiar facts and circumstances. It may be perfectly legitimate for the administration to say that having regard to the nature of the functions and duties attached to the post, for the purpose of achieving efficiency in public service, only degree holders in engineering shall be eligible for promotion and not diploma or certificate holders. That is what happened in (1974) 1 SCC 19 = (AIR 1974 SC 1=1974 lab IC 1) and a somewhat similar position also obtained in (1973) 3 SCC 592 = (AIR 1973 SC 81I = 1973 Lab IC 423). But where graduates and non-graduates are both regarded as fit and therefore, eligible for promotion, it is difficult to see how, consistently with the claim for equal opportunity, any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non-graduates in the matter of fixation of such quota. The result of fixation of quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engineer, which, according to the quota is reserved for graduate Supervisors, a non-graduate Supervisor cannot be promoted to that vacancy, even if he is senior to all other graduate Supervisors and! more suitable than they. His opportunity for promotion would be limited only to vacancies available for non-graduate Supervisors. That would clearly amount to denial of equal opportunity to him When there is a vacancy earmarked for graduate Supervisor a non graduate Supervisor would be entitled to ask: "I am senior to the graduate Supervisor who is intended to be promoted. I am more suitable than he is. It is no doubt true that I am a non-graduate, but my not being a graduate has not been branded as a disqualification. I am more suitable than he is. It is no doubt true that I am a non-graduate, but my not being a graduate has not been branded as a disqualification. I am regarded fit for promotion and, like the graduate Supervisor, I am equally eligible for being promoted. My technical equipment supplemented by experience is considered adequate for discharging the functions of Assistant Engineer. Then why am I being denied the opportunity for promotion and the graduate Supervisor is preferred?" There can be no satisfactory answer to this question. It must be remembered that many of these non-graduate Supervisors might not have been able to obtain degree in engineering because they came from poorer families and did not have the financial resources to pursue degree course in engineering and not because they lacked the necessary capacity and intelligence "Chill penury" might have "repressed their noble rage". It is of the essence of equal opportunity for such persons with humble and depressing backgrounds that they should have opportunity, through experience or self-study, to level up with their more fortunate colleagues, who by reason of favourable circumstances, could obtain the benefits of higher education, and if they prove themselves fit and more suitable than others, why should they be denied an opportunity to be promoted in a vacancy on the ground that that vacancy belongs to Supervisors possessing higher educational qualifications. As pointed out by Krishna Iyer, J, in (1974) 1 SCC 19 = (AIR. 1974 SC.1 =1974 Lab. IC. 1) "the soul of Art.16 is the promotion of the common man's capabilities, over-powering environmental adversities and opening up full opportunities to develop in official life without succumbling to the sophistic argument of the elite that talent is the privilege of the few and they must rule". To permit discrimination based on educational attainments not obligated by the nature of the duties of higher post is to stifle the social thrust of the equality clause. A rule of promotion which while conceding that non-graduate Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate Supervisors as against non-graduate supervisors would clearly be calculated to destroy the guarantee of equal opportunity. But even so, we do not think we can be persuaded to strike down the Andhra Pradesh Rules in so far as they make differentiation between graduate and non-graduate Supervisors. But even so, we do not think we can be persuaded to strike down the Andhra Pradesh Rules in so far as they make differentiation between graduate and non-graduate Supervisors. This differentiation is not something brought about for the first time by the Andhra Pradesh Rules. It has always been there in the Engineering Services of the Hyderabad and the Andhra States. The graduate supervisors have always been treated as a distinct and separate class from non-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under the Hyderabad Rules, the pay scale of graduate Supervisors was Rs. 176-300, while that of non-graduate Supervisors was Rs. 140-300 and similarly, under the Andhra Rules the pay scale of non-graduate supervisors was Rs. 100-250. but graduate Supervisors were started in this pay scale at the scale of Rs. 150/- so that their pay scale was Rs 150-250. Graduate Supervisors and non-graduate Supervisors were also treated differently for the purpose of promotion under both sets of Rules. In fact, under the Andhra Rules a different nomenclature of Junior Engineers was given to graduate Supervisors. The same differentiation into two classes also persisted in the reorganised State of Andhra Pradesh. The pay scale of junior Engineers was always different from that of non-graduate Supervisors and for the purpose of promotion, the two categories of Supervisors were kept distinct and apart under the Andhra Rules even after the appointed day, The common gradation list of Supervisors finally approved by the Government of India also consisted of two parts, one part relating to Junior Engineers and the other part relating to non-graduate Supervisors. The two categories of Supervisors were thus never fused into one class and no question of unconstitutional discrimination could arise by reason of differential treatment being given to them. Contention E cannot, therefore, prevail and must be rejected." 12. In view of this pronouncement of the Supreme Court we have to hold that the rules are violative of Art.16 of the Constitution. On this ground, the judgment under appeal has to be sustained. We do so and dismiss the Writ Appeal. 13. O. P. No. 1899 of 1973 will be disposed of on the merits of that case. We of course express no opinion on the points raised therein which are not pronounced upon in this judgment. 14. On this ground, the judgment under appeal has to be sustained. We do so and dismiss the Writ Appeal. 13. O. P. No. 1899 of 1973 will be disposed of on the merits of that case. We of course express no opinion on the points raised therein which are not pronounced upon in this judgment. 14. The parties will bear their respective costs.