Abdul Basheer v. State of Kerala — 1981 DIGILAW 80 (KER)

JUDGMENT Subramonian Poti, C.J. 1. All the five writ appeals are against the same Judgment that in O.P. 3760 of 1978. W.A. 243 of 1980 is the main appeal and that is by the State of Kerala and the Deputy Commissioner of Excise, who were respondents 1 and 2 in the Original petition. The other appeals are by persons who were not parties to the Original Petition. They have filed the appeals with leave of court as persons aggrieved by the judgment of the learned single Judge. The two Original Petitions O.P. Nos. 2119 of 1980 and 2117 of 1980 were referred to the Division Bench to be heard along with the writ appeals since the question raised in these petitions are more or less identical with the questions raised in the appeals. They have been heard together. 2. The controversy in these cases concerned the application of the ratio of 1:3 between graduates and non graduates for the purpose of promotion from the post of Excise Preventive Officers to that of 2nd Grade Excise Inspectors in the Kerala Excise and Prohibition Subordinate Service. Special Rules for the Kerala Excise and Prohibition Subordinate Service framed under S.2 of the Kerala Public Service Act, 1968 were published in the Kerala Gazette dated 24th September 1974. R.2 of the said Rules was amended by G.O. (P) No. 79/78/PD., dated 23rd June 1978 and it is the constitutionality of that amendment that is under challenge in the two Original Petitions before us as well as the Original Petition the Judgment in which is the subject of appeal in the writ appeals. It was by that amendment that the ratio of 1:3 between graduates and non graduates was introduced into the Special Rules to apply in the matter of promotion from the category of Excise Preventive Officers to that of 2nd Grade Excise Inspectors. The amendment is deemed to have come into force retrospectively from 9th September 1974, the date of the Special Rules. The basis of the challenge is that graduates and non graduates having been integrated into one category of Excise Preventive Officers there was no justification to differentiate as between them by prescribing a ratio for promotion to the Higher category of Excise Inspector. It would be different if non graduate Excise preventive Officers were found ineligible for promotion to the post of 2nd Grade Excise Inspectors. It would be different if non graduate Excise preventive Officers were found ineligible for promotion to the post of 2nd Grade Excise Inspectors. That was not the case. They were entitled to such promotion under the Rules. If so, according to the petitioners in the Original Petitions, there was no scope for prescribing a ratio which would affect the normal chances of promotion based upon rule of seniority envisaged in R.28 of the Kerala State and Subordinate Service Rules. 3. We will now refer to the facts of O. P. 3760 of 1978 the judgment in which is the subject of five writ appeals before us. The petitioner therein was, at the time of filing of the Original Petition, a Preventive Officer. He had been selected by the Public Service Commission as Excise Guard and advised for appointment as Excise Guard. Accordingly he joined duty in that post on 2nd April 1960. Later he was promoted as Excise Preventive Officer on 12th January 1966. In the list of Preventive Officers in the Excise Department the petitioner was ranked No. 131 while the 3rd respondent was ranked as 390. This was as on 1st August 1970. His complaint in the Original Petition was that based on amendment to R.2 of the Special Rules introducing ratio between graduates and non graduates his chance of promotion has been affected and the 3rd respondent has been promoted earlier, though junior, only because he is a graduate. If graduates and non graduates are both regarded as eligible for promotion as 2nd Grade Excise Inspectors consistently with the claim for equal opportunity no differentiation can be made between them by laying down a rule of quota for promotion for each and giving preferential treatment to graduates over non graduates in the matter of fixation of such quota. That would be discriminatory and violative of Art.16 of the Constitution. The petitioners in O. P. 2119 of 1980 and 2177 of 1980 also urge similar pleas. They are also non graduate Excise Preventive Officers and their complaint is that their chances of promotion have been affected by reason of amendment to R.2. The only difference in the case of the petitions of those two petitioners is that they have impleaded respondents 4 and 5 therein, who are Excise Inspectors, as representatives of their class seeking permission that they be treated as such representatives. The only difference in the case of the petitions of those two petitioners is that they have impleaded respondents 4 and 5 therein, who are Excise Inspectors, as representatives of their class seeking permission that they be treated as such representatives. Perhaps those petitions have been filed because of the contention raised in O.P. 3760 of 1978 that any decision adverse to the graduates would affect innumerable persons who are not on the party array and therefore the court ought not to grant relief in O.P. 4. The learned single Judge who heard O.P. 3760 of 1978 held that the amendment to R.2 introduced in 1978 has to be struck down as being violative of Art.14 and 16 of the Constitution. He directed the respondents in that case to cause the Departmental Promotion Committee to be convened within two months to prepare select list so that promotions on regular basis could be effected. This was because of the complaint that, in the department, all along there have been no regular promotion to the post of 2nd Grade Excise Inspectors because of the controversy between graduates and non graduates. 4. In these cases there are two contentions raised by the counsel for the appellants. The preference shown to graduates by prescribing, under the amendment to R.2 in 1978, the ratio of 1:3 is sought to be supported on the ground that recognition of graduation is recognition of merit and to have people with more merit in the post of Excise Inspectors would be conducive to better administrative efficiency. The other ground on which the impugned Rule is sought to be sustained is that the amendment has a historical background which justifies the preferential treatment. The graduates and non graduates all along have been treated differently in the matter of promotion to the post of Excise Inspector. A classification envisaged by reason of the introduction of the ratio in the Special Rule cannot be said to be unreasonable. These are the main questions with which we are concerned in these cases. 5. The first of the points attempted to be made out by learned Advocate General appearing for the State in W.A. 243 of 1980 and other learned counsel supporting the same view can easily be answered. These are the main questions with which we are concerned in these cases. 5. The first of the points attempted to be made out by learned Advocate General appearing for the State in W.A. 243 of 1980 and other learned counsel supporting the same view can easily be answered. It would not have been open to this court to consider the validity of a case that in the interest of administrative efficiency graduates alone could be found to be eligible for appointment as Excise Inspector. Naturally it would be the Government which would, in the usual course, be able to be the Judge in such a matter. What should be the qualifications and experience of a person for eligibility to a post is a matter which must primarily be in the realms of determination by the Government and unless it appears to be so patently unreasonable there would be no scope for the court to interfere with the decision of the Government. But when the Government itself recognises and has recognised all through the years non graduates as competent to hold the post of Excise Inspectors it would be futile to contend that in the interest of administrative efficiency graduates should be given preference. It must be remembered that Excise Inspectors are Executive Officers who had fieldwork in their own areas. These Inspectors would be posted at various places throughout the State and one sees no logic in the case that some of them should be administratively more efficient. It is also nobody's case that graduate Excise Inspectors are assigned to special areas requiring more administrative efficiency. Once they are promoted as Excise Inspectors there is no distinction between graduate and non graduate Inspectors just as when working as Excise Preventive Officers there was no distinction between them. This distinction ceases. Therefore we are unable to uphold the contention of the State that the ratio 1:3 between graduates and non graduates is supported on the ground of administrative efficiency. 6. Now we will come to the more important contention of the learned Advocate General urged before us with considerable force. The learned Advocate General draws our attention to the background of the rule. According to him there was a rule in force in a part of the Kerala State, the erstwhile Travancore area, from the year 1935 giving preference to graduates in the matter of promotion. The learned Advocate General draws our attention to the background of the rule. According to him there was a rule in force in a part of the Kerala State, the erstwhile Travancore area, from the year 1935 giving preference to graduates in the matter of promotion. After the reorganisation of the States and the formation of Kerala State on 1st November 1956 a rule was introduced in the Excise Department of the State prescribing a ratio in the matter of promotion in the post of Excise Inspectors. A copy of the relevant Government order is produced as Ext. R1 in O.P. 2177 of 1980. That is the proceedings, dated 23rd August 1957, Order GI-787/57/RD. That is said to be in supersession of all previous orders on the subject and intended to regulate the appointment to posts of Guards, Preventive Officers and II Grade Inspectors in the Excise Department. Clause (d) concerned Second Grade Excise Inspectors and that read: "(d) Second Grade Excise Inspectors. - A margin of twenty five per cent of the vacancies in the cadre of Second Grade Excise Inspectors will be left for being filled up by direct recruitment by the Public Service Commission of graduates possessing 5' 5" height and 32" chest girth. The remaining seventy five per cent will be filled up by promoting L. D. Clerks possessing the physical fitness mentioned above and preventive Officers on a 50: 50 basis observing the ratio of 3:1 between graduates and non graduates in either case". It may also be necessary to refer to clause (c) since that would indicate that clause (d) would apply only to the personnel of Travancore - Cochin area, the officers allotted from Madras being governed by the Madras Rules application to them, pending the issue of common rules applicable to both. '' (c) The orders contained in (a) and (c) above will be applicable to the whole State of Kerala the orders contained in (b) and (d) above will apply only to the personnel of Travancore - Cochin area, the officers allotted from Madras being governed by the Madras Rules applicable to them, pending the issue of common rules applicable to both. The vacancies that arise in the T.C. area are to be filled up by T. C. personnel and vacancies in Malabar by the Malabar personnel, for direct recruitment to 25 per cent of the vacancies in the cadre of II Grade Inspectors, selection will however be made from the whole state". By reason of this O.25 per cent of the posts of Second Grade Excise Inspectors was to be filled up by direct recruitment, 37 1/2 per cent by promoting Lower Division Clerks possessing physical fitness and 37 1/2 per cent by promoting Preventive Officers. We are concerned with only the last of these. This was to be in the ratio of 3:1 between graduates and non graduates. Evidently this was not a rule applicable to persons such as the petitioner in O.P. 3760 of 1978 since he was appointed in the Kerala State after 1st November 1956. This rule applied only to Travancore - Cochin personnel appointed prior to 1st November 1956. 7. In Government Order S(C) 4-14527/56/PD., dated 19th November 1957 Government of Kerala, considering the question of graduate, non graduate ratio, to be made applicable in the State of Kerala, took note of the situation in the different parts of the State and prescribed the ratio of 1:1 between graduates and non graduates as an interim arrangement it was indicated therein that the ultimate aim was to do away with the distinction between graduates and non graduates in offices other than Secretariat, Public Service Commission and High Court. Though for sometime this was assumed to be applicable in the matter of promotion to the post of Excise Inspectors also, Government, by G.O. MS. 389/RD., dated 8th July 1966, clarified that the order dated 19th November 1957 was intended to apply to ministerial posts and that order will not be application to executive posts like that or Preventive Officers. In the case of those to whom Ext. R1 would be applicable that order would therefore continue to apply. The question of applicability of graduate, non graduate ratio envisaged in Ext. R1 referred to above arose for consideration before this court in O.P. Nos. 2328 and 2372 of 1972. This court directed the Government to reexamine the matter and as a result of such examination finalise the provisional promotion of Excise Inspectors. There were no Special Rules for the Excise Subordinate Service at that time. R1 referred to above arose for consideration before this court in O.P. Nos. 2328 and 2372 of 1972. This court directed the Government to reexamine the matter and as a result of such examination finalise the provisional promotion of Excise Inspectors. There were no Special Rules for the Excise Subordinate Service at that time. It was thereafter that Special Rules dated 9th September 1974 published in the Kerala Gazette dated 24th September 1974 were framed by the Government. These Rules provide for appointment to the post of Excise Inspectors by direct recruitment, promotion from the category of Excise Preventive Officers and recruitment by transfer from among Upper Division Clerks employed in the Excise Department. But this rule did not provide for any ratio between graduates and non graduates in the matter of promotion. The Government thereafter passed G.O. MS. 121/74/PD., dated 4th October 1974 noticing that the High Court had held that the provisions contained in the Government Order dated 23rd August 1957 (Ext. R1) cannot be applied to those appointed after the formation of the Kerala State. The Order of 4th October 1974 was intended to make Ext. R1 applicable retrospectively to all those appointed on or after 1st November 1956 till the date of issue of the Special Rules for the Excise Subordinate Service. It adopted the ratio of 3:1 between graduates and non graduates for promotion to the post of Second Grade Excise Inspectors as a rule for the Kerala State and specifically provided that this would apply to the case of persons who had entered the Excise Department on or after 1st November 1956 and would operate till the coming into force of Kerala Excise and Prohibition Subordinate Service Rules. The object of this Government Order is evidently to fill what otherwise would have been a vaccum in the matter of ratio for the promotion of Excise Inspectors from among the persons appointed in Kerala after 1st November 1956. This attempt of the Government to apply the ratio of 3:1 by an executive order passed in 1974 retrospectively from 1st November 1956 did not prove to be successful. A Division Bench of this Court in the judgment in W.A. No. 151 of 1977 held that an executive order cannot be given retrospective effect and therefore it would not operate for any period prior to the date it was passed by the Government. A Division Bench of this Court in the judgment in W.A. No. 151 of 1977 held that an executive order cannot be given retrospective effect and therefore it would not operate for any period prior to the date it was passed by the Government. Before this decision was rendered by this Court Special R.2 was amended providing for a ratio between graduates and non graduates from 9th September 1974, the date of commencement of the Special Rules. But a significant departure was made in the concept of the ratio, for, the Special Rule envisaged only a ratio 1:3 from 9th September 1974 while the earlier attempt was to apply a ratio of 3:1 between graduates and non graduates till 9th September 1974. The amendment to the Rule was sought to be made retrospective only from 9th September 1974 evidently because the earlier period was covered by the executive order dated 4th October 1974 which, as we have already indicated, was held to be not retrospectively operative in the judgment of this Court only later. The consequences of all this was therefore, that, upto 9th September 1974 there was no valid rule in force with regard to that ratio and after 9th September 1974 there was the rule that was introduced by the amendment to the Special Rules in 1978. After the judgment in W.A. 151 of 1977 another order has been passed by the Government and that is produced as Ext. R3 in O.P. 2177 of 1980. That is the order dated 6th March 1980 and that is purported to be in exercise of the powers conferred by sub-s.(1) of S.2 of the Kerala Public Services Act, 1968, that reads: "Appointment of Excise Inspectors during the period commencing on the 1st day of November 1956 and ending with 8th day of September 1974, from among Clerks and Preventive Officers who enter service on or after the 1st day of November 1956, shall be made in the ratio of 1:1 between Clerks and Preventive Officers, observing the ratio of 3:1 between graduates and non graduates. This rule shall be deemed to have come into force on the 1st day of November 1956". This is the historical background of the rule of ratio between graduate and non graduates in the State. 8. This rule shall be deemed to have come into force on the 1st day of November 1956". This is the historical background of the rule of ratio between graduate and non graduates in the State. 8. Very elaborate reference has been made to the historical background of the rule prescribing a ratio for promotion between graduates and non graduates in an attempt to point out that even if the rule of such ratio may be otherwise objectionable if, in the area in which the rule is enforced, the rule had been in force for a long number of years that may be found as a rational basis for classification and the rule should not be struck down as offending Art.14 and 16 of the Constitution. It may be open to the Government to prescribe, in its wisdom, that graduation is a necessary qualification for the post of Excise Inspector, Grade II. That would effectively keep all non graduates out. What is to be the qualification for holding a particular post is a matter for the rule making authority to consider and normally its decision will not be substituted by the decision of the Court unless it be that it is found to be perverse and unrelated to the object of prescribing a qualification. But if it is taken that both graduates and non graduates functioning as Preventive Officers could be promoted to the post of Excise Inspectors and they could both function as Excise Inspectors, to ignore seniority as between the Preventive Officers and to prescribe any rule by which a senior is superseded by a junior would not be easy to explain logically. It is that which is sought to be explained by what the learned Advocate General described as the background of the differentiation between graduate and non graduates. The Supreme Court in State of J. K. v. T. N. Khosa ( AIR 1974 SC 1 ), upheld the rule providing that graduates shall be eligible for promotion to the cadre of Executive Engineers to the exclusion of diploma holders though the diploma holders and the graduates were integrated into a common class of Assistant Engineers, the class immediately next below to that of Executive Engineers. A classification founded on variant educational qualifications for the purpose of promotion could not be said to be unjust on the face of it. A classification founded on variant educational qualifications for the purpose of promotion could not be said to be unjust on the face of it. The court said thus: "Judicial scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extent to embarking upon a nice or mathematical evaluation of the basis of classification, for, were such an inquiry permissible it would be open to the courts to substitute their own judgment for that of the legislature or the rule making authority on the need to classify or the desirability of achieving a particular object". In the case in Mohd. Shujat Ali v. Union of India ( AIR 1974 SC 1 631), the complaint of the petitioners was that the Andhra Pradesh Rules made unjust discrimination between graduates and non graduates in the matter of promotion of Supervisors as Assistant Engineers. The graduate Supervisors were given preferential treatment over non graduate Supervisors in that two out of every three vacancies initially, and after the amendment, three out of every four vacancies in the posts of Assistant Engineers were reserved for promotion of graduate Supervisors and only the remaining one vacancy was left to be filled by promotion of non graduate Supervisors. That this was not a reasonable classification and therefore was arbitrary was the plea urged by the petitioners in that case. Of course, judged by the rule formulated in State of J. and K. v. T. N. Khosa ( AIR 1974 SC 1 ) had it been said that non graduate Supervisors were not qualified to be Assistant Engineers it would have been a different matter, for, the question whether despite such a rule the non graduate Supervisors would succeed in challenging that they should also be promoted as Assistant Engineers would not be a matter which they could normally challenge successfully before a court. But where their eligibility for promotion as Assistant Engineers was recognised in the rule, could it be said that in the matter of promotion there should be the consequence that a senior non graduate Supervisor, however senior he may be, is to be passed over by a graduate Supervisor for promotion to the post of Assistant Engineer because of the application of the ratio between two categories? After referring to the decisions of the Supreme Court which recognised qualification as a valid basis for classification the Supreme Court held thus: "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". This rule has been followed by this court in the Full Bench decision in Velappan v. Chandran ( 1975 KLT 801 (F.B.)) Art.16 of the Constitution which gives effect to the doctrine of equality in the field of public employment must necessarily apply to the circumstances where without justification and without any relevant purpose to be achieved, a classification is made. Such would be a classification which, while recognising the eligibility of non graduates for promotion to a higher post along with graduates, prescribes that as between them the graduates will have the advantage of reservation of a quota for promotion. The consequence of such a rule would be to infringe the right of promotion based on seniority. The resultant supersession would not obviously be by way of recognition of superior merit but would be the result of application of a rule which should be found to be arbitrary. The learned Single Judge in his judgment which is subject of W. A. No. 243 of 1980 has applied the ratio of the decision in Mohd. Shujat Ali v. Union of India ( AIR 1974 SC 1 631), as followed by this court in its subsequent decisions. 9. But it is said that despite the enunciation of the rule which frowns upon reservation of higher quota of vacancies for graduates in the decision adverted to the reservation was upheld in that case for other reasons and the approach adopted there is sought to be applied to the case here by learned Advocate General. Bhagwati, J., said in that case thus: "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. 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 stage 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 Pradesh 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 cannot, therefore, prevail and must be rejected." This, it is said, is a recognition of a rule of exception which rule must apply to the facts of the cases before us. We have necessarily to notice that there was specific reason for the Supreme Court upholding the rule of different quotas for graduates and non graduates in the case before it. It was found by the court in that case that (1) graduates and non graduate Supervisors had always been treated as separate classes (2) their scales of pay were different (3) they were being treated differently for promotion (4) they had different nomenclature and (5) they were never fused in one class. It was found by the court in that case that (1) graduates and non graduate Supervisors had always been treated as separate classes (2) their scales of pay were different (3) they were being treated differently for promotion (4) they had different nomenclature and (5) they were never fused in one class. It is not merely the prior existence of a rule of ratio that justified the reservations to graduates in that case. The post of Assistant Engineers was itself held differently by the two classes. All along they had in fact been treated as two different classes not only with different names but even with different pay scales. It is evident that there was no integration or fusion between the two classes and all along the graduates and the non graduates held offices as if they were classified into two different categories. It was not as if for the purpose of promotion to the post of Assistant Engineer there was a classification between them for the first time. What had been classified earlier continued to be classified even in the matter of promotion to the post of Assistant Engineers. Whether the circumstances that obtained here were similar is the question that should necessarily invite our attention. 10. The State of Kerala was formed on 1st November 1956. It comprised, the Part B State of Travancore - Cochin and the area of the Malabar District of the State of Madras. The Travancore - Cochin State was formed in 1949 by integration of the native States of Travancore and Cochin. In the erstwhile State of Travancore there was in force a rule giving preference to graduates in the matter of promotion. That rule was adopted in Travancore - Cochin area. In Malabar area of the Madras State there was no such rule of preference to graduates. After the Kerala State was formed the order of 23rd August 1957 to which we have already made reference was passed prescribing a ratio in the matter of promotion to the post of Excise Inspectors, II Grade. But only personnel of the Travancore - Cochin area would be affected by the rule, the personnel allotted from Madras being governed by Madras rule. Evidently therefore it was only an order keeping alive in substance to some extent some earlier rule applicable to those in the Travancore - Cochin service. But only personnel of the Travancore - Cochin area would be affected by the rule, the personnel allotted from Madras being governed by Madras rule. Evidently therefore it was only an order keeping alive in substance to some extent some earlier rule applicable to those in the Travancore - Cochin service. It did not obviously apply to those who were allotted from Madras. Those appointed in the Kerala State were also not governed by that rule. The ratio was 3:1 between graduates and non graduates. The said order would not be applicable to the officers who are parties to these petitions since all of them, it is said, were appointed after the Kerala State came into force. Though an attempt was made to apply the provisions of the Government Order dated 23rd August 1957 to those appointed in the Kerala State after 1st November 1956 that did not succeed in view of the pronouncement of this Court as indicated in G.O. (MS) 121/74, dated 4th October 1974. It was therefore that the Government passed the said order making provision for application of the ratio for the period from 1st November 1956 to the date the special rules came into force. It was not as if even the special rules provided for any such ratio when such rules came into force in 1974. The attempt to introduce the ratio by G.O. (MS) 121/74, also failed because of the judgment of this Court in Writ Appeal No. 151 of 1977. Special R.2 was amended in 1978 with retrospective effect from 9th April 1974 and a ratio of 1:3 between graduates and non graduates was applied. This ratio, it may be said, was different from the ratio applicable in the case of Travancore - Cochin personnel in service prior to 1st November 1956. That ratio was 3:1. Whatever that be it was only by amendment in 1978 that to those appointed in Kerala the ratio 1:3 was made applicable by a statutory rule for the first time. It is that rule that is under attack. 11. It could be seen from the above narration concerning orders of Government relating to the subject that there has been an attempt to apply the ratio between graduates and non graduates in one form or other since 1957 though it did not take within its sweep the entire body of Preventive Officers in the Excise Department. 11. It could be seen from the above narration concerning orders of Government relating to the subject that there has been an attempt to apply the ratio between graduates and non graduates in one form or other since 1957 though it did not take within its sweep the entire body of Preventive Officers in the Excise Department. It was not as if in the post of Preventive Officers there were two classes of persons, graduates and non graduates considered as two separate classes either in the matter of pay or in the matter of service conditions. Once they were appointed or promoted as Preventive Officers, graduates and non graduates were members in one and the same class and but for the occasion of applying the ratio for promotion the difference between them arising from different qualifications would never have even been noticed. They were not treated as two different classes having separate identities. Therefore despite what has been urged by learned Advocate General it is not possible to find that there were two classes of Preventive Officers, graduates and non graduates, and therefore provision of different quotas to them in the matter of promotion would not be objectionable as arbitrary. The exceptional circumstance noticed in Mohd. Shujat Ali's case ( AIR 1974 SC 1 631) which justified the conclusion reached in that case cannot be said to exist in the case before us. 12. That different tests should not be prescribed for determining the promotional opportunities of persons in one and the same cadre where the cadre is formed by recruiting persons drawn from different departments of the Government is now well settled. In S. L. Sachdev v. Union of India ( 1980 (4) SCC 562 ), a Government directive that the total number of selection grade posts available for the Upper Division Clerks who came from the Audit Offices should be 10 per cent of the total number of Audit Office Upper Division Clerks working in any particular circle of the Organisation was challenged as arbitrary. It was contended by the learned Advocate General in that case that persons drawn from different sources were not integrated into a common service in that case and therefore different rules of promotion can be applied to the two classes. The learned Chief Justice Chandrachud, dealing with this contention said thus: "We are unable to accept this contention. It was contended by the learned Advocate General in that case that persons drawn from different sources were not integrated into a common service in that case and therefore different rules of promotion can be applied to the two classes. The learned Chief Justice Chandrachud, dealing with this contention said thus: "We are unable to accept this contention. The duties, functions and responsibilities of all the Upper Division Clerks in the new Organisation are identical. They are all in the same cadre and they draw the same pay in the same grade. There is no reason then why different tests should be prescribed for determining their respective promotional opportunities, and that too solely in reference to the source from which they are drawn. The test of educational qualifications can conceivably be an intelligible differentia bearing nexus with the object of ensuring greater efficiency in public services. But once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances. The impugned directives are therefore unconstitutional." The rule applied in the case before the Supreme Court applies with equal force to the cases before us. 13. We may refer in this context to a decision of the High Court of Punjab and Hariyana in Sukhdev Raj v. K.S.E. Board, Patiala (1980 Lab. IC 943). The Punjab Electricity Board fixed a quota of 67 per cent to diploma holder line superintendents for promotion while the non diploma holder line superintendents were left with 33 per cent posts for their promotion. They had been integrated to one cadre and the same scale of pay and grade applied to them. The court expressed the view that if taking into consideration all factors the Board thought as a matter of policy that non diploma holder Line Superintendents were fit enough to perform the duties of Junior Engineers after promotion, there was no warrant or justification to debar them from competing with the diploma holders by showing a preference to the diploma holders by a reservation of a separate quota for them. The court followed the dictum in Mohd. Shujat Ali's case ( AIR 1974 SC 1 631). The court followed the dictum in Mohd. Shujat Ali's case ( AIR 1974 SC 1 631). We need not go further into this question, for, the controversy before us is really not whether provision of a reservation quota to a group of people within a cadre will not be discriminatory in all circumstances but whether it is not discriminatory in these cases because of what is referred to as the history of background of such reservation. Such history, as we have said earlier, would be relevant only to consider the plea, if any, that there is justification to treat the existence of two classes independent of each other which required to be treated differently and reservation has been only in recognition of such existing distinction justifiable on the facts. That is not the case here since we find that at no time such distinction was maintained between graduates and non graduates in the post of Excise Preventive Officers except to the limited extent in the matter of promotion to which we have adverted to earlier in this judgment. 14. The result of our discussion is that we should find that the amendment to the Special Rules for the Kerala Excise and Prohibition Subordinate Service of the date 23rd June 1978 cannot be sustained as it is violative of Art.16 of the Constitution of India. But it is said that in the Writ Appeals it may not be proper for us to grant any relief. That is because in O.P. No. 3760 of 1978 the petitioner had failed to implead all those who would be affected by the decision in the case. It is said that all along there have been provisional promotions applying the executive rules and later the statutory special rules and the benefit of these promotions are being enjoyed by graduate Second Grade Excise Inspectors. There has not been an attempt to make them parties by resort to a representative action and therefore it is said that no relief should be granted in the case, for, the result of the petition would be to cause injury to many who have had no occasion to contest the case. The appeal filed by the State of Kerala is Writ Appeal 243 of 1980. The other appeals are by Second Grade Excise Inspectors who are graduates and who with the leave of the court have filed such appeals. The appeal filed by the State of Kerala is Writ Appeal 243 of 1980. The other appeals are by Second Grade Excise Inspectors who are graduates and who with the leave of the court have filed such appeals. Even granting this plea as valid that may not be sufficient to dispose of this case, for, O.P. Nos. 2119 and 2177 of 1980 have been filed on the same averments as O.P. 3760 of 1978 and graduate Preventive Officers who had been promoted as Second Grade Excise Inspectors on the strength of the graduate, non graduate ratio have been made parties. Leave also has been obtained from this court to enable them to be treated as representatives of that class. Since the said petitions are heard along with the Writ Appeals the amendment to special rules adverted to herein calls for examination, at any rate. Therefore no purpose is served in denying reliefs in the case from which Writ Appeal 243 of 1980 and other appeals arise if the same relief is to be granted in the two Original Petitions. Consequently all the Writ Appeals are dismissed and O.P. 2119 and 2177 of 1980 are allowed holding that the impugned amendment to the Special Rules for the Kerala Excise and Prohibition Subordinate Service as also the subsequent order, dated 6th March 1980, Ext. R3 in O.P. 2119 of 1980, are quashed. It goes without saying that if the amendment to the Special Rule is to be quashed for the same reason Ext. R3 in O.P. 2119 of 1980 has also to be found to be bad. Final selection based upon determination of seniority in accordance with what is said here must be expedited so as to give a quietus to matters which were being agitated in the department for a long time now. For this purpose it may be necessary to convene the Departmental Promotion Committee and that too shall be done expeditiously. The consequence resulting from the decision shall be worked out by the Government expeditiously. Parties are directed to suffer costs in all the cases. 15. For this purpose it may be necessary to convene the Departmental Promotion Committee and that too shall be done expeditiously. The consequence resulting from the decision shall be worked out by the Government expeditiously. Parties are directed to suffer costs in all the cases. 15. Counsel for appellants in Writ Appeals 166, 177, 225, 243 and 255 of 1980, 1st respondent in O.P. No. 2119 of 1980 and respondents 1, 4 and 6 in O.P. No. 2177 of 1980 make oral applications under Art.134A of the Constitution of India for certificate for leave to appeal to the Supreme Court of India. We see no substantial question of law of general importance which needs to be decided by the Supreme Court of India arising in these cases. Leave declined.