judgement:
tition Nos.
5105 13 of 1983.
(Under article 32 of the Constitution of India) M.K. Ramamurthi, Mrs. Indra Sawhney, Mrs. C. Malhotra and M. A. Krishnamoorthy for the Petitioners.
Yogeshwar Prasad, Mrs. Rani Chabra, Gopal Subramaniam and Mrs. Sobha Dikshit for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
The petitioners in this group of petitions under article 32 of the Constitution were inducted as Khandsari Inspectors between March, 1960 and 1964.
Respondents 4 to 19 were also recruited as Khandsari Inspectors on different dates.
Respondents 1 and 2 are the Chief Secretary, Govt.
Of U. P. and the Secretary, Industries respectively of the U. P. Government and respondent No. 3 is the Sugar Commissioner of U. P.
The dispute amongst the petitioners and the respondents 4 to 19 is about inter se seniority between them in the cadre of Khandsari Inspectors.
It appears that in the year 1958 59, the State Government framed what is styled as Khandsari Licensing Scheme ' to regulate the supply of sugarcane to sugar factories by G.O. No. 4588 (1) XVIII A 680/59 dated November 21, 1959.
Posts of Khandsari Inspectors initially designated as Licensing Inspectors were created in the pay scales of Rs. 120 250.
Petitioners Nos. 1, 2 and 3 were appointed as Khandsari Inspectors between March and May, 1960.
Thereafter some of the respondents were recruited as 75 Khandsari Inspectors and some others who were recruited departmentally were approved by the Public Service Commission.
On March 22, 1971, the third respondent the Sugar Commission circulated a provisional seniority list of Khandsari Inspectors.
The grievance of the petitioners is that some of the petitioners have been assigned lower place in the seniority list even though they were recruited earlier and have been continuously in service.
To illustrate, petitioners pointed out that petitioners 1 to 3 have been placed at Serial Nos 25,29 and 27, respectively though all of them were recruits of 1960 while respondent No. 7 J.S. Negi, who was recruited on March 23, 1961 was assigned the place at Serial No. 15 and respondent No.4 O. N. Chaturvedi, who was recruited on March 23, 1961 was shown at Serial No. 6.
Similarly, respondent No. 9 P.N. Rai, who was also recruited on March 23, 1961 was shown at Serial No 17 and respondent No. 5 was shown at Serial No. 8.
The petitioners further pointed out that petitioners Nos. 4, 5, 6, 7 and 8, who were recruits of 1961 have been assigned places Nos. 30, 34, 42, 35 and 31 respectively while recruits of 1963 have scored a march over them in the provisional seniority list.
The petitioners assert that when the recruitment was made in the year 1960, the post of Khandsari Inspector was not within the purview of the Public Service Commission and that they were regularly recruited to posts which were temporarily sanctioned and indefinitely continued till today and therefore, in reckoning the seniority, they must be given the benefit of the length of continuous officiation.
They further contend that when the post of Khandsari Inspector was later brought within the purview of the Public Service Commission, the names of the petitioners who were already recruited in service as also of some of the respondents were forwarded to the Public Service Commission for approval and except petitioner No 9 section P. Gupta, the names of rest of the petitioner were approved by the Public Service Commission on September 30, 1963, the relevant date in the case of petitioner No. 9 is April 14, 1978.
The petitioners assert that even assuming that their appointment would be regular after approval of the Public Service Commission, yet once such approval is granted ' it would relate back to the 76 date of appointment and the previous length of service cannot be ignored or denied in computing their seniority in the absence of any statutory rule or administrative instruction which has the force of law.
The petitioners further aver that in the absence of any other statutory rule or administrative instruction for determining seniority, length of continuous officiation provides a valid principle for determining seniority.
Viewed from this angle, petitioners 1 to 3 would be senior to all the respondents and the placement of the remaining petitioners vis a vis the respondents will have to be recomputed.
On the circulation of the provisional seniority list, the petitioners submitted various representations pointing out the error in drawing up the provisional seniority list but till this day no reply was given nor any final seniority list circulated nor reasons assigned for rejecting the representations.
The petitioners further say that despite their representation, respondents 1, 2 and 3 are operating the tentative seniority list for making further promotions to the post of Khandsari Officer and Assistant Sugar Commissioner and thereby they are being denied equality of opportunity in the matter of promotion.
The petitioners accordingly questioned by these writ petitions the validity and legality of the provisional seniority list asserting that as the final seniority list is not being drawn up and as the representations are being ignored and yet the provisional seniority list is being operated to the disadvantage of the petitioners thereby denying them equality of opportunity in the matter of promotion which action of the respondents 1 to 3 is violative of articles 14 and 16.
Kailash Narain Pandey, Additional Sugar Commissioner filed affidavit in opposition.
It was admitted that by the Govt.
Order dated November 21, 1959 temporary posts of Licensing Inspectors later redesignated as Khandsari Inspectors in the pay scale of Rs. 120 250 were created but according to him as the maximum of the scale was over Rs. 200 right from its inception, the post was within the purview of the Public Service Commission in view of Regulation 5 (a) of Appointment Department Misc.
No. 99/II B 151 60 dated January 29, 1954 issued under the Uttar Pradesh Public Service Commission (Limitation of Func 77 tions) Regulations, 1954.
It was then stated that on the framing of the Khandsari Licensing Scheme, it became necessary to urgently appoint Inspectors to implement the scheme and therefore, the third respondent Sugar Commissioner as Appointing Authority pending regular selection through open competition by the Public Service Commission proceeded to make appointments and the appointment of the petitioners were of a stopgap or ad hoc nature and that it created no right to the post.
It was admitted that petitioners Nos 1 and 2 were recruited after holding departmental competitive test on March 4, 1960.
Petitioner No. 3, who was then working as a Clerk in Cane Union Federation Ltd., Lucknow was selected on May 24, 1960 by applying a weeding out test.
Petitioners Nos.
4 to 8 were recruited after holding qualifying test and interview on 23rd March, 1961 and Petitioner No. 9 was appointed as and by way of stopgap arrangement.
It was contended that the petitioners were appointed on an ad hoc and temporary basis as a measure of stopgap arrangement.
It was conceded that all the petitioners except petitioner No. 9, were approved by the Public Service Commission for regular appointment in the year 1963, to be specific on 30th September, 1963 and they have continued uninterruptedly in the posts of Khandsari Inspectors.
It was further averred that within a period of one year and seven months from the date of appointment of the petitioners the State Public Service Commission selected candidates to replace the already working unapproved Licensing Inspectors on the request of the Department and sent a list of approved candidates on September 14, 1961, but only 5 out of 44 such selected candidates joined and hence the Department has to permit the petitioners to continue though according to the third respondent notice of termination of service were served on some of the petitioners.
It was further pointed out that when the State Public Service Commission proceeded to recommend candidates for the post of Khandsari Inspectors, some of the petitioners applied for such posts, but their applications were rejected at the stage of scrutiny.
But on a request from the Department the State Public Service Commission entertained the applications, called the petitioners for interview and approved them.
It was admitted that except petitioner No. 9 all the rest of the petitioners were approved by the Public Service Commission on September 30, 1963.
Justifying the drawing up of the tentative seniority list as being based on recommendations of Public Service Commission, it 78 was said that the service which can be taken into consideration for determining the length of continuous officiation must commence from the date of substantive appointment and accordingly the provisional seniority list has been drawn up keeping in view the date of approval by the Public service Commission in respect of each candidate.
It was averred that if this principle is valid for the purpose of article 16, there is no error in drawing up the seniority.
It was specifically stated that it was open to the Government to ignore officiating service or service rendered on appointment in an ad hoc or stopgap arrangement.
It was broadly stated that before a man can claim to have his seniority determined in the cadre, he must belong to the cadre and he can only enter the cadre on substantive appointment.
The rival contentions would bring into focus the controversy between the parties.
The impugned provisional seniority list dated March 22, 1971 is drawn up on the length of continuous officiation determined by the date of selection/approval of each person be the State Public Service Commission.
In the process service prior to the approval by the Public Service Commission is wholly ignored while reckoning seniority with the result that the recruits of 1961 have scored a march over those who were recruited earlier in the cadre and have been uninterruptedly officiating in the post and who at a later date were approved by the Public Service Commission for appointment as Khandsari Inspectors.
The question is: where on account of exigencies of service, recruitment to a post within the purview of the Public Service Commission is made by the appointing authority, but at a later date the Public Service Commission puts its seal of approval on such an appointee, whether the continuous and uninterrupted service rendered by such appointee prior to the approval by the Public Service Commission can and should be taken into computation while determining seniority based on the principle of length of continuous officiation ? When a seniority list is challenged as being violative of the guarantee of equality enshrined in articles 14 and 16 and prima facie it appears that these who came into the cadre later on scored a march over those who were already in the cadre, it would be for the authority justifying the seniority list to plead and point out the rule for determining seniority on the basis of which the list is drawn up.
If any such rule is pleaded, it would be for those impugning the seniority list to aver and establish that the alleged seniority 79 rule is violative of the fundamental rights guaranteed by articles 14 and 16.
In the affidavit in opposition filed by the Additional Sugar Commissioner on behalf of respondents 1 to 3, it was asserted that the impugned seniority list of the Khandsari Inspectors was drawn up on the principle of the length of continuous officiation reckoned from the date of selection/approval by the Public Service Commission in respect of each employee belonging to the cadre.
It is necessary to refer to this aspect because the averment is vague and of a general nature and later on at the hearing of the petitions reliance was placed on memo No. O 66/II 233 1938 dated January 30, 1940 ( '1940 Order ' for short) for sustaining the seniority list, the affidavit being conspicuously silent with regard to this order.
There is not a whisper of the 1940 Order in the whole of the affidavit in opposition.
However, if the respondents would be in a position to justify the seniority list on any existing statutory rule or administrative instruction which has been invariably followed, it would not be proper to attach too much importance to the vagueness in drawing up pleadings shifting, the stand in the course of the proceedings.
It must, however, be made clear that Mr. Gopal Subramaniam, learned counsel who appeared for respondent No. 1 to 3 attempted to reconcile the averments in the affidavit and the oral submissions made at the hearing of the petitions by urging that when it is said in the affidavit that the seniority in respect of each member of the cadre was reckoned on the principle of length of continuous officiation commencing from the date of selection/approval of each member by the State Public Service Commission respondents 1 to 3 had the 1940 Order in mind.
It is therefore, necessary first to examine the nature and character of the 1940 Order and whether it lays down either by way of a statutory rule or administrative instruction a binding rule of seniority for determining the seniority in the cadre of Khandsari Inspectors.
If it does, it will have to be further ascertained whether upon its true construction, the relevant rule excludes any service rendered by a member of the service prior to his approval/selection by the State Public Service Commission.
The 1940 Order styled as a Memorandum was not annexed to the affidavit in opposition.
A copy of it was submitted at 80 the time of hearing of the petitions.
In its preamble it proceeds to recite that in view of the 'Appointment Department Memorandum No. 233(1)/II 38 dated July 27, 1939 the Department of Secretariat are informed that under Section 241 (1) (B) and (2) (b) of the Government of India Act, 1935, rules have to be framed for appointment to the civil services and posts and conditions of services of persons serving. ' It further proceeds to state that the existing rules for the various provincial specialist and subordinate services under the Government should be revised so as to bring them to conformity with the provisions of the Government of India Act, 1935 and new rules should also be drawn up for services and posts which existed prior to April 1, 1937 but for which no rules were framed, or which have been created after that date. ' The 1940 Order further recites that enquiries are being received as to the lines on which either the old existing rules have to be revised or new rules have to be framed.
It then states that 'the general principles which have been accepted by Government are stated below ' Para 2 of the Order, clearly brings out the nature and character of the 1940 Order, the relevant portion of which reads as under: "2.
Among other things the rules should provide for the following matters." At Item No. 11, seniority is mentioned.
Elaborating how the rule about seniority should be drawn up, the memorandum proceeds to prescribe guidelines as under: "Seniority in service shall generally be determined from the date of substantive appointment to a service, or from the date of the order of first appointment, if such appointment is followed by confirmation.
In special cases seniority may be determined in accordance with the conditions which may suit a particular service." After extensively referring to the 1940 Order, it was urged on behalf of the respondents that the impugned seniority list is drawn up keeping in view the date of appointment, the date 81 of selection/approval by the Public Service Commission, which is the relevant date for the purpose of computing seniority under G.O. of 1940 and the date of confirmation by the department and date of promotion.
The first question is: does the 1940 Order lay down a binding rule of seniority in respect of Khandsari Inspectors ? It may at once be made clear that the cadre of Khandsari Inspectors was first formed under 'Khandsari Licensing Scheme ' which was framed somewhere in November, 1959.
It is difficult to believe that two decades earlier, a seniority rule for a future cadre was prescribed.
It is of course open to the Government to lay down general conditions of service governing all services in the State either by rules framed under Sec.
241 of the Government of India Act, 1935 or on the advent of the Constitution under the proviso to article 309 of the Constitution.
It must be conceded that in the absence of statutory rules, conditions of service in a particular cadre may be governed by executive instructions issued by the Government in exercise of its executive power.
At any rate, 1940 Order does not purport to lay a statutory rule framed under Sec.
241 of the Government of India Act, 1935 because the memorandum recites that in view of the provisions contained in Sec.
241, rules have to be framed for appointment to civil service and posts and conditions of service of persons serving.
It further recites that rules will have to be framed in respect of services which may be created for the first time after the advent of the Government of India Act, 1935.
The memorandum further provides that whenever there is an occasion for framing statutory rules or issuing executive instructions governing conditions of service, there must be some uniformity in this behalf and accordingly the memorandum proceeded to point out what should generally be the contents of the rules and on what model they should be framed.
Therefore, unquestionably the memorandum prescribes guidelines for framing rules governing conditions of service.
The memorandum is something akin to model standing orders.
At any rate it does not purport to prescribe statutory rules or executive instructions governing conditions of service.
82 This further becomes clear from the penultimate paragraph of the memorandum in which it is stated that the principles set out in the memorandum will be generally suitable for service or posts recruitment to which is conducted through the Public Service Commission and whenever the departure is made the same should be justified.
Directions are given by the memorandum that the departments of the Secretariat should proceed with the revision of the existing service rules or frame rules for new service and posts under their control in accordance with the principles set out in the memorandum.
The departments were directed to draw up the draft rules and when ready they were required to be submitted for the scrutiny of the appointment department and should be accompanied by a self contained note in which the important points and deviation from the above principles should be explained and justified.
It is thus abundantly clear that the memorandum of 1940 merely prescribed guidelines for the departments of the Secretariat either to frame statutory rules or executive instructions governing conditions of service in respect of existing services, if there are no rules or they may be modified or amended so as to bring them generally in conformity with the 1940 Order and whenever a new post or a new cadre in a service is set up to frame rules in conformity with guidelines prescribed in 1940 Order.
The 1940 Order does not purport to lay down conditions of service governing any cadre either specifically or generally.
It provides a model and unless the model is adopted, it is commonsense to say that it is not binding.
Therefore, the contention that 1940 Order prescribes binding conditions of service and which have been followed in drawing up the seniority list does not commend to us and must be rejected.
Assuming that in the absence of any specific rule to the contrary having not been shown to have been adopted, the Department accepted the model as the binding one, the next question is: whether upon its true construction it permits previous service to be wholly ignored in reckoning seniority.
The model set out at Item No. 11 governing seniority merely enacts the well known rule of seniority in Government Service, namely, seniority being determined in accordance with length of continuous officiation.
In the absence of any other rule valid for 83 determining seniority under article 16 rule or seniority being determined by the length of continuous officiation has been accepted as valid by the courts.
In a very recent opinion of this Court in P.S. Mahal and Ors.
vs Union of India and Ors.
Bhagwati, J. after referring to Bishan Sarup Gupta vs Union of India observed as under: "There was no specific seniority rule to determine inter se seniority between the direct recruits and the promotees appointed regularly within their respective quota from and after 16th January, 1959 and though, in the absence of any specific seniority rule, the Court could have applied the residuary rule based on length of continuous officiation, the Court did not do so because it felt that since the old seniority rule had ceased to operate by reason of the infringement of the quota rule, it would be for the Government to devise "a just and fair seniority rule as between the direct recruits and the promotees for being given effect to from 16th January, 1959." Therefore, in the absence of any specific rule of seniority governing a cadre or a service, it is well settled that length of continuous officiation will provide a more objective and fair rule of seniority.
And that is exactly what the model in the memorandum prescribes.
It says that seniority in service shall generally be determined from the date of substantive appointment to a service.
If the rule were to stop here, the question would arise: what constitutes substantive appointment to a post within the purview of the Public Service Commission ? But the rule does not stop by merely saying that the seniority shall generally be determined from the date of substantive appointment to a service.
It further provides that it may be determined commencing from the date of the order of the first appointment, but proceeds to qualify the last clause by providing: 'if such appointment is followed by confirmation '.
In other words, a rule for determining seniority may provide length of continuous officiation from substantive appointment or from the date of the order of the first appointment if such appointment is followed by confirmation.
In the latter case, once confirmation is made and the service till then is uninterrupted and continuous it relates back to the date of the order of the first appointment.
84 Now model Rule 11 suggests as guidelines two independent principles for determining seniority, namely (1) seniority be reckoned from the date of substantive appointment and (2) from the date of the order of first appointment, if such appointment is followed by confirmation.
Two different starting points for reckoning seniority are set out in the model and it is difficult to assume that department adopted one and rejected the other without making a specific rule in that behalf.
The question that can then be posed is: what constitutes substantive appointment in a cadre which is within the purview of the Public Service Commission.
Now the cadre of Khandsary Inspectors was formed in 1959.
There is no material to show that at that time it was within the purview of the Public Service Commission.
A vague statement was made that under the Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954, any post with a sanctioned scale, the maximum of which exceeds Rs. 200/ would be within the purview of the Public Service Commission.
It was therefore, said that the post of Khandsari Inspector was within the purview of the Public Service Commission.
It was then urged that as the 'Khandsari Licensing Scheme ' was to be urgently implemented, the appointing authority filled in the posts pending recruitment by the Public Service Commission.
This statement is not borne out by the record.
On May 4, 1960, 9 persons including petitioners Nos. 1 and 2 were temporarily appointed as Licensing Inspectors.
The appointment order does not show that the appointment was pending selection of regular candidates by the Public Service Commission.
In fact, some confusion in this behalf crept in because a statement was made at the hearing of these petitions that the post of Khandsari Inspectors came within the purview of the Public Service Commission in 1961.
Undoubtedly, the post of Licensing Inspector was created in the first instance upto March, 31, 1960.
But it may be mentioned that it has continued uninterruptedly till today and has become a permanent cadre.
Identical appointment orders was issued in favour of petitioner No. 3 some of the petitioners including petitioners Nos. 4, 5, 6, 7 and 8 and some of the respondents including respondents Nos. 4, 5, 6, 7 and several others came to be appointed by the Order dated March, 23, 1961.
(Annexure 'B ' to the petition).
In this appointment order it was clearly stated that 'on the result of the qualifying test and interview held for the posts of Khandsari Inspectors in the months of February, and March, 1961, the candidates as noted in the enclosed list are temporarily appointed as officiating Khandsari Inspectors in 85 the scale of Rs. 120 6 210 EB 10 250 plus usual dearness allowance per month subject to final selection by Public Service Commission at any later date. ' The recitals in the order do not spell out that the appointees were to hold stop gap arrangement till a candidate by the Public Service Commission is made available.
On the contrary, the recitals clearly indicate that those appointees will have to face the approval test by the Public Service Commission.
Now if petitioner Nos. 1 and 2 came to be appointed in 1960 and respondents 4, 5 and 6 came to be appointed in 1961 and the appointment of each of them had to be approved by the Public Service Commission, once the approval is granted, the same will relate back to the date of first appointment.
That is the meaning of the expression in Model No.11; 'or from the date of the order of the first appointment, if such appointment is followed by confirmation. ' It is not disputed that all the petitioners except Petitioner 4 were approved by the Public Service Commission on September, 30, 1963 and yet respondent No. 7 J.S. Negi is shown at section No. 17 while petitioner No. 1 who joined service on March, 4,1960 and whose appointment was approved on the same day has been assigned section No. 27 in the seniority list.
If the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment regular, it is obvious commonsense that in the absence of a contrary rule, the approval which means confirmation by the authority which had the authority power and jurisdiction to make appointment or recommend for appointment, will relate back to the date on which first appointment is made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation.
That had not been done in this case.
Therefore, assuming that the model principle set out in the 1940 Order has a binding effect, the impugned seniority list does not conform to the prescribed guideline and would certainly be invalid.
Once it is shown that the 1940 Order did not prescribe any binding rule or seniority, but it was a model prescribed for adoption and the adoption having not been shown, it cannot prescribe a binding rule of seniority.
Assuming that it is deemed to have been adopted the seniority list does not conform to the model as interpreted by us.
Now if there was no binding rule of seniority it is well settled that length of continuous officiation prescribes a valid principle of seniority.
The question is from what date the service is to be reckoned ? 86 It was urged that any appointment of a stop gap nature or pending the selection by Public Service Commission cannot be taken into account for reckoning seniority.
In other words, it was urged that to be in the cadre and to enjoy place in the seniority list, the service rendered in a substantive capacity can alone be taken into consideration.
We find it difficult to accept this bald and wide submission.
Each case will depend upon its facts and circumstances.
If a stop gap appointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, we see no justification for ignoring his past service.
At any rate, there is no justification for two persons selected in the same manner being differently treated.
That becomes crystal clear from the place assigned in the seniority list to petitioner No. 1 in relation to respondent No. 7.
In fact if once a person appointed in a stop gap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he has to be assigned seniority accordingly unless a rule to the contrary is made.
That has not been done in the case of all the petitioners.
The error is apparent in the case of petitioner 1 and respondent No. 7.
These errors can be multiplied but we consider it unnecessary to do so.
In fact a fair rule of seniority should ordinarily take into account the past service in the stop gap arrangement is followed by confirmation.
This view which we are taking is borne out by the decision of this Court in Baleshwar Dass and Ors.
vs State of U.P. and Ors.
, wherein this Court observed that the principle which has received the sanction of this Court 's pronouncement is that 'officiating service in a post for all practical purposes of seniority is as good as service on a regular basis.
It may be permissible, within limits for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorical and do not admit of any ambiguity and cruelly arbitrary cut off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts. ' It was said that service rules will have to be reasonable, fair and not grossly unjust if they are to survive the test of Articles 14 and 16.
It is thus well settled that where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list.
Admittedly, that has not been done and the seniority list is drawn 87 up from the date on which the approval/selection was made by the Public Service Commission in respect of each member of the service, which is clearly violative of article 16, and any seniority list drawn up on this invalid basis must be quashed.
A grievance was made that the petitioners have moved this Court after a long unexplained delay and the Court should not grant any relief to them.
It was pointed out that the provisional seniority list was drawn up on March, 22, 1971 and the petitions have been filed in the year 1983.
The respondents therefore submitted that the court should throw out the petitions on the ground of delay, latches and acquiescence.
It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it.
We are not disposed to accede to this request because respondents 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners.
Petitioners went on making representations after representations which did not yield any response, reply or relief.
Coupled with this is the fact that the petitioners belong to the lower echelons of service and it is not difficult to visualise that they may find it extremely difficult to rush to the Court.
Therefore, the contention must be rejected.
In view of the discussion, these petitions succeed and are allowed and a writ in the nature of certiorari is issued quashing the impugned seniority list dated March 22, 1971 in respect of Khandsari Inspectors.
The respondents 1 to 3 are directed to draw up a fresh seniority list based on the principle of length of continuous officiation reckoned from the date of first appointment if the appointment is followed by confirmation i.e. selection/approval by the State Public Service Commission.
We order accordingly, but in the circumstances of the case, there will be no order as to costs.
N.V.K. Petitions allowed.

summary:
In the year 1958 59 the State Government framed the Khandsari Licensing Scheme to regulate the supply of sugarcane to sugar factories.
Posts of Khandsari Inspectors initially designated as Licensing Inspectors were created in the pay scale of Rs. 120 250.
Petitioners in the writ petitions were appointed as Khandsari Inspectors between March and May, 1960.
Thereafter some of the respondents were recruited as Khandsari Inspectors and along with some others who were recruited departmentally were approved by Public Service Commission.
On March, 22, 1971 the third respondent the Sugar Commissioner circulated a provisional seniority list of Khandsari Inspectors.
71 The petitioners represented against the seniority list contending that they were assigned lower place in the seniority list even though they were recruited earlier and have been continuously in service.
The representations having been rejected, writ petitions were filed in this Court.
In their writ petitions to this Court, the petitioners contended that when recruitment was made in the year 1960, the post of Khandsari Inspector was not within the purview of the Public Service Commission and that they were regularly recruited to posts which were temporarily sanctioned but indefinitely continued and therefore, in reckoning their seniority, they must be given the benefit of the length of continuous officiation, and that once approval is granted by the Public Service Commission it would relate back to the date of their appointment and that the previous length of service cannot be ignored or denied in computing seniority in the absence of any statutory rule or administrative instruction.
It was further pointed out that petitioner Nos. 4 to 8, who were recruits of 1961 had been assigned places Nos.
34, 42, 35 and 31 respectively in the seniority list while recruits of 1963 had scored a march over them in the provisional seniority list.
The respondents contested the writ petitions contending that by a Government order temporary post of Licensing Inspectors were re designated as Khandsari Inspectors and that the post right from inception was within the purview of the Public Service Commission, that on the framing of the Khandsari Licensing Scheme, it became necessary to urgently appoint Inspectors to implement the scheme, and therefore the third respondent the Sugar Commissioner who was the appointing authority pending regular selection through open competition through Public Service Commission proceeded to make the appointments of the petitioners as stop gap or ad hoc nature and that their appointment created no right to the post.
The drawing up of the tentative seniority list was justified as being based on the recommendations of the Public Service Commission, and it was submitted that the service which can be taken into consideration for determining the length of continuous officiation must commence from the date of substantive appointment and that the provisional seniority list had been drawn up keeping in view the date of approval by the Public Service Commission in respect of each candidate and that there was no error in drawing up the seniority list.
It was further contended that promotions which were granted on the basis of the provisional seniority list were not questioned by the petitioners and they have acquiesced in it, and that the petitioners had moved the Court after a long unexplained delay and that the Court should not grant any relief.
Allowing the Writ Petitions, 72 ^ HELD: (1) The impugned seniority list dated March 21, 1971 in respect of Khandsari Inspectors is quashed.
Respondents 1 to 3 are directed to draw up a fresh seniority list based on the principle of length of continuous officiation reckoned from the date of first appointment if the appointment is followed by confirmation i.e. selection approval by the State Public Service Commission.
[87 F] (2) (i) The Memorandum of 1940 merely prescribed guidelines for the departments of the Secretariat either to frame statutory rules or executive instructions governing conditions of service in respect of existing services if there are no rules, or they may be modified or amended so as to bring them generally in conformity with the 1940 Order, and whenever a new post or a new cadre in a service is set up to frame rules in conformity with guidelines prescribed in the 1940 Order.
The 1940 Order does not purport to lay down conditions of service governing any cadre either specifically or generally.
It provides a model and unless the model is adopted it is not binding.
[82 D F] (ii) Assuming that the model principle set out in the 1940 order has a binding effect the impugned seniority list does not conform to the prescribed guidelines and is invalid.
[85 F] (3) (i) A fair rule of seniority should ordinarily take into account the past service if the stop gap arrangement is followed by confirmation.
[86 E] (ii) If a stop gap appointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, there is no justification for ignoring past service.
There is also no justification for two persons selected in the same manner being differently treated.
If once a person in a stop gap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he has to be assigned seniority accordingly unless a rule to the contrary is made.
In the instant case, that has not been done to all the petitioners.
The error is apparent in the case of petitioner No. 1 and respondent No. 7.
[86 B D] (iii) When a seniority list is challenged as being violative of the guarantee of equality enshrined in Articles 14 and 16 and prima facie it appears that those who came into the cadre later on scored a march over those who were already in the cadre, it would be for the authority justifying the seniority list to plead and point out the rule for determining seniority on the basis of which the list is drawn up.
If any such rule is pleaded it would be for those impugning the seniority list to aver and establish that 73 the alleged seniority rule is violative of the fundamental rights guaranteed by Articles 14 and 16.
[78 G H; 79A] (4) (i) It is open to the Government to lay down general conditions of service governing all services in the State either by rules framed under Section 241 of the Government of India Act 1935, or on the advent of the Constitution under the proviso to Article 309 of the Constitution.
In the absence of statutory rules, conditions of service in a particular cadre may be governed by executive instructions issued by the Government in exercise of its executive power.
[81 C E] (ii) In the absence of any other rule valid for determining seniority under Article 16, seniority being determined by the length of continuous officiation has been accepted as valid by the courts.
[82 H; 83 A] P.S. Mahal and Ors.
vs Union of India and Ors.
and Bishan Sarup Gupta vs Union of India, ; , referred to.
(5) Model Rule 11 suggests as guidelines two independent principles for determining seniority; namely (1) seniority should be reckoned from the date of substantive appointment, and (2) from the date of the order of first appointment if such appointment is followed by confirmation.
[84 A] In the instant case, recitals in the appointment order do not spell out that the appointees were to hold stop gap arrangement till a candidate selected by the Public Service Commission is made available.
On the contrary, the recitals clearly indicate that those appointees will have to face the approval test by the Public Service Commission.
If petitioner Nos. 1 and 2 came to be appointed in 1960 and respondent Nos. 4, 5 and 6 came to be appointed in 1961 and the appointment of each of them had to be approved by the Public Service Commission, once the approval is granted the same will relate back to the date of first appointment.
That is the meaning of the expression in Model No. 11; 'or from the date of the order of the first appointment if such appointment is followed by confirmation. ' [85 A C] (6) Where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list.
[86 G] Baleshwar Dass and Ors. etc.
vs State of U.P. and Ors.
,[1981] 1 SCR 449, referred to.
74 In the instant case, respondents 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners.
Petitioners went on making representations after representation which did not yield any response, reply or relief.
Further, the petitioners belong to the lower echelons of service and it is not difficult to visualise that they may find it extremely difficult to rush to the court.
The contention that the writ petitions should be thrown out on the ground of delay, latches an acquiescence must therefore be rejected.
[87 C D]


judgement:
ition Nos.
7014, 7426 28 of 1982, 7419, 7377 78, 7278, 6460, 7078, 6461, 5720, 7428, 7454 6896, 6894, 7288, 6895, 6892 97, 7421, 75 0, 7289, 7525, 7422, 6897, 6462, 7378, 5720, 5719 & 7290 91 of 1982.
(under Article 32 of the Constitution of India) With Special Leave Petition (Civil) No. 9149 of 1982.
From the Judgment and order dated the 14th September, 1982 of the Punjab and Haryana High Court in C.W.P. No. 3460 of 1982.
And Special Leave Petition (Civil) No. 9076 of 1982.
From the Judgment and Order dated the 1st September, 1982 of the Punjab and Haryana High Court in WP No. 3299 of 1982.
And Special Leave Petition (Civil) No. 9289 of 1982.
Dr. Adarsh Kapoor & Mrs. V.D. Khanna for the Petitioners.
P.P. Rao, R. Venkataraman, A. Mariapatham & M/s. Aruna Mathur for M.D. University.
R.N. Poddar for the State.
The Judgment of the Court was delivered by 275 DESAI J.
As the matter brooked no delay, at the conclusion of the arguments, the Court pronounced the following order reserving reasons to be given at a later date.
"The petitions succeed to the extent herein indicated.
Let a writ be issued quashing reservation of 25 seats in favour of candidates coming from Rural Areas and educated in common Rural School for admission to MBBS Course 1982 at Medical College, Rohtak affiliated to Maharshi Dayanand University.
Consequently the respondents are directed to admit in 1st MBBS Course of the same College commencing from July, 1983, such number of students who secured admission against the reservation for candidates coming from Rural Areas and educated in Common Rural School in 1982, according to the general merit list drawn up in respect of candidates, who sought admission and in the absence of such a list, a waiting list should be drawn up according to merits, for the year 1982.
The respondents are directed to work out the admissions as per the direction herein made before May 31, 1983 and give intimation to the students who become eligible for admission.
There will be no order as to costs.
Reasons to follow," Here are the reasons.
In this group of petitions under article 32 of the Constitution, the petitioners questioned the validity and legality of reservation of 25 seats for candidates coming from rural areas for admission to first M.B.B.S./B.D.S. Course for 1982 session in the Medical Faculty or the Third respondent Maharishi Dayanand University Rohtak ( 'University ' for short).
The University issued a prospectus on June 12, 1982 inviting applications for appearing at an Entrance Test for selecting candidates for admission to MBBS/BDS Course, 1982.
In this prospectus, reserved seats were shown as under: "(A) RESERVED SEATS: Categories No. of Seats (a) Scheduled Caste/Tribes 30 (b) Rural areas 25 276 (i) Out of these 5 are reserved for girls, if available, otherwise these will also be for boys.
(ii) For deciding the eligibility of a candidate from rural areas, the following criterion will be observed: A candidate must have received education from Class I to Class 8 and passed 8th class examination from a common Rural School situated in any village not having any Municipality or notified area or Town Area Committee.
For this purpose a certificate is required to be submitted which may be seen in Appendix 'C '.
. . . . . . . . . " In short out of a total of 148 seats available for admission, 80 seats were to be filled in according to the merit list drawn up on the performance at the entrance examination and the rest were reserved for different classes of candidates.
The petitioners challenge only the reservation of 25 seats for candidates coming from the rural areas as being violative of articles 14, 15(4) and 29 (2) of the Constitution inasmuch as the classification is arbitrary, unintelligible and unrelated to the objects sought to be achieved and not saved by article 15(4).
It was alleged that to classify candidates on the basis of their education in a school in rural area and urban area is irrational inasmuch as before seeking admission to the Medical Faculty even the student coming from rural areas and having been educated in common rural school from 1st to 8th standard would have taken further education for a period of 40 years before seeking admission to the medical college.
It was therefore said that earlier education from 1st to 8th standard either in urban schools or common rural schools both having identical syllabus and examination evaluation prescribed by a common authority is hardly of any relevance while considering the merit for admission to the medical college more so because all students coming either from urban schools or those educated in common rural schools were required to undergo further education for a period of 4 years after the 8th standard in urban schools or schools which can be compared with urban schools.
The petitioners contend that the reservation is not sustainable under article 15(4) because candidates educated in common rural school cannot as a class be said to be society and educatio 277 nally backward and therefore, the reservation would not satisfy the test prescribed by article 15(4) of the Constitution.
The petitioners aver that the syllabus for 1st to 8th standard adopted in common rural schools and urban schools is entirely identical prescribed by the same Government and the qualification of teachers for being appointed in the urban schools or the common rural school is the same and they are transferable from one area to the other area.
It was also contended that the majority of the population in the State of Haryana as in whole country is residing in rural areas and the reservation in favour of majority would be void ab initio.
Lastly it was said that the classification apart from being arbitrary and irrational does not satisfy the twin tests of it being based on intelligible differentia and having any nexus to the objects sought to be achieved.
The petitioners say that some from amongst respondents 5 to 49 have been admitted against reservation for candidates coming from rural areas and even though the petitioners had obtained higher marks at the entrance examination and were placed higher in the merit list yet they have been denied admission on account of the constitutionally invalid reservation and therefore, their admissions should be struck down and the University may be directed by a mandamus to reconsider the eligibility for admission after ignoring the reservation in favour of students from rural areas.
Mr. K.L. Guglani, Registrar of the University filed his affidavit in opposition inter alia contending that the classification and the consequent reservation is valid under article 14 of the Constitution.
It was submitted that in order to correct the regional imbalance in the matter of admissions to medical college, the Govt.
of Haryana had carried out a sample survey of the comparative facility/inequalities between the students of the schools situated in the rural and the urban areas at the primary, middle and high school stages in 1979 which revealed that the students studying in common rural schools suffer from serious handicap such as non availabilty of electric fans in summer and on the onset of rainy season, the difficulty of access to the school resulting in shortening of the academic year in such schools with consequent disadvantages in their academic achievement as compared to children in the urban schools where the academic sessions goes undisturbed by extreme summer or rainy season.
The sample survey further revealed that most of the common rural schools are ill houses, ill staffed and ill equipped.
There is no provision for regular medical check up of students at 278 any common rural school resulting in the neglect for the upkeep of their health and this becomes a factor for the low achievements of students in rural schools.
The sample survey also revealed that the teachers attached to common urban schools residing in urban areas reached the school premises just in time to take the classes and leave soon after the school time is over thus denying the establishment of personal contact with the students resulting in the denial to such students an opportunity of development.
It was further submitted that the students coming from urban areas after taking medical education declined to settle down in rural areas and this will help in extending medical facilities solely needed for rural population.
In order to correct this imbalance and the utter handicap felt by the students studying in common rural schools, students seeking admission were divided into different classes based on intelligible differentia and that if the object of medical education is to extend medical facilities where it is needed the most, reservation for candidates coming from rural areas would achieve the object and therefore, the State Govt.
was perfectly justified in making this reasonable and rational classification.
At a later date Dr. D.C. Mehrotra, Director Principal, Medical College, Rohtak filed affidavit in opposition on behalf of respondents 1 to 3 which appears to be a carbon copy of the affidavit filed by the Registrar Mr. Guglani.
The only question which needs answer is whether reservation of '25 seats for rural areas ' for admission to 1982 session in the Medical College attached to the University is constitutionally valid.
It must at once be made clear that the respondents did not at all attempt to sustain the reservation under sub article
(4) of article 15 which enabled the State to make special provision for advancement of any socially and educationally backward classes of citizens or for the scheduled caste and scheduled tribes.
The respondents contended that the reservation of 25 seats for candidates coming from rural areas is valid and can be sustained under article 14 of the Constitution.
Therefore, the question is: whether the classification between the students educated in urban school and common rural schools is based on any intelligible differentia which has a rational nexus to the objects sought to be achieved ? It is well settled that article 14 forbids class legislation but 279 permits reasonable classification in the matter of legislation.
In order to sustain the classification permissible under article 14, it has to satisfy the twin tests: (1) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) the differentia must have a rational relation to the object sought to be achieved by the impugned provision.
Does the classification on the basis of candidates coming from rural areas against urban area in the matter of admission to medical college satisfy the twin tests.
If the attempt at amplification of the classification resorted to by the respondents is ignored for the time being, the broad classification is that the students coming from rural areas are classified separately for the purpose of admission to the medical college.
The reservation is described in the prospectus as: 'Rural areas 25 seats '.
If the matter were to rest here, it would have been unnecessary to write this judgment in view of the decision of this Court in State of U.P. vs Pradeep Tandon(1) In that case the State of U.P. had made reservation for admission to medical college in favour of the candidates from rural, hill and Uttarkhand areas on the ground that the people coming from these areas belonged to socially and educationally backward classes.
The reservation was challenged as being violative of articles 14 and 15 and not protected by article 15(4).
The State sought to sustain the classification under article 15(4) urging that the object of the classification was the advancement of facility for medical education for candidates coming from reserved areas as the people coming from these areas belonged to socially and educationally backward classes.
This contention was accepted in part and negatived in past.
Striking down reservation of candidates coming from rural areas, the Court held that reservation for rural areas cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens and the reservation appears to be made for the majority population of the State and on the ground of place of birth.
The Court upheld reservation in favour of candidates from Hill and Uttarkhand areas on the ground that reservation in favour of the people in those areas who belonged to socially and educationally backward classes of citizens.
Distinguishing the case of reservation in favour of candidates coming from rural areas, the Court observed that the backwardness contemplated by article 15(4) is both social and educa 280 tional backwardness of the citizens, the accent being on classes of citizens socially and educationally backward and therefore, socially and educationally backward citizens cannot be equated with areas as a whole socially and educationally backward.
The Court concluded that some people in the rural areas may be educationally backward, some may be socially backward and there may be few who are both socially and educationally backward but it cannot be said that all citizens residing in rural areas are socially and educationally backward.
Accordingly, the reservation in favour of candidates coming from rural areas was held as constitutionally invalid.
This reasoning would apply mutatis mutandis to the facts in the present case because the reservation is in favour of candidates coming from rural areas.
It was however, contended by Mr. P.P. Rao on behalf of the University that the Court should not merely confine itself to the headline in the prospectus but read the entire entry specifying reservation especially the conditions of eligibility for the reserved seats.
Reading it thus it was said that the reservation was in favour of students not coming from rural areas but in favour of students who were educated in common rural schools.
Proceeding along it was said that before making the reservation the State Government had undertaken a sample survey, portions of which are extracted in certain correspondence annexed to the affidavit in opposition which when examined in proper perspective would show that the students educated in common rural schools suffered certain handicaps and are comparatively at a disadvantage in the matter of attaining high merit for competing with students coming from urban schools and therefore, the State deemed it proper to extend the protection in the matter of admission to such handicapped students.
This submission was further amplified by saying that students coming from urban areas and joining medical colleges are generally disinclined to go to rural areas for rendering medical service while if students coming from rural areas are encouraged by reservation to take the medical education, one can reasonably expect them to return to the rural areas, the habitat of their childhood, and to make such rural places their field of activity, which would simultaneously extend medical service to rural areas which is otherwise ill starved in this behalf.
It was pointed out that the common rural schools have neither laboratories nor library facilities and that it is ill equipped, ill housed and ill manned in the matter of staff, facilities and equipment.
To over come these handicaps and to provide an opportunity 281 to the students educated in such schools against fierce competition from those students coming from well equipped and manned by highly trained staff urban schools, the classification between the students coming from common rural schools and those coming from urban school in the matter of admission to the medical college satisfied the twin tests of constitutionally valid classification.
Before anyone becomes eligible to compete for admission to the medical college in the year 1982, it was incumbent upon such a student to clear the 12th standard examination.
This is true in respect of all students seeking admission to medical college irrespective of the fact whether they have been educated in the common rural schools or urban schools.
Now the reservation is in favour of candidates from rural areas which expression in amplified to mean 'a candidate must have received education from Class 1 to class 8 and passed 8th Class examination from a common Rural School situated in any village not having any Municipality or Notified Area or Town Area Committee. ' It would at once appear that every candidate seeking admission to medical college must have studied upto the 12th class which would mean that even a candidate coming from the common rural school meaning thereby one who has taken his education upto 8th standard in such a school, yet subsequently he has joined a school which imparts education upto the 12 standard.
Such a candidate has joined a school for a period of 4 years after having come out of the common rural school.
It is nowhere suggested that this education for 4 years by a student coming from common rural school is in a school which is either unequal to the urban school or comparatively ill equipped, ill housed or ill staffed.
The necessary inference that follows from this is that all students seeking admission to the medical college have atleast taken education for the last 4 years, in schools which are comparatively similar.
What then is the relevance of the education taken from Class I to Class 8 for the purpose of admission to a medical college.
It was conceded that the specialised subjects which will qualify a student for appearing at the entrance examination for admission to medical college are to be selected from the 11th standard onwards.
It was also conceded that the syllabus for students from Class I to Class 8 either for urban schools or common rural schools is entirely identical and prescribed by the same authority, and this syllabus includes subjects of general knowledge.
It does not provide any specialised knowledge.
Therefore, it passes comprehension as to what importance can be 282 attached to education from Class 1 to Class 8 for admission to medical college which is divided by a span of over 4 years that of Class IX to Class XII (both inclusive) and in respect of which students coming from all schools are similarly situated, similarly circumstanced and similarly placed and similarly treated and exposed to same educational environments without the slightest difference.
The question then is: can the previous differentiation, if there by any, provided a rational basis for classification The answer obviously is in the negative.
The knowledge acquired in the years spent from Class 1 to Class VIII is of a general nature exposing the student to reading, writing, understanding simple arithmetics, general knowledge of History, Geography and introductory mathematics.
The introductory knowledge of these subjects could hardly be said to equip a student for admission to medical college.
The education imparted in Class IX and X is little more than introductory.
In these classes, the student is being prepared for deeper study.
The selection of specialised subjects has to be made in Classes XI and XII and in respect of education in Classes IX to XII, all students being educated in all schools are similarly situated similarly circumstance and similarly placed with no differentiation.
The earlier handicap of education in Classes 1 to 8, if there be any, becomes wholly irrelevant and of no consequence and therefore, cannot provide an intelligible differentia which distinguishes persons say students seeking admission being grouped together as having been educated in common rural schools from those left out namely the rest.
It would therefore, follow as a corollary that classification based on students coming from common rural schools meaning thereby educated upto 1 to 8th standard in common rural schools vis a vis students educated in urban schools from Ist to 8th standard would not provide intelligible differentia for founding a classification thereon The classification in such a situation will be wholly arbitrary and irrational and therefore the reservation based on such classification would be constitutionally invalid.
This view which we are taking finds support from a decision of this Court in Arti Sapru v State of Jammu and Kashmir & Ors.(1) wherein this Court struck down reservation of 20% of the seats to be filled on the basis of inter se merit to ensure rectification of imbalance in the admission for various parts of the State, if any, so as to give equitable and uniform treatment to those parts.
The Court following the decision in Pradeep Tandon 's case held that the classification attempted by the State suffers from the vice 283 of arbitrariness and must be declared invalid.
It was however., contended on behalf of the respondents that the decision in Pradeep Tandon 's case would not be of any assistance and is distinguishable because in that case reservation was in favour of candidates coming from rural, hill and Uttarkhand areas on the ground that people coming from these areas belonged to socially and educationally backward classes while the reservation in the instant case is founded on the lack of facility for education in common rural schools functioning in rural areas and also that in Pradeep Tandon 's case one of the contentions which found favour with the Court was that the reservation was in favour of a majority which aspect does not arise in the present case.
In support of this submission, learned counsel for the respondents extensively read before us the decision of the full Bench of the Punjab & Haryana High Court in Amar Bir Singh & Ors vs Moha Rishi Dayanand University, Rohtak & Ors(1) The full Bench of the High Court presided over by the then learned Chief Justice upheld the impugned reservation.
The High Court distinguished the decision in Pradeep Tandon 's case observing that the State sought to sustain the reservation under article 15 (4) contending that candidates coming from rural areas belonged to socially and educationally backward classes of citizens and the submission did not find favour with the Court though the Court unreservedly accepted that candidates coming from hill and Uttrakhand areas belonged to socially and educationally backward classes of citizens and sustained reservation in favour of the latter.
It is true that the State did not attempt to sustain the reservation under article 14 but certain observations in the judgment would leave no room for doubt that the aspect of valid classification was present to the mind of the Court.
It was observed that 80% of the population reside, in rural areas and it cannot be said to be a homogeneous class.
Rural habitation cannot constitute it into class.
And it is reservation related to place of birth.
The Court thus examined whether candidates coming from rural areas constitute a distinct homogeneous class for the purpose of admission to medical college and rejected it.
The High Court in Amar Bir Singh 's case on the contrary attempted to sustain the classification of students educated in common rural schools which does not carry conviction.
Having read this judgment minutely and with care and attention that a judgment of the 284 Full Bench of High Court bearing on the same topic merits, we are of the opinion that the manner in which Pradeep Tandon 's case, was sought to be distinguished was artificial apart from being unintelligible.
Undoubtedly the State in Pradeep Tandon 's case attempted to sustain the classification under article 15 (4) but that was not the crux of the matter.
The reservation was in favour of candidates coming from a certain area to wit rural areas.
Now if the amplification of what constitutes candidates coming from rural areas will not enlarge or restrict the operative portion, indisputably the reservation was for candidates coming from rural areas which were styled Pradeep Tandon 's case as socially and educationally backward areas.
It is true that one of the reasons which weighed with the Court in striking down reservation in Pradeep Tandon 's case was that the reservation was in favour of a majority.
Such an argument though available in the present case was not advanced, because any day rural area is comparatively much larger in area and size population to urban area in the State of Haryana.
Therefore, we are not impressed by the submission that the judgment in Pradeep Tandon 's case is distinguishable.
In fact, this Court in Arti Sapru 's case followed the decision in Pradeep Tandon 's case.
Assuming that the decision in Pradeep Tandon 's case does not conclude the point as herein raised, the differentia on which the classification is founded appears to us arbitrary and irrational.
How arbitrary and irrational it is, can be demonstrably established.
In order to take advantage of the reservation students from nearby urban areas can join common rural school on the periphery of urban agglomeration.
And all rural schools without an exception cannot be condemned as ill housed, ill staffed and ill equipped.
Agriculture in Haryana has been a very profitable pursuit and standard of life of average farmer in rural area has gone up compared to middle class and industrial workers and the slum dwellers whose children will attend as a necessity urban schools.
And yet the better place will enjoy reservation.
Further the basis of classification based on education upto 8th standard is wholly irrational.
And it has no nexus to the object sought to be achieved, of providing extra facility to students coming from rural schools to enter medical college.
What was the object sought to be achieved by the classification ? It was said that students taking education in common rural 285 schools from Ist to 8th standard are at a comparative disadvantage to those taking education in urban schools in the same standards.
The comparison in our opinion is fallacious for the reason that the same Government prescribes standards of education, equipment, grants and facilities including the qualification of the staff for being employed in urban and rural schools imparting instructions from Ist to 8th Standard.
However, as pointed out earlier, the knowledge acquired by the students while taking instructions in Class I to VIII has hardly any relevance to his being equipped for taking the test for entrance to the medical college.
The real challenge would come in Standard XI and XII.
In this behalf all students those coming from common rural school and urban school are similarly.
placed and similarly situated and yet by a reference to a past event wholly unrelated to the objects sought to be achieved, they are artificially divided.
It was however said that there was another discernible purpose in making the reservation.
The urbanised students are disinclined to go to rural areas for practice or service and therefore if the students coming from rural common schools are encouraged to seek admission they may return after obtaining qualification to their childhood habitat and thus help extend efficient medical service to rural areas at present wholly neglected.
It was urged if a region is woefully deficient in medical services, there occurs serious educational and health service disparity for that human region which must be redressed by a Welfare State.
It was submitted that the reservation was a step in this direction.
This submission was sought to be supported by referring to Jagdish Saran vs Union of India.(1) This approach overlooks the fact that even students educated in common rural schools would be joining urban schools for four years before going to medical college and then spend about five years in medical college.
There is no guarantee save a wishful thinking that they would return to rural areas.
This is so flimsy a material to sustain classification.
We are therefore satisfied that the classification is not founded on intelligible differentia and at any rate it has no rational nexus to the object sought to be achieved.
The classification is irrational and arbitrate.
The reservation based on such classification is constitutionally invalid.
286 Before we conclude, a reference to Sukhvindkr Kaur vs State of Himachal Pradesh & Ors.(1) may be made.
In that case the High Court upheld reservation of 12 seats for candidates who have passed matriculation or Higher Secondary examination from schools located in the rural areas.
The aforementioned reservation was upheld by merely observing that it does not appear to be unreasonable inasmuch as the children in the rural areas who usually attend such schools are socially, economically and educationally poor and they cannot compete with the children of their age group coming from the urban area.
The judgment does not refer to the material on which the finding was based that the ' children attending the schools in rural areas cannot compete with children of the same age group coming from the urban areas.
That apart the situation in that case was that the students took education upto the Higher Secondary examination in the schools situated in the rural areas and had thereafter straightaway to compete for entrance to the medical college with students coming from urban areas.
Such is not the situation before us.
As pointed out earlier, in the instant case, the students in whose favour the reservation is made took education only upto the 8th standard in common rural school and for the last 4 years they were on par in every respect with students coming from urban areas.
Therefore, this decision is of no assistance.
These were the reasons which weighed with us in allowing the writ petitions.
S.R. Petitions allowed.

dataset_name: IN-Abs

summary:
The third respondent Maharshi Dayanand University, Rohtak issued a prospectus on June 12, 1982, inviting applications for appearing at an Entrance Test for selecting candidates for admission to M.B.B.S./B.D.S. course 1982.
In this prospectus, besides reservation for other candidates, 25 seats were shown as reserved for "Rural Areas" and further clarifying the term as for deciding the eligibility of a candidate from "Rural Areas" the following criterion will be observed; a candidate must have received education from Class I to Class 8 and passed 8th Class examination from any Rural School situated in any village not having any Municipality or notified area or Town Area Committee".
The petitioners, therefore, challenged only the reservation of these 25 seats for candidates coming from the Rural Areas as being violative of Articles 14, 15 (4) and 29 (2) of the Constitution inasmuch as (1) the classification is arbitrary, unintelligible and unrelated to the objects sought to be achieved and not saved by Articles 15 (4) and (ii); to classify candidates on the basis of their education in a school in Rural Area and Urban Area is international in as much as before seeking admission to the Medical Faculty even the student coming from rural areas and having been educated in common rural school from 1st to 8th standard would have taken further education for a period of 4 years before seeking admission to the medical college and that even in respect of the earlier education from 1st to 8th standard in both the cases, there was identical syllabus and examination evaluation prescribed by a common authority Allowing the petitions, the Court ^ HELD: 1.
It is well settled that Article 14 forbids class legislation but 273 permits reasonable classification in the matter of legislation.
In order to sustain the classification permissible under Article 14, it has to satisfy the twin tests: (1) that classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the proup and (2) the differentia must have a rational relation to the object sought to be achieved by the impugned provision.
[278H; 279A B] 2:1.
Classification based on students coming from common rural schools meaning thereby educated upto 1st to 8th standard in common rural schools vis a vis students educated in urban schools from 1st to 8th standard would not provide intelligible differentia for founding a classification thereon.
The classification in such a situation will be wholly arbitrary and irrational and therefore the reservation based on such a classification would be constitutionally invalid.
The knowledge acquired in the years spent from class 1 to class 8th is of a general nature exposing the student to reading, writing, understanding simple Arithmetics, General Knowledge of History, Geography and introductory Mathematics.
The introductory knowledge of these subjects could hardly be said to equip a student for admission to medical college.
The education imparted in class IX and X is little more than introductory.
In these classes, the student is being prepared for deeper study.
The selection of specialised subjects has to be made in classes XI and XII and in respect of education in classes IX to XII, all students being educated in all schools are similarly situated, similarly circumstanced and similarly placed with no differentiation.
The earlier handicap of education in classes I to VIII, if there be any, becomes wholly irrelevant and of no consequence and therefore, cannot provide an intelligible differentia which distinguishes persons say students seeking admission being grouped together as having been educated in common rural schools from those left out namely the rest.
[282F; C E] Arti Sapru vs State of Jammu and Kahmir & Ors., ; , followed.
Pradeep Tandon 's case followed.
Amar Bir Singh & Ors.
vs Maharishi Dayanand University, Rohtak & Ors.
ILR Punjab & Haryana [1980] 2 493, overruled.
The classification is not founded on intelligible differentia and at any rate, it has no rational nexus to the object sought to be achieved.
It does not take into account the following: (i) in order to take advantage of the reservation, students from nearby urban areas can join any rural school on the periphery agglomeration; (ii) All rural schools without an exception cannot be condemned as ill house, ill staffed and ill equipped.
Agriculture in Haryana has been a very profitable pursuit and standard of life of average farmer in rural area has gone up compared to middle class and industrial worker and the slum dwellers whose children will attend as a necessity urban schools.
And yet the better placed will enjoy reservation; (iii) The knowledge acquired by the students while taking instructions in class I to VIII has hardly any relevance to his being equipped for taking the test for entrance to 274 the Medical College.
The real challenge would come in standard XI and XII.
In this behalf all students those coming from any rural schools and urban school are similarly placed and similarly situated and yet by a reference to a past event wholly unrelated to the objects sought to be achieved, they are artificially divided; and (iv) There is no guarantee save a wishful thinking that the candidates classified as coming from rural areas that is with education from class 1 to VIII or otherwise would return to rural areas after the M.B.B.S. degree.
[285H; 284G; 285C D] Sukhvinder Kaur vs State of Himachal Pradesh & Ors., A.I.R. 1974 HP 35, distinguished.