Gujarat High Court
Patel Pinaben Nanjibhai vs State Of Gujarat on 5 August, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7469 of 2025
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 7469 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
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PATEL PINABEN NANJIBHAI & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR GAUTAM JOSHI, LD. SR. ADV. with MR MUNJAAL M BHATT, MS
KHUSHI MEHTA, MR MEHUL SHARMA(8283) for the Petitioner(s) No.
1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115
,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,131,
132,133,134,135,136,137,138,139,14,140,141,142,143,144,145,15,16,17,18,
19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,
42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,6
5,66,67,68,69,7,70,71,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,
89,9,90,91,92,93,94,95,96,97,98,99
MR ADITYA PATHAK, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 05/08/2025
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr.Gautam Joshi
with learned Advocate Mr.Munjal Bhatt, learned Advocate
Ms.Khushi Mehta and learned Advocate Mr.Mehul Sharma
appearing on behalf of the petitioner and learned Assistant
Government Pleader Mr.Aditya Pathak appearing on behalf of
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respondent - State.
2. At the outset, it requires to be stated that the
petitioners who are possessing bachelors degree in Civil
Engineering (B.E. - B.Tech. in Civil Engineering) (hereinafter
referred to as the 'degree holders') have sought to assail a
notification by the respondent no.1 department dated
22.10.2024 more particularly insofar as the notification
amends the recruitment rules for the post of Additional
Assistant Engineer (Civil), Class-III Recruitment Rules, 2024
to the extent of excluding persons having bachelors degree in
Civil Engineering from applying.
3. A civil application has been preferred by the
applicants who are holding diploma certificate in Civil
Engineering (hereinafter referred to as the 'diploma holders')
i.e. the exclusive qualification for applying to the post in
question, for being joined as parties. Since the main petition
had been taken up for final hearing, the civil application was
placed along with the main matter and the learned Advocate
for the applicants were permitted to make submissions
opposing the petition.
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3.1. Since it appears that the applicants of the civil
application would be prejudiced if the prayers made in the
writ petition are granted, more particularly, since an
exclusion in favour of the diploma holders in Civil Engineering
i.e. the applicants of the civil application and such similarly
situated persons is under challenge and any order setting
aside the exclusion would prejudice the interest of the
applicants, therefore, the application deserves consideration
more particularly since the applicants are proper and
necessary parties and therefore, the civil application is
treated as allowed.
4. Issue Rule returnable forthwith. Learned Advocates
waive service of rule on respective respondents.
5. As noticed hereinabove, with the consent of
parties, the petition is taken up for final hearing.
6. The petitioners have sought for the following
prayers:-
"(a) Issue a writ of mandamus or any other writ,
order or direction, quashing and setting aside the
Notification No. G/NJ/2024-688/NWRWSKD/MRT/e-
file/13/2023/10401/Section E5 dated 22.10.2024
issued by Respondent No.1 (Annexure-A);
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(b) Issue a writ of mandamus or any other writ,
order or direction, holding and declaring that the
Petitioners being holders of Bachelor's Degree in
Civil Engineering are eligible to participate in the
Advertisement No. 303/2025-26 dated 06.05.2025;
(c) Pending admission, hearing and final disposal
of the present petition, this Hon'ble Court may be
pleased to direct Respondent No.2 to permit the
Petitioners to submit online / offline applications in
pursuance of the Advertisement No. 303/2025-26
dated 06.05.2025 and to consider the same for
further recruitment process;
(d) Issue ad-interim ex-parte relief in terms of
Para (c) hereinabove;
(e) Grant such other and further relief(s) as this
Hon'ble Court deems fit in the facts and
circumstances of the case."
7. As noticed hereinabove, the petitioners challenge
amendment of the Additional Assistant Engineer (Civil), Class-
III Recruitment Rules, 2024 more particularly whereby a
proviso has been introduced in the recruitment rules which
excludes candidates holding bachelors degree in Civil
Engineering as being ineligible to apply for the post in
question. It appears that originally, the respondent no.1
department had, vide notification dated 02.09.2015 notified
recruitment rules for the post of Additional Assistant Engineer
(Civil), Class-III in the subordinate service of the Narmada,
Water Resources, Water Supply & Kalpsar Department. The
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relevant qualification was a diploma in engineering (civil)
obtained from a recognized institution etc. It appears that
thereafter, pursuant to certain litigations in the High Court, it
appeared to the Government that though the qualification was
of having a diploma in engineering, since there was no
specific exclusion of degree holders more particularly in view
of observations of the Hon'ble Supreme Court in case of Jyoti
K. K. vs. Kerala Public Service Commission, reported in 2010
(15) SCC 596 vide decision taken in a meeting under the
Chairmanship of the Chief Secretary, State of Gujarat
resolved to bring an exclusion clause. It is in pursuance to
such a meeting that the State had notified amendment of the
recruitment rules vide notification dated 22.10.2024,
aggrieved by which, the petitioners have approached this
Court.
8. Heard learned Senior Advocate Mr.Gautam Joshi
who would take this Court to the impugned amendment as
well as advertisement issued by the Gujarat Subordinate
Selection Board pursuant to the amendment dated 06.05.2025
more particularly whereby the amended proviso has been
incorporated in the educational qualification requirement.
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8.1. Learned Senior Advocate would thereafter refer to
a decision of a learned Coordinate Bench of this Court dated
13.12.2022 in Special Civil Application No.459/2018 whereby
diploma holders had sought to question recruitment process
to the post of Additional Assistant Engineer (Civil), Class-III in
Panchayat Services inter alia on the ground that though the
recruitment rules required that educational qualification to be
held by a candidate was of possessing diploma in civil
engineering or an equivalent qualification, yet, the recruiting
authorities had permitted candidates having degree in civil
engineering to participate and therefore, the selection list
insofar as the degree holders, was requested to be set aside.
8.2. Learned Senior Advocate would submit that though
the selection body i.e. the Gujarat Panchayat Service
Selection Board had taken a stand that since the impugned
rule prescribes diploma in civil engineering as being the
required qualification and since there was no specific
exclusions of persons having degree in civil engineering or
any other equivalent qualification, they could not be deemed
to be ineligible. It is submitted that the learned Coordinate
Bench, considering the submissions made by all the parties,
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more particularly, referring to decision of the Hon'ble
Supreme Court in case of Jyoti K. K. (supra) had rejected the
said writ petition.
8.3. Learned Senior Advocate would submit that it is
after the said decision of the learned Coordinate Bench of this
Court, which has as yet not been interfered in appeal, that the
State had brought about the impugned amendment. It is
submitted that the learned Coordinate Bench had inter alia
held that the equivalence as mentioned in the advertisement
would include persons having equivalent qualification
including a higher qualification which presupposed the
acquisition of a lower qualification. Learned Senior Advocate
would submit that the exclusion of degree holders is
manifestly arbitrary since the minutes of the meeting relied
upon by the State only offers a justification that the diploma
holders are better suited, is unsupported by any cogent
reasoning or data. It is further submitted that the exclusion
policy results in merit being compromised since more
meritorious candidates having a degree in engineering would
be excluded from participating in the selection process.
8.4. Learned Senior Advocate would further submit that
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since the present amendment is in the nature of a subordinate
legislation, the same could be interfered with if it is manifestly
arbitrary and whereas, observations of the Hon'ble Supreme
Court in case of Association For Democratic Reforms vs.
Union of India, reported in 2024 (5) SCC 1 and in case of
Shayara Bano vs. Union of India and Ors., reported in 2017 (9)
SCC 1 are being relied upon.
8.5. Learned Senior Advocate would submit that the
exclusion is without any intelligible differentia and lacks a
rational nexus to be object sought to be achieved and thus, is
violative of Article 14. It is submitted that recruitment rules
should aim to attract the best possible talent and create a
level playing field for all qualified aspirants. It is further
submitted that the impugned rules failed to satisfy the
adequate determining principles. It is further submitted that
since degree holders possess the higher qualification and
whereas, since their inclusion would ensure healthy
competition, therefore, the exclusion is arbitrary.
8.6. Learned Senior Advocate would rely upon the
following judgments:-
i. Association For Democratic Reforms vs. Union of India,
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reported in 2024 (5) SCC 1
ii. Shayara Bano vs. Union of India and Ors., reported in
2017 (9) SCC 1
iii. State of Jammu & Kashmir vs. Triloki Nath Khosha and
Ors., reported in 1974 (1) SCC 19
iv. State of Assam and Ors. vs. Arabinda Rabha and Ors.,
reported in 2025 SCC OnLine SC 523
v. Khalsa University and Anr. vs. The State of Punjab and
Anr., reported in 2024 SCC OnLine 2697
8.7. Learned Senior Advocate would submit that
without prejudice to the above submissions, since it appears
that attrition may have been one of the reasons which may
have weighed with the State Authorities, therefore, the
petitioners have already filed an additional affidavit
undertaking that they would not resign post appointment to
address the concern of the State.
8.8. Thus submitting, learned Senior Advocate would
request this Court to quash the impugned notification and
would submit that consequently, the petitioners may be
permitted to participate in the selection process as advertised
by the Gujarat Subordinate Service Selection Board i.e.
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respondent no.2 herein vide advertisement dated 06.05.2025.
9. The present petition is vehemently resisted by
learned Assistant Government Pleader Mr.Aditya Pathak. It is
submitted by learned AGP that the decision impugned has
been arrived at by the Government after due deliberation. It is
submitted by learned AGP that originally, a meeting had been
held on 03.01.2022 under the Chairmanship of the Chief
Secretary, State of Gujarat to consider amending the
recruitment rules in Panchayat service for the post of
Additional Assistant Engineer (Civil), Class-III and whereas, it
was discussed in the said meeting as regards Polytechnic
colleges throughout the State imparting education in the
course of diploma in civil engineering and also as regards
limited avenues available for persons having the said
qualification. It is submitted that based on the reasons
mentioned in the minutes, the Committee had opined that the
recruitment rules are not required to be modified. It is
submitted that, later on, a meeting had been held under the
Chairmanship of the Chief Secretary for amending the rules
for the post in question.
9.1. Learned AGP would submit that minutes of the
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meeting would reveal that the Committee was of the opinion
that candidates having diploma in civil engineering were
better suitable for the post in question than the candidates
having the qualification of degree in civil engineering.
Learned AGP would submit that the rational and nexus
considering the functions and duties of the said post, could
not be said to be illegal or illogical. Learned AGP would
submit that while the petitioners have sought to base their
claim on the equivalence, the respondent no.1 department
had issued a further resolution clarifying the equivalence as
found in the recruitment rules. Learned AGP would submit
that the resolution dated 24.10.2024 states a list of sixteen
diplomas which are to be treated as equivalent to diploma in
civil engineering. Learned AGP would submit that since the
equivalence has been specifically laid down, it would not be
open for the petitioners to now contend that the term
equivalence would also include degree or a higher
qualification.
9.2. Learned AGP would, in support of his submissions,
refer to the following decisions:-
i. Decisions of the Hon'ble Supreme Court in case of Jyoti
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K.K. (supra)
ii. Decision in case of Zahoor Ahmad Rather vs. Sheikh
Imtiyaz Ahmad, reported in 2019 (2) SCC 404
iii. Decision of the Hon'ble Supreme Court in case of
Maharashtra Public Service Commission vs. Sandeep
Shriram Warade and others, reported in 2019 (6) SCC
iv. Decision in case of P.U.Joshi vs. Accountant General,
Ahmedabad, reported in 2003 (2) SCC 632
10. Learned Advocate Mr.Hriday Buch with
learned Advocate Mr.D.M.Devnani on behalf of the private
respondents would submit that degree and diploma are not
similar, inasmuch as, they are not in the same hierarchy.
Learned Advocate would submit that a diploma course
could be pursued after 10 th standard or 12th standard,
whereas after 10th standard a diploma is a 4 year course
and after 12th standard diploma course is a 2 year course. It
is submitted that as against the same, a degree course
after 12th standard is a 4 year course. It is further
submitted that a diploma holder cannot seek lateral entry
in the 3rd year of the degree course. It is submitted that
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while there may be common branches such as engineering,
yet, that by itself would not mean that degree is a superior
qualification to diploma in the same vertical hierarchy.
10.1. Learned Advocate would submit that having
regard to difference between degree holders and diploma
holders, they could not be treated as equals and whereas, it
is submitted that it is a well settled proposition that Article
14 of the Constitution of India could not be relied upon to
claim that unequals should be treated as equals, rather,
Article 14 of the Constitution of India provides that equals
should not be treated unequals. Learned advocate would
submit that as such, the decision relied upon by the
petitioners of Jyoti K. K. (supra) would not be applicable as
had been explained by the decision of the Hon'ble Division
Bench of this Court in case of Bharatkumar Babubhai
Parmar vs. State of Gujarat rendered in Letters Patent
Appeal No.705/2023.
10.2. Submitting as such, learned advocate would
request that this Court may not interfere in the impugned
notification.
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11. Heard learned Advocates on behalf of the
respective parties and perused the documents on record. The
issue which falls for consideration of this Court is whether the
impugned notification whereby in the recruitment process for
Additional Assistant Engineer (Civil), Class-III with the
respondent department, whereby holders of bachelor degree
in Civil Engineering have been excluded, is required to be
interfered with or not.
11.1. The challenge to the impugned notification has
been on two grounds:-
(i) as being violative of Article 14 of the Constitution on India
since the amendment/subordinate legislation is manifestly
arbitrary; and
(ii) exclusion not based on an intelligible differentia without
having any nexus with the object sought to be achieved.
12. At the first instance, before addressing the
submissions made by learned advocates for the parties, this
Court seeks to rely upon decision of the Hon'ble Supreme
Court in case of State of Tamil Nadu and Anr. vs. P.
Krishnamurthy and Ors., reported on 2006 (4) SCC 517.
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Paragraph no.15 being relevant for the present purpose, is
reproduced hereinbelow for benefit:-
"15. There is a presumption in favour of
constitutionality or validity of a sub-ordinate
Legislation and the burden is upon him who attacks it
to show that it is invalid. It is also well recognized
that a sub-ordinate legislation can be challenged
under any of the following grounds :-
a) Lack of legislative competence to make
the sub-ordinate legislation.
b) Violation of Fundamental Rights
guaranteed under the Constitution of India.
c) Violation of any provision of the
Constitution of India.
d) Failure to conform to the Statute under
which it is made or exceeding the limits of
authority conferred by the enabling Act.
e) Repugnancy to the laws of the land, that
is, any enactment .
f) Manifest arbitrariness/unreasonableness
(to an extent where court might well say that
Legislature never intended to give authority
to make such Rules).
The court considering the validity of a sub-ordinate
Legislation, will have to consider the nature, object
and scheme of the enabling Act, and also the area
over which power has been delegated under the Act
and then decide whether the subordinate Legislation
conforms to the parent Statute. Where a Rule is
directly inconsistent with a mandatory provision of
the Statute, then, of course, the task of the court is
simple and easy. But where the contention is that the
inconsistency or non- conformity of the Rule is not
with reference to any specific provision of the
enabling Act, but with the object and scheme of the
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Parent Act, the court should proceed with caution
before declaring invalidity."
12.1. The Hon'ble Supreme Court in the above quoted
decision has inter alia laid down that there is a presumption of
constitutionality or validity in favour of a subordinate
legislation and it is for the person who seeks to question the
same to make out a case that the subordinate legislation is
invalid. While, the Hon'ble Supreme Court has reiterated the
grounds on which a subordinate legislation could be
challenged, it would appear that in the instant case, the
primary challenge is on the ground of violation of Article 14 of
the Constitution of India alleging that the subordinate
legislation is manifestly arbitrary. The Hon'ble Supreme Court
has further laid down that the Court considering the challenge
to validity of subordinate legislation is required to consider
the nature, object and scheme of the enabling act and also the
area over which the power has been delegated under the Act
and decide whether the subordinate legislation confirms the
parent statute or not.
12.2. Keeping in mind the above principles, this Court
would examine challenge of the petitioners to the impugned
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notification i.e. the subordinate legislation in question.
13. At the outset, before examining validity of the sub-
ordinate legislation, it would be appropriate to examine the
principle statute i.e. the recruitment rules itself from the
perspective of whether the subordinate legislation confirmed
to the parent statute. Rule 3(b)(i) of the Additional Assistant
Engineer (Civil), Class-III Recruitment Rules along with the
amended provision which is highlighted in bold letters is
reproduced herein below for benefit:-
"(i) possess a diploma in Civil Engineering obtained
from Technical Examination Board or any of the
Universities or institutions established or
incorporated by or under the Central or a State Act in
India; or any other educational institutions
recognised as such or declared as deemed to be a
university under section 3 of the University Grants
Commission Act, 1956; or possess an equivalent
qualification recognised by the Government:
Provided that the candidate holding
bachelor's degree in Civil Engineering shall not
be eligible to apply."
13.1. Perusal of the provision reveals that from the
inception of the rule, the qualification required, as mentioned
therein, was a diploma in civil engineering from a recognized
institution. The later part of the rule stated about the
equivalent qualification and whereas, what is noticeable on
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the face of the rule is the fact that originally, the State wanted
only persons with diploma apply for selection. It is later, the
equivalent criteria had been incorporated by the learned
Coordinate Bench relying upon decision of the Hon'ble
Supreme Court in case of Jyoti K. K. (supra) to mean that the
term would also include higher qualifications which would
automatically presuppose acquisition of the lower
qualification.
13.2. Perusal of the minutes of the meeting referred to
hereinabove more particularly the later minutes dated
10.06.2024 reveals that the State had also taken into
consideration observations of the Hon'ble Supreme Court in
case of Jyoti K. K. (supra) as regards acquisition of higher
qualification presupposing acquisition of lower qualification
and whereas, the Committee had also taken note of the
observations by the Hon'ble Supreme Court that if the State
were of the opinion that only candidates with a particularly
criteria should be eligible to apply, then the rule should have
specifically excluded all other qualifications including higher
qualifications from being the relevant qualification to apply
for selection for the post in question.
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13.3. Reading the qualification criteria as it has existed
before the amendment with the minutes of the Committee, the
object of the impugned notification becomes apparent
inasmuch as since the educational qualification, as found in
the recruitment rules, was a diploma from a recognized
institution and since the equivalence clause had been
interpreted to mean even higher or better qualifications, the
State to ensure that the original object of the rule is fulfilled,
has introduced the impugned exclusion clause.
13.4. At this stage, it would also be worthwhile to refer
to Government Resolution dated 24.10.2024 referred to
hereinabove, incidentally which has not been challenged
whereby the State has even clarified the courses which could
be terms as 'equivalent'. Thus, taking an overall view of the
matter, it would clearly appear that the object of the State
was to ensure that only persons having the qualification of
diploma be eligible to apply. Thus, on an overall perspective,
it would clearly appear that the amendment is in furtherance
of the object of the recruitment rule.
14. Now, this Court will examine the subordinate
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legislation from the view point of the challenge mounted by
the petitioners as enumerated above.
14.1. Insofar as the aspect of being violative of Article
14, as the subordinate legislation is manifestly arbitrary, it
has been contended on behalf of the petitioners that the
exclusion of degree holders is only on account of the prejudice
held by the department against the petitioners on account of
the previous litigation on the similar issues. It is submitted
that there were litigations before this Court hereinbefore
where the interim and final orders have been passed including
a decision by a learned Coordinate Bench dated 13.12.2022 in
Special Civil Application No.459/2018 instituted by the
diploma holders questioning the decision of the State
Authorities to permit degree holders to compete in the
selection for the post of Additional Assistant Engineer (Civil)
albeit in a different department.
14.2. To this Court, it would appear that such a
contention is absolutely baseless. As it appears, the above
mentioned writ petition had been preferred by diploma
holders inter alia contending that degree holders ought not to
be permitted to participate in the selection process. Perusal of
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the said decision also reveals that in the said petition, which
was contested by the Gujarat Panchayat Service Selection
Board and whereas, the stand of the Board which had been
accepted by the learned Coordinate Bench was in favour fo
the present petitioners i.e. the degree holders. It also appears
that the State had not sought to question the said decision
rather it is only the original petitioners who had sought to
question the same.
14.3. Furthermore, from the interim orders which have
been annexed with the present petition, it would appear that
while in a selection for the post of Surveyor, Class-III
undertaken by the respondent no.2 Board, while this Court
had protected the petitioners, it does not appear that the said
decision of this Court had been questioned before a higher
forum by the State. Furthermore, this Court has also noticed
an order dated 07.04.2025 in the writ petition referred to i.e.
Special Civil Application No.20256/2023 whereby the
petitioners i.e. degree holders had sought to withdraw the
petition based upon an affidavit by the Under Secretary,
Revenue Department, State of Gujarat where the degree
holders including the petitioners therein would be permitted
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to be included in the recruitment process and would also be
considered for appointment based upon the same. Again, what
is more interesting is that the State had not only permitted
the degree holders who had approached this Court, rather,
the State had permitted all the degree holders to participate
in the selection process. Thus, it would appear to this Court
that there is no element of the State appearing to be
prejudiced against degree holders.
14.4. It appears that the grievance of the diploma
holders in an earlier round of litigation albeit with regard to a
different department as regards degree holders being
considered for selection in spite of the qualification being of
having a diploma in the concerned subject and whereas, it
appears that the selection Board had taken a stand against
the diploma holders. Again, in a later litigation where the
degree holders had raised a grievance that they were not
being permitted to participate in the selection process, the
State at a later stage, had permitted the degree holders to
participate including those who were not litigants before this
Court. Furthermore, while it appears that the State has relied
upon minutes of the meeting dated 03.01.2022 and
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10.06.2024 whereby a decision had been taken to exclude the
degree holders, yet, even in the said minutes, there does not
appear to be any element of prejudice involved. Thus, the
ground that the exclusion was on account of the
department/State being prejudiced against the degree
holders, does not appear to be backed by any material, rather,
as noticed, the position seems to be converse.
14.5. It has been further contended by learned Counsel
for the petitioners that the learned Coordinate Bench vide
decision in Special Civil Application No.459/2018 had
concluded that the terminology 'or equivalent' as appearing in
the recruitment rules has been held to include degree holders.
It is submitted on behalf of the petitioners that since the
exclusion is contrary to the law settled by this Court,
therefore also, the same is arbitrary. It appears as noticed
hereinabove that the writ petition being Special Civil
Application No.459/2018 had been preferred by a group of
diploma holders who had questioned the action on the part of
the Gujarat State Panchayat Services Selection Board of
permitted the degree holders to appear in the selection
process. Learned Coordinate Bench, relying upon decision of
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the Hon'ble Apex Court in case of Chandrakala Trivedi vs.
State of Rajasthan and Ors., reported in 2012 (3) SCC 129,
had inter alia observed that the word 'equivalent' should be
given a reasonable meaning and flexibility since there is a
difference between the word 'equivalent' and 'exact'. It has
been held by the learned Coordinate Bench that when rules
specifically provide for any equivalent educational
qualification, then a person having diploma, as in the present
recruitment, or any other equivalent qualification may be
permitted to take part.
14.6. As a matter of fact, after having considered the law
laid down by the Hon'ble Supreme Court in case of
Chandrakala Trivedi (supra), the learned Coordinate Bench
had relied upon observations of the Hon'ble Supreme Court in
case of Jyoti K. K. (supra). It would appear that after having
analyzed the law laid down by the Hon'ble Supreme Court, the
learned Coordinate Bench had clearly held that while a higher
qualification presupposes acquisition of a lower qualification
and therefore, a higher qualification could be considered as a
relevant qualification for the post in question. The learned
Coordinate Bench further observed that if in the event the
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Government was of the opinion that only diploma holders
should be permitted to appear in the selection process, but
not those who possess higher qualification, then the rules
should have excluded candidates possessing higher
qualification or there should have been a specific exclusion as
regards degree holders not being eligible to apply.
14.7. Observations of the learned Coordinate Bench in
Special Civil Application No.459/2018 at paragraph 7.7
and 7.8 being relevant for the present purpose, are
reproduced hereinbelow for benefit:-
"7.7 Now in light of aforesaid observations made by
the Hon'ble Supreme Court, the view taken by
Hon'ble Supreme Court in case of Jyoti K.K. vs.
Kerala Public Service Commission (supra) is required
to be considered. In case of Jyoti K.K. vs. Kerala
Public Service Commission reported in (2010) 15 SCC
in para:7 to 10, the Hon'ble Supreme Court observed
as under:
"7. On the question that the said rules are
applicable to the selection posts in the board,
there is no dispute. The High Court after setting
out the contentions noticed that there were no
executive orders in relation to equivalent
qualifications prescribed by the government.
The High Court stated that the position is that,
the qualifications possessed by the appellants do
not presuppose the acquisition of prescribed
lower qualifications and when qualification has
been prescribed for a post, the same cannot be
diluted and persons not possessing those
qualifications cannot be permitted to be eligible.
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It was noticed that all those who had similar or
even better qualifications than those candidates
would not have applied for the post because
they did not possess the qualifications
mentioned in the advertisement and such a
position would result in "fraud on public to
appoint persons with inferior qualifications, in
such circumstances, unless it is clearly stated
that qualifications are relaxable". On that basis,
the High Court dismissed the petitions filed by
the appellants. The contentions urged before the
High Court are reiterated on either side before
us.
8. Rule 10 (a) (ii) reads as follows:
"Notwithstanding anything contained in these
rules or in the special rules, the qualifications
recognised by executive orders or standing
orders of government as equivalent to a
qualification specified for a post in the special
rules and such of those higher qualifications
which presuppose the acquisition of the lower
qualification prescribed for the post shall also be
sufficient for the post."
9. It is no doubt true, as stated by the High
Court that when a qualification has been set out
under the relevant rules, the same cannot be in
any manner whittled down and a different
qualification cannot be adopted. The High Court
is also justified in stating that the higher
qualification must clearly indicate or presuppose
the acquisition of the lower qualification
prescribed for that post in order to attract that
part of the rule to the effect that such of those
higher qualifications which presuppose the
acquisition of the lower qualifications prescribed
for the post shall also be sufficient for the post.
If a person has acquired higher qualifications in
the same faculty, such qualification can certainly
be stated to presuppose the acquisition of the
lower qualifications prescribed for the post. In
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this case it may not be necessary to seek far.
Under the relevant rules, for the post of
assistant engineer, degree in electrical
engineering of Kerala University or other
equivalent qualification recognised or equivalent
thereto has been prescribed. For a higher post
when a direct recruitment has to be held, the
qualification that has to be obtained, obviously
gives an indication that such qualification is
definitely higher qualification than what is
prescribed for the lower post, namely, the post
of sub-engineer. In that view of the matter the
qualification of degree in electrical engineering
presupposes the acquisition of the lower
qualification of diploma in that subject
prescribed for the post, shall be considered to
be sufficient for that post. In the event the
government is of the view that only diploma
holders should have applied to post of sub-
engineers but not all those who possess higher
qualifications, either this rule should have
excluded in respect of candidates who possess
higher qualifications or the position should have
been made clear that degree holder shall not be
eligible to apply for such post. When that
position is not clear but on the other hand rules
do not disqualify per se the holders of higher
qualifications in the same faculty, it becomes
clear that the rule could be understood in an
appropriate manner as stated above. In that
view of the matter the order of the High Court
cannot be sustained. In this case we are not
concerned with the question whether all those
who possess such qualifications could have
applied or not. When statutory rules have been
published and those rules are applicable, it
presupposes that everyone concerned with such
appointments will be aware of such rules or
make himself aware of the rules before making
appropriate applications. The High Court,
therefore, is not justified in holding that
recruitment of appellants would amount to fraud
on the public.
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[Emphasis supplied]
10. However, we must notice one aspect of the
matter. The diploma holders who had been
selected by the Public Service Commission have
already been appointed and, therefore, it would
not be appropriate for us to disturb those
appointments. They shall continue in such
appointments. Such of those eligible degree
holders who fulfil the qualifications referred to
above and found suitable to be appointed shall
be appointed taking note of the vacancies which
are available within a period of three months
from the date of receipt of this order."
7.8 While making aforesaid observations, the Hon'ble
Supreme Court categorically observed that when
qualification has been set out under relevant Rules
the same cannot be, in any manner, whittled down
and different qualification cannot be adopted. A
higher qualification presupposes the acquisition of
lower qualification and therefore higher qualification
shall be considered to be sufficient for the post. The
Hon'ble Supreme Court also categorically observed in
the aforesaid judgment that in event the Government
is of the view that only diploma holders should have
applied for the post of Sub-engineers but not all
those, who possess higher qualification, either these
Rules should have excluded in respect of candidates
who possess higher qualification or position should
have been made clear that degree holders shall not
eligible to apply for such post. The aforesaid
observations makes it crystal clear that in absence of
there being any exclusion clause in advertisement or
in the Rules,whereby any specific class of people,
who are degree holders in the instant case, are not
barred to participate in the selection process, the
submission made by learned advocate Mr.Mishra that
Rules provide only for diploma holders to apply for
the post of Additional Assistant Engineer cannot be
accepted."
[Emphasis supplied]
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14.8. It would thus appear that while the learned
Coordinate Bench had accepted the argument on behalf of the
opponent Panchayat Service Selection Board as regards the
equivalence, yet, learned Coordinate Bench had relying upon
decision of the Hon'ble Supreme Court in case of Jyoti K. K.
also come to a conclusion that the State was empowered to
exclude a particular category of persons if such exclusion was
found in the extant rules. It would thus appear that the
observations of the learned Coordinate Bench would not come
to the aid of the petitioners.
14.9. Furthermore, insofar as the aspect of equivalence
is concerned, it would appear that the respondent no.1 -
department has issued a resolution dated 24.10.2024 whereby
the aspect of equivalence is clarified. It is mentioned in the
resolution that the State Government was considering the
aspect of laying down the qualifications which could be
treated as equivalent to diploma in civil engineering i.e. the
primary qualification for recruitment to the post of Additional
Assistant Engineer (Civil), Class-III with the respondent
department. The State, after appropriate consideration, has
set out a list of sixteen different diplomas which are to be
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considered as equivalent to the qualification of diploma in civil
engineering. The said resolution had been tendered by way of
an affidavit-in-reply and whereas, it would appear that the
same had not been challenged.
14.10. It would thus appear to this Court that the State
Government, having determined and having listed sixteen
different diplomas, which could be treated as equivalent to
diploma in civil engineering, could be understood to mean
that an aspirant to the post in question should either have the
principle qualification or being a diploma in civil engineering
or should have any of the sixteen diplomas which are
mentioned in the resolution and whereas, no other
qualification would be treated as equivalent for the purpose of
selection to the post in question. Thus, to this Court, it would
appear that the whole argument on the basis of interpretation
of the term 'equivalent' by the learned Coordinate Bench
based upon the decision of the Hon'ble Supreme Court in case
of Chandrakala Trivedi (supra) would not advance the cause
of the petitioners.
14.11. It would further appear that the petitioners in
support of their submissions, had relied upon observations of
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the Hon'ble Apex Court in case of Association for
Democratic Reformers (Electoral Bond Scheme) (supra)
and whereas, paragraph no. 189 of the said decision has been
relied upon by the learned Counsel for the petitioners, which
is quoted hereinbelow for benefit:-
"189. Shayara Bano (supra) clarified In Re Special
Reference No. 1 of 2012 (supra) by holding that a
finding of manifest arbitrariness is in itself a
constitutional infirmity and, therefore, a ground for
invalidating legislation for the violation of Article 14.
Moreover, it was held that there is no rational
distinction between subordinate legislation and
plenary legislation for the purposes of Article 14.
Accordingly, the test of manifest arbitrariness laid
down by this Court in Indian Express Newspapers
(supra) in the context of subordinate legislation was
also held to be applicable to plenary legislation. In
conclusion, this Court held that manifest
arbitrariness "must be something done by the
legislature capriciously, irrationally and/or without
adequate determining principle." It was further held
that a legislation which is excessive and
disproportionate would also be manifestly arbitrary.
The doctrine of manifest arbitrariness has been
subsequently reiterated by this Court in numerous
other judgments."
14.12. While the observations of the Hon'ble Supreme
Court insofar as a subordinate legislation being questioned on
the ground that it is violative of Article 14 on the ground of
manifest arbitrariness is being examined, the later
observations quoted hereinabove from the decision of Sharma
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Transport vs. State of A.P., reported in 2002 (2) SCC 188 is an
issue which requires consideration. The aspect here is that
the petitioners contend that the amendment in the
recruitment rules is manifestly arbitrary since the same has
been done without adequate determining principle, non-
rational and not done, according to reason. It has been
contended that the minutes of the meeting of the Committee
which is relied upon by the respondent - State is bereft of any
adequate determining principle and being unreasonable.
14.13. At this stage, it would be relevant to mention that
the State through affidavit-in-reply has placed on record
minutes of two different meetings which consisted of amongst
others the Chief Secretary, State of Gujarat, the Additional
Chief Secretary, General Administration Department, the
Secretary, Road and Building Department and the Secretary,
Narmada, Water Resources, Water Supply and Kalpsar
Department as well as the Additional Chief Secretary,
Panchayat Rural Housing and Rural Development
Department.
14.14. It would appear that in the first meeting, the issue
in consideration was whether there is requirement of
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amending the recruitment rules for the post of Additional
Assistant Engineer (Civil) with the Panchayat Department to
include the qualification of bachelors or masters degree in
civil engineering, more particularly, along with the existing
qualification of diploma in civil engineering.
14.15. The Committee had considered the following
aspects:-
i. The existence of large number of Polytechnic Colleges in
the State which are imparting education in the course of
diploma in civil engineering where candidate could take
admission after 10th standard.
ii. For candidates having the qualification of diploma in
civil engineering, the post of Additional Assistant
Engineer (Civil) is the only post where the said
qualification is determined as the requisite qualification.
iii. While amending the recruitment rule to include
graduates and post graduate candidates in the course of
civil engineering would result in more meritorious
candidates being available, but, including such
candidates would result in the candidates having
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diploma in civil engineering being ousted since degree
holders would fare better than the diploma holders in
the competitive examination resulting in aspirants
having qualification of diploma in civil engineering being
rendered unemployed.
iv. The work which is expected of appointees to the post of
Additional Assistant Engineer is of such nature that the
candidates having degree and post graduate degree in
civil engineering look down upon such work more
particularly as being much lowly compare to the
qualification held by the said candidates.
v. The Additional Assistant Engineer (Civil) is the feeder
cadre for Assistant Engineer (Civil), Class-II and
whereas, the recruitment rules stipulate that the
minimum qualification required is of having a degree in
civil engineering.
vi. The Assistant Engineers are given works relating to
State Highway or National Highway i.e. major works
whereas in context of Panchayat, the Additional
Assistant Engineers are given minor works.
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vii. The department holds direct recruitment for the
post of Additional Assistant Engineer, Assistant Engineer
and Deputy Executive Engineer whereas except for
Additional Assistant Engineer (Civil) all other posts carry
a minimum requirement of being a degree holder in civil
engineering.
viii.If degree holders are also included in the selection for
the post in question, at a later stage, having regard to the
qualification held by them, the possibility of such
candidates seeking to be treated as Assistant Engineers
or filing a litigation for such purpose could not be ruled
out.
ix. The Committee has further opined that the degree
holders, in addition to participating in selection for the
post of Assistant Engineer (Civil) and Deputy Executive
Engineer (Civil), also take part in selection conducted by
the State and Central Government where the minimum
qualification is degree in civil engineering and whereas,
candidates also appear for selection in Class-I, II post
conducted by the GPSC or UPSC and it is observed that
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the ratio of attrition among the degree and post
graduate degree holders by joining other departments is
found to be high.
Having regard to such considerations, the
Committee was of the opinion that the request for including
the qualification of the degree or post graduate degree in civil
engineering as a qualification for the post of Additional
Assistant Engineer (Civil) in the Panchayat Department, was
not insisted to.
14.16. The State has also relied upon minutes of the later
meeting more particularly whereby the issue of amending the
recruitment rule for the post of Additional Assistant Engineer
(Civil) with the respondent department was considered. At the
outset, it requires to be noticed that the issue had received
consideration from the highest office i.e. the Office of Hon'ble
the Chief Minister, upon whose instructions, the Committee
had been convened. The Committee consisted of the same
officers holding the position, as in the earlier committee, have
made following considerations:-
i. The Committee had considered that the work profile for
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the post of Additional Assistant Engineer (Civil) i.e. the
duties and responsibilities are more suited to holders of
diploma (civil) as against holders of degree in the same
stream.
ii. The Committee had further considered that this Court
vide decision dated 13.12.2022 had considered a case
where the diploma holders had opposed inclusion of
degree holders in the selection process and whereas, it
is also noticed that this Court had relied upon decision of
the Hon'ble Supreme Court in case of Jyoti K. K. (surpa).
The Committee had relied upon the observations of the
Hon'ble Supreme Court as thus:-
"If a person has acquired higher qualifications
in the same faculty, such qualification can
certainly be stated to presuppose the
acquisition of the lower qualifications
prescribed for the post.
In the event the government is of the view that
only diploma holders should have applied to
post of sub-engineers but not all those who
possess higher qualifications, either this rule
should have excluded in respect of candidates
who possess higher qualifications or the
position should have been made clear that
degree holder shall not be eligible to apply for
such post."
iii. The Committee had thereafter observed that having
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regard to the decision of the Hon'ble Supreme Court, it
would be expedient to incorporate a proviso in the
recruitment rule whereby the degree holders could be
specifically excluded from being eligible to apply.
14.17. From a perusal of the considerations which
weighed with the Committees, as found in the minutes
hereinabove, it would clearly appear to this Court that the
decision was not one without adequate determining principles
or unreasonable or irrational. While the former meeting was
with regard to identical posts in the Panchayat Department,
the later meeting was with regard to the very post. Again, to
this Court, it would appear that the fact that the former
Committee had considered the issue from the perspective of a
different department, would not be available to the petitioners
herein, more particularly, since it would appear that the issue
was one which was being considered by the Government as a
whole and not by a single individual department. The
constituents of the Committee at both the stages also leaves
nothing to doubt that it was the State Government which was
considering the issue at its highest level for the purpose of
framing a policy. The aspects which weighed with the State
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including the fact that the cadre of Additional Assistant
Engineer (Civil) is one of the very limited cadres where
candidates having diploma in civil engineering could apply for
direct selection, large number of colleges in the State of
Gujarat imparting education in the course of diploma in civil
engineering, candidates having graduate and post graduate
degrees in civil engineering being more meritorious would
steal a march over candidates having diploma in civil
engineering resulting in candidates having diploma
engineering being unemployed, the duties and responsibilities
being more suited to diploma holders than degree holders, a
very high rate of attrition on account of the degree holders
leaving the employment upon getting selection in higher posts
etc., to this Court, are the relevant factors which were
required to be taken into consideration by the State and have
been taken into consideration by the State and whereas, it
would not appear that the principles for determining as to
whether the recruitment rules were to be amended or not,
was not adequate.
14.18. While it has been submitted on behalf of the
petitioners that the State is sacrificing merits for making
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posts available for diploma holders and has also taken out
aspect of the healthy competition between the degree holders
and the diploma holders, yet, to this Court, it would appear
that the State is the best judge for determining the
qualifications required for a post in question and whereas, the
State is also required to ensure that it takes into consideration
things from an overall perspective rather than a narrow
perspective.
14.19. To this Court, it would appear that the
consideration that a more qualified candidate would normally
be better suited for a post in question, may not be always a
correct position. As rightly observed by the Committee, since
the nature of work i.e. the duties and responsibilities assigned
to the holder of the post of Additional Assistant Engineer
(Civil) are normally minor works, degree holders and post
graduate degree holders look down upon such works and feel
that it is below their dignity to carry out such works. Such a
consideration could not be treated to be as either
unreasonable or arbitrary. Likewise, the State being alive to
the fact that the posts in question are almost the only post in
which holders of diploma in civil engineering could apply for
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direct recruitment and permitting the degree and post
graduate degree holders to apply for such posts would,
according to the State, not result in healthy competition
rather, it would result in unhealthy competition since the
degree and post graduate degree holders by the dint of their
superior qualifications would still march over the diploma
holders. The State, to this Court, has not committed any
arbitrariness or unreasonableness while taking into account
that there are large number of institutions in the State
imparting education in the course of diploma in civil
engineering and whereas, permitting the degree holders to
compete for the post in question would result in higher
unemployment in the category of diploma holders.
14.20. To this Court, it would appear that the State is
required to act in overall benefit of its citizens and the fact
that the State has deemed it appropriate to ensure that a level
playing field is maintained amongst diploma and degree
holders by noting that degree holders have opportunity of
competing for direct recruitment in the promotional posts to
the post of Additional Assistant Engineer (Civil) i.e. Additional
Engineer and Deputy Executive Engineer, while excluding the
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degree holders from competing for selection to the post of
Additional Assistant Engineer (Civil), is, to this Court,
ensuring fairness and equality in matters of public
employment and by no stretch of imagination could it be said
that the decision taken by the State is manifestly arbitrary,
without adequate determining principles or unreasonable.
14.21. At this stage, this Court seeks to rely upon
observations of the Hon'ble Supreme Court in case of Dr.
Subramanian Swamy vs. Director, Central Bureau of
Investigation and Anr., reported in 2014 (8) SCC 682.
Paragraph no.49 of the said decision being relevant for the
present purpose, is quoted hereinbelow for benefit:-
"49. Where there is challenge to the constitutional
validity of a law enacted by the legislature, the Court
must keep in view that there is always a presumption
of constitutionality of an enactment, and a clear
transgression of constitutional principles must be
shown. The fundamental nature and importance of
the legislative process needs to be recognised by the
Court and due regard and deference must be
accorded to the legislative process. Where the
legislation is sought to be challenged as being
unconstitutional and violative of Article 14 of the
Constitution, the Court must remind itself to the
principles relating to the applicability of Article 14 in
relation to invalidation of legislation. The two
dimensions of Article 14 in its application to
legislation and rendering legislation invalid are now
well recognised and these are: (i) discrimination,
based on an impermissible or invalid classification,
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and (ii) excessive delegation of powers conferment of
uncanalised and unguided powers on the executive,
whether in the form of delegated legislation or by
way of conferment of authority to pass administrative
orders--if such conferment is without any guidance,
control or checks, it is violative of Article 14 of the
Constitution. The Court also needs to be mindful that
a legislation does not become unconstitutional merely
because there is another view or because another
method may be considered to be as good or even
more effective, like any issue of social, or even
economic policy. It is well settled that the courts do
not substitute their views on what the policy is."
[Emphasis supplied]
14.22. The later observations of the Hon'ble Supreme
Court which has been emphasized hereinabove, to this Court,
would be applicable in the fact situation more particularly the
present issue considered from the observations of the Hon'ble
Supreme Court, it could be observed that the amendment
would not become unconstitutional since there is a different
view or a different method which could be applied which
could be or even more effective more particularly since it is a
very settled principle that Courts would not substitute their
views on what policy is.
14.23. To this Court, it would appear that the State having
taken a decision considering the larger canvas, as referred to
hereinabove i.e. large number of colleges imparting education
in the course of diploma in civil engineering, inclusion of
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degree and post graduate degree holders resulting in an
unhealthy competition since degree holders and post graduate
degree holders would still get a march order diploma holders
resulting in lack of employment choices to diploma holders,
the nature of work being more suitable for persons having the
qualification of diploma, high rate of attrition etc. are well
withing the domain of a policy decision by the State and while
it appears to this Court that the said policy is to further social
justice, at the same time, even if a better policy i.e. of
permitting more qualified degree or post graduate degree
holders to compete may be available, but ultimately, it is for
the State to take a final decision on policy issues and unless
the policy is found to be manifestly arbitrary, unreasonable or
without adequate determining principles, which the present
subordinate legislation is not, Courts would normally not
interfere.
14.24. At this stage, this Court further seeks to rely upon
observations of the Hon'ble Supreme Court in case of Zahoor
Ahmad Rather (supra). Paragraph 27 of the said decision
being relevant for the present purpose, is reproduced
hereinbelow for benefit:-
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"27. While prescribing the qualifications for a post,
the State, as employer, may legitimately bear in mind
several features including the nature of the job, the
aptitudes requisite for the efficient discharge of
duties, the functionality of a qualification and the
content of the course of studies which leads up to the
acquisition of a qualification. The state is entrusted
with the authority to assess the needs of its public
services. Exigencies of administration, it is trite law,
fall within the domain of administrative decision
making. The state as a public employer may well take
into account social perspectives that require the
creation of job opportunities across the societal
structure. All these are essentially matters of policy.
Judicial review must tread warily. That is why the
decision in Jyoti KK must be understood in the
context of a specific statutory rule under which the
holding of a higher qualification which presupposes
the acquisition of a lower qualification was
considered to be sufficient for the post. It was in the
context of specific rule that the decision in Jyoti KK
turned. "
14.25. Considered from the perspective of the
observations above, it would appear that the State had, while
prescribing the exclusion clause, taken into consideration the
nature of job, the aptitude required for efficient discharge of
duties and the requirement of creating job opportunities
across societal structures. It is the State which is entrusted
with the authority to assess the needs of its public services
and the exclusion is essentially a matter of public policy and
Courts while reviewing the decision of the State in policy
matters, are required to trend warily.
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14.26. This Court further seeks to rely upon observations
of the Hon'ble Supreme Court in case of Khalsa University
and Anr. (supra) relied upon by learned Counsel for the
petitioners. Paragraph no.62 of the said decision being
relevant for the present purpose, is quoted hereinbelow for
benefit:-
"62. It can thus be seen that in the said case, it
was held that the test of manifest arbitrariness as laid
down by this Court in various judgments would also
apply to invalidate legislation as well as subordinate
legislation under Article 14. It was held that manifest
arbitrariness must be something done by the
legislature capriciously, irrationally and/or without
adequate determining principle. It further goes on to
hold that when something is done which is excessive
and disproportionate, such a legislation would be
manifestly arbitrary. It, in unequivocal terms, held
that arbitrariness in the sense of manifest
arbitrariness would apply to negate legislation under
Article 14 of the Constitution. In para 95, it was
observed that the case of Natural Resources
Allocation, In re, Special Reference No. 1 of 201218,
did not lay down a proposition that legislation can
never be struck down as being arbitrary. This Court,
after referring to all the earlier judgments including
Ajay Hasia and Others v. Khalid Mujib Sehravardi and
Others, stated that legislation can be struck down on
the ground that it is arbitrary under Article 14 of the
Constitution. However, arbitrariness when applied to
legislation cannot be used loosely."
14.27. What is sought to be emphasized by this Court
from the aforesaid observations of the Hon'ble Supreme Court
is that while manifest arbitrariness would be a good ground to
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invalidate a subordinate legislation, yet, arbitrariness when
applied to legislation (or subordinate legislation), cannot be
used loosely. To this Court, it would appear that excluding a
category of persons having a particular qualification from
being eligible to be appointed for the post in question, based
upon adequate determining principles, could not be termed as
manifestly arbitrary and whereas, while the extant of the term
'manifest arbitrariness' is attempted to be extended by the
petitioners, to this Court, such a loose construct could not be
countenanced.
14.28. Having regard to the above discussion, to this
Court, it would appear that the subordinate legislation i.e. the
amendment in the recruitment rule would not fall foul of
Article 14 on the ground of manifest arbitrariness and hence,
issue no.(i) is answered accordingly.
15. Now, coming to the second issue as to whether the
classification or exclusion is based on an intelligible
differentia and the differentia does not have any nexus to the
object sought to be achieved.
15.1. At the outset, it would be apposite to refer to the
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law on this issue as laid down by the Hon'ble Supreme Court
which observation would serve as a guiding light to this Court.
While the petitioners have referred to paragraph no.31 of the
decision of the Hon'ble Supreme Court in case of Triloki
Nath Khosha (supra), to this Court, it would appear that
paragraphs no.31 and 32 both would be relevant for the
present purpose and are reproduced hereinbelow for benefit:-
"31. Classification, however, is fraught with the
danger that it may produce artificial inequalities and
therefore, the right to classify is hedged in with
salient restraints; or else, the guarantee of equality
will be submerged in class legislation masquerading
as laws meant to govern well marked classes
characterized by different and distinct attainments.
Classification, therefore, must be truly founded on
substantial differences which distinguish persons
grouped together from those left out of the group and
such differential attributes must bear a just and
rational relation to the object sought to be achieved.
32. 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 extend to embarking upon a
nice or mathematical evaluation of the basis of
classification, for were such an inquiry permisible 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."
(Emphasis supplied) "
15.2. This Court further seeks to rely upon observations
of the seven-Judge Bench of the Hon'ble Supreme Court in
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Re: The Special Courts Bill, 1978 reported in 1979 (1)
SCC 380. The Hon'ble Supreme Court at paragraph no.74 has
laid down certain propositions and whereas, for the purpose
of the present petition, the propositions no.5, 6, 7, 8, 9 and 11
being relevant for the present purpose, are being reproduced
hereinbelow for benefit:-
"5. By the process of classification, the State has the
power of determining who should be regarded as a
class for purposes of legislation and in relation to a
law enacted on a particular subject. This power, no
doubt, in some degree is likely to produce some
inequality; but if a law deals with the liberties of a
number of well-defined classes, it is not open to the
charge of denial of equal protection on the ground
that it has no application to other persons.
Classification thus means segregation in classes
which have a systematic relation, usually found in
common properties and characteristics. It postulates
a rational basis and does not mean herding together
of certain persons and classes arbitrarily.
6. The law can make and set apart the classes
according to the needs and exigencies of the society
and as suggested by experience. It can recognise
even degree of evil, but the classification should
never be arbitrary, artificial or evasive.
7. The classification must not be arbitrary but must
be rational, that is to say, it must not only be based
on some qualities or characteristics which are to be
found in all the persons grouped together and not in
others who are left out but those qualities or
characteristics must have a reasonable relation to the
object of the legislation. In order to pass the test, two
conditions must be fulfilled, namely, (1) that the
classification must be founded on an intelligible
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differentia which distinguishes those that are
grouped together from others and (2) that differentia
must have a rational relation to the object sought to
be achieved by the Act.
8. The differentia which is the basis of the
classification and the object of the Act are distinct
things and what is necessary is that there must be a
nexus between them. In short, while Article 14
forbids class discrimination by conferring privileges
or imposing liabilities upon persons arbitrarily
selected out of a large number of other persons
similarly situated in relation to the privileges sought
to be conferred or the liabilities proposed to be
imposed, it does not forbid classification for the
purpose of legislation, provided such classification is
not arbitrary in the sense above mentioned.
9. If the legislative policy is clear and definite and as
an effective method of carrying out that policy a
discretion is vested by the statute upon a body of
administrators or officers to make selective
application of the law to certain classes or groups of
persons, the statute itself cannot be condemned as a
piece of discriminatory legislation. In such cases, the
power given to the executive body would import a
duty on it to classify the subject-matter of legislation
in accordance with the objective indicated in the
statute. If the administrative body proceeds to
classify persons or things on a basis which has no
rational relation to the objective of the legislature, its
action can be annulled as offending against the equal
protection clause. On the other hand, if the statute
itself does not disclose a definite policy or objective
and it confers authority on another to make selection
at its pleasure, the statute would be held on the face
of it to be discriminatory, irrespective of the way in
which it is applied.
10. XXX XXX XXX
11. Classification necessarily implies the making of a
distinction or discrimination between persons
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classified and those who are not members of that
class. It is the essence of a classification that upon
the class are cast duties and burdens different from
those resting upon the general public. Indeed, the
very idea of classification is that of inequality, so that
it goes without saying that the mere fact of inequality
in no manner determines the matter of
constitutionality. "
15.3. Lastly, this Court seeks to rely upon observations
of the Hon'ble Supreme Court in case of State of Kerala and
Anr. vs. N.M.Thomas and Ors., reported in 1976 (2) SCC
310. Paragraph no.83 of the said decision being relevant for
the present purpose, is reproduced hereinbelow for benefit:-
"83. A classification is reasonable if it includes all
persons who are similarly situated with respect to the
purpose of the law. In other words, the classification
must be founded on some reasonable ground which
distinguishes persons who are grouped together and
the ground of distinction must have rational relation
to the object sought to be achieved by the rule or
even the rules in question. It is a mistake to assume a
priori that there can be no classification within a
class, say, the Lower Division Clerks. If there are
intelligible differentia which separate a group within
that class from the rest and that differentia have
nexus with the object of classification, I see no
objection to a further classification within the class. It
is no doubt a paradox that though in one sense
classification brings about inequality, it is promotive
of equality if its object is to bring those who share a
common characteristic under a class for differential
treatment for sufficient and justifiable reasons. In this
view, I have no doubt that the principle laid down in
All-India Station Masters' and Assistant Station
Masters' Association v. General Manager, Central
Railway and Others(1), S. G. Jaisinghani v. Union of
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India and Others (supra) and State of Jammu &
Kashmir v. Triloki Nath Khosa & Ors.(2) has no
application here."
15.4. The law laid down by the Hon'ble Supreme Court
as could be discernible from the above decisions is that while
classification is not impermissible, yet, the classification is
required to be rational and not arbitrary. The classification
should clearly be based on qualities or characteristics which
are found in the persons grouped together and not in others
who are left out and whereas, the qualities and characteristics
must have a reasonable relation to the object of the
legislation. The twin test, as laid down by the Hon'ble
Supreme Court, for determining whether a classification is
valid or not is of two class being (i) that the classification must
be based on an intelligible differentia which distinguishes the
persons who are grouped together from those who are not;
and (ii) that the differentia must have a nexus to the object
sought to be achieved.
15.5. Considering the fact situation from the perspective
of the law laid down by the Hon'ble Supreme Court, as
noticed hereinabove, it would appear that the object of the
classification was to ensure that a select group of persons i.e.
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only such persons having diploma in civil engineering or
equivalent diplomas, are eligible to apply. The classification
which is questioned is as regards exclusion of persons other
than diploma holders from competing in the selection process.
To this Court, it would appear that the classification is clearly
based on the intelligible differentia since the State has come
to a conclusion that by permitting persons other than diploma
holders i.e. with comparatively higher qualification i.e. of
having a degree and a post graduate degree in civil
engineering, would lead to shrinking the already limited
avenues available with diploma holders to compete for public
employment. The State has noticed that there being large
number of colleges imparting study in diploma in civil
engineering, permitting degree holders and post graduate
degree holders to steal a march over the diploma holders,
would result in lack of employment opportunities to diploma
holders. The State has also considered that degree and post
graduate degree holders have many other avenues to appear
for direct selection including the next higher post of Assistant
Engineer and even higher post of Deputy Executive Engineer.
The State has also noticed that since degree and post
graduate degree holders have various other avenues to apply
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for selection, the rate of attrition amongst degree holders is
very high. The State has also taken into consideration the fact
that the duties and responsibilities for the post in question are
better suitable for persons having diploma holders.
15.6. To this Court, it would appear that the
classification made between the diploma holders and degree
holders for the purpose of applying for selection to the post in
question, is based on the above intelligible differentia which
distinguishes both the classes. It would also appear that the
intelligible differentia has a reasonable nexus to the object
sought to be achieved. To this Court, it would not appear that
the classification is either discriminatory or based on
impermissible or invalid classification and whereas, it would
appear that the State is well justified in the classification more
particularly having regard to the object the State intends to
achieve.
15.7. At this stage, this Court seeks to rely upon
observations of the Hon'ble Supreme Court in case of Satya
Dev Bhagaur vs. State of Rajasthan, reported in 2022 (5)
SCC 314. Paragraph Nos.16, 17 and 18 of the said decision
being relevant for the present purpose, are reproduced
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hereinbelow for benefit:-
"16. It is trite that the Courts would be slow in
interfering in the policy matters, unless the policy is
found to be palpably discriminatory and arbitrary.
This court would not interfere with the policy
decision when a State is in a position to point out that
there is intelligible differentia in application of policy
and that such intelligible differentia has a nexus with
the object sought to be achieved.
17. This Court in the case of Krishnan Kakkanth vs.
Government of Kerala and others has observed thus:
"36. To ascertain unreasonableness and
arbitrariness in the context of Article 14 of the
Constitution, it is not necessary to enter upon
any exercise for finding out the wisdom in the
policy decision of the State Government. It is
immaterial whether a better or more
comprehensive policy decision could have been
taken. It is equally immaterial if it can be
demonstrated that the policy decision is unwise
and is likely to defeat the purpose for which
such decision has been taken. Unless the policy
decision is demonstrably capricious or arbitrary
and not informed by any reason whatsoever or it
suffers from the vice of discrimination or
infringes any statute or provisions of the
Constitution, the policy decision cannot be
struck down. It should be borne in mind that
except for the limited purpose of testing a public
policy in the context of illegality and
unconstitutionality, courts should avoid
"embarking on uncharted ocean of public
policy"." (1997) 9 SCC 495
18. A three-Judge bench of this Court in Sher Singh
and Others vs. Union of India and Others has
observed thus:
"As a matter of fact the courts would be
slow in interfering with matters of
government policy except where it is shown
that the decision is unfair, mala fide or
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contrary to any statutory directions." "
15.8. Considering the law laid down by the Hon'ble
Supreme Court, it would appear that while the Courts would
slow in interfering in policy matters and unless the policy is
found to be discriminatory and arbitrary, which this Court
does not find in the present issue, there would not be any
interference by the Courts. The Hon'ble Supreme Court has
also held that if the State is in a position to point out that
there is an intelligible differentia in application of the policy
which has a nexus with the object sought to be achieved, this
Court would not interfere and as noticed hereinabove, this
Court is of the considered opinion that there is indeed an
intelligible differentia which has a nexus which sought to be
achieved. Again, it would appear to this Court that the
Hon'ble Supreme Court has laid down that unless a policy is
demonstrably capricious or arbitrary or suffers from the vice
of discrimination or infringes any statute or provisions of the
constitution, the policy cannot be struck down merely because
a better or more comprehensive decision could be taken. As
observed, this Court is of the considered opinion that neither
the policy i.e. the amendment is capricious nor arbitrary nor
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discriminatory. As observed by the Hon'ble Supreme Court,
merely because persons with higher qualification could be
available if the amendment is struck down, is not a reasonable
and permissible view.
15.9. Thus, to this Court, it would clearly appear that the
classification whereby holders of degree and post graduate
degree in civil engineering were excluded from being eligible
to apply for the post in question, was based on an intelligible
differentia and the intelligible differentia had a rational nexus
with the object sought to be achieved. Issue no.(ii) is also
answered accordingly.
16. Having regard to the above discussion, observation
and conclusions, this Court finds no merit in the present writ
petition and the same is hereby disposed of as rejected.
17. At this stage, it is clarified that since this Court was
seized of the present petition, the last date for filling up of the
application for the post in question had been extended
intermittently and whereas, learned AGP Mr.Pathak would,
relying upon circular dated 31.07.2025 of the Gujarat
Subordinate Service Selection Board - respondent no.2
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herein, submit that the same is now extended till 18.08.2025.
(NIKHIL S. KARIEL,J)
Bhoomi
