The Judgment of the Court was delivered by

Jagannadha Rao, C.J:— This Writ Petition of the yea? 1981, which was referred to a Division Bench on 3-2-1986 was adjourned on 13-1-1988 for being heard after the decision of the Supreme Court in the Special Leave Petition filed against another judgment in O.P No. 1851 of 1984. The Supreme Court has since dismissed the Special Leave Petition, SLP (Civil) 4663 of 1990 on 9-4-1990. Thereafter the matter has now come up before us.

2. The writ petitioner was recruited as Junior Mechanic on 9-11-1971. He possesses SSLC qualification and the Industrial Training Course Certificate in the subject of general mechanic. Special Rules for the Kerala Government Presses Subordinate Service were published on 22-9-1976 as per Ext. P1, prescribing the method for promotion to the superior posts. In these rules it was stipulated that diploma holders would have preference over non - diploma holders for promotion to the superior posts. Subsequently the said Rules were amended by Ext. P4 Rules dated 1-7-1980 with retrospective effect from 30-1-1978 by G.O (P) No. 100/80. By way of this amendment diploma holders and certificate holders were promoted to the superior pests on the basis of the ratio 1:1. When the writ petition, was filed, the petitioner was working as Assistant Mechanic, and he claimed promotion to the post of Senior Mechanic. Obviously the petitioner relied upon seniority in the category to which he belongs, and claimed that another person belonging to the same category would not be preferred for promotion as Senior Mechanic, merely because that person was a diploma holder. The petitioner, therefore, sought for quashing of the ratio 1:1 prescribed by Ext. P4 amendment by G.O (P) No. 100/80, which was to have retrospective effect from 30-1-1978. The point made by the petitioner is that once the employees are brought into the same category, or are in the same category, no discrimination should be made for the purpose of higher promotion. Learned counsel for the writ petitioner has relied upon a decision of a Division Bench of this Court in Daniel v. State Of Kerala, 1985 K.L.T 1057. That was also a case relating to the Government Presses Subordinate Service Rules, 1976 (Kerala) and that related to Note to Branch Nos. 1 and 9, whereas in the case before us we are concerned with branch No. 10. In that case, the prescription of ratio 1:1 was struck down by the Division Bench of this Court in so far as branches 1 and 9 are concerned, and the relevant note appended to rules in relation to branches 1 and 9 was struck down. We do not find much of discussion in the short judgment of the Division Bench in the above case, and we find only the following reasoning:

“In the light of the decisions of the Supreme Court in (1974) 1 SCC 19 : A.I.R 1974 SC 1; (1975) 3 SCC 76 : A.I.R 1974 SC 1631, 1983 KLT 987, ILR 1981 (2) Kerala 527 and 1975 K.L.T 1, we have no doubt at all that this classification on microscopic distinction could not be allowed. We would therefore stride down the notes to Branch Nos, 1 and 9 named in Ext. P2.”

3. So far as the decision in the State of Jammu & Kashmir v. Triloki Nath Khosa, (1974) 1 SCC 19 : A.I.R 1974 S.C 1 is concerned, we find that could not have been an authority for the proposition that no classification could be made for further promotion on the basis of the difference in educational qualification. In fact the said decision is an authority for the proposition that difference in educational qualification could be a ground for discrimination in the matter of future promotion. After referring to the several decisions, the Supreme Court concluded in paragraph 55 as follows:

“We are therefore of the opinion that though persons appointed directly and by promotion were Integrated into a common class of 3 Assistant Engineers, they could, for purpose of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma holders does not violate articles 14 and 16 of the Constitution and must be upheld.”

4. The other case cited by the Division Bench is the decision of the Supreme Court in Mohd. Shujat Ali v. Union of India, (1975) 3 SCC 76 : A.I.R 1974 S.C 1631. In that case it was observed that a rule of promotion which while conceding that non-graduate Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate Supervisors as against non-graduate Supervisors, would clearly be calculated to destroy the guarantee of equal opportunity. But even so, the Andhra Pradesh Engineering Service Rules (1966) in so far as they make differentiation between graduate and non-graduate Supervisors cannot be struck down as violative of Art. 14 of the Constitution. It was emphasised that the quota fixed did not have any special nexus with the duties involved in the superior post. On facts, the Supreme Court ultimately upheld the discrimination on the basis of historical classification. In so far as the decision, in Pushpadharan v. Food Corporation Of India, 1983 K.L.T 987 is concerned, it was decided by a learned Single Judge of this Court, wherein it was held that the prescription of different periods of service for graduates and non-graduates for promotion to the cadre of Assistants Grade II in the Food Corporation of India was bad. Again Rajan v. State of Kerala, 1983 K.L.T 878 is a decision of another learned Single Judge of this Court, wherein reservation of 50% of the vacancies for Assistant Executive Eagineers was made giving preference to graduates for promotion and the distinction was held to be discriminatory. Abdul Basheer v. Karunakaran, I.L.R 1981 (2) Ker. 527 was a case decided by a Division Bench of this Court in relation to Excise and Prohibition Subordinate Service Rules. It was there held that the rule introducing ratio of 3:1 for promotion to the post of second grade inspectors from Preventive Officers is discriminatory and violative of articles 14 and 16 of the Constitution of India. E Ratio there was fixed between graduates and non-graduates for the purpose of promotion.

5. But subsequently almost all these decisions have been reviewed by a Division Bench of this Court in Balakrishnan v. State of Kerala, 1990 (1) K.L.T 66. That case related to Engineering Service (Radio and Electrical Branches) Rules, 1967. The ratio of 1:1 was provided between graduates and non-graduates Assistant Engineers for further promotion, after they had come into common cadre. The Division Bench upheld the said ratio. According to the Division Bench, this question is no more res integra as it stands concluded by the judgment of the Supreme Court in the decision reported in State of J & K v. T.N Khosa, (1974) 1 SCC 19 : A.I.R 1974 S.C 1. The learned Judges also referred to a recent decision of the Supreme Court in Abdul Basheer v. K.K Karmakaran, 1989 Supp (2) SCC 344 : A.I.R 1989 S.C 1624. In that case, the Supreme Court was required to examine the validity of the rule prescribing the ratio of 1:3 between graduates and non-graduates for promotion to the post of Second Grade Excise Inspector from the post of Excise Preventive Officer. Though the Supreme Court declared the prescription of the said ratio as void as violative of Arts. 14 and 16 of the Constitution. It did so on the ground that the considerations that weighed in the prescription of such a ratio has no relevance to the object of the measures framed by the Government. The relevant observation of the Supreme Court in that case to the following effect was extracted by the Division Bench:

“The other contention raised before the High Court, namely, that the ratio 1:3 between graduates and non-graduates is supportable on the ground that the recognition of graduates is recognition of merit, and that more merit in the post of Excise Inspectors would be conducive to better administrative efficiency, is shortly disposed of. Ordinarily, it is for the Government to decide upon the consideration which, in its judgment, should underline a policy to be formulated by it. But if the considerations are such as prove to be of no relevance to the object of the measure framed by the Government it is always open to the Court to strike down the differentiation as being violative of articles 14 and 16 of the Constitution. In the present case, we have already commented on the circumstance that the conditions of employment and the incidents of service recognise no distinction between graduate and non-graduate officers and that for all material purposes they are effectively treated as equivalent. Accordingly, the contention must also be rejected…………………”

6. The Division Bench in Balakrishnan's case then observed, that the above decision of the Supreme Court does not mean that the prescription of ratio for graduates and non-graduates would always be bad. It could be bad only if the prescription would have no relevance to the object sought to be achieved. The Division Bench then referred to another decision of the Supreme Court in Roop Chand v. Delhi Development Authority, 1989 Supp (1) SCC 116 : A.I.R 1989 S.C 307. That was a case in which rules regulating promotion from the cadre of Junior Engineers to the cadre of Assistant Engineers and from the cadre of Assistant Engineers to the cadre of Executive Engineers were challenged on the ground that prescribing different conditions for graduates and diploma holders were bad. There was a ratio of 50% for one category and 25% to other categories. Different years of experience were also provided. The High Court of Delhi struck down the rales. The Supreme Court reserved the decision of the Delhi High Court and it was held that prescribing longer period of service for diploma holders as compared to degree-holders was not discriminatory. The Supreme Court upheld the rule prescribing a ratio between degree holders and diploma holders. While doing so, the Supreme Court followed the earlier decision of the Supreme Court in State of J & K v. T.N Khosa, (1974) 1 SCC 19 : A.I.R 1974 SC 1. The Division Bench in Balakrishnan's case accepted the plea on behalf of the Government that having regard to the nature of the particular service, prescription of ratio between graduates and non-graduates was valid.

7. The above said judgment was followed in C.M Cheru v. State of Kerala, O.P No. 1851 of 1984 decided on 8-11-1989. C.M Cheru's case was decided by the same Division Bench which decided Balakrishnan's case. That case related to Kerala Public Health Engineering Services Rules. The contention was that the rules were bad inasmuch as only 5% of the posts of Executive Engineers was reserved for diploma holders. The learned Judges followed the earlier decision in Balakrishnan's case above referred to and also came to the conclusion that the reservation was based on rational criteria. In the same case the prescription of ratio of 3:1 between graduates and diploma holders for promotion to the post of Assistant Engineer from Junior Engineer was also questioned. The same was also upheld after holding that the prescription of the qualification had sufficient nexus with the duties attached to the promotional post. The special leave petition preferred by the petitioners therein against the judgment in O.P No. 1851 of 1984 was dismissed by the Supremo Court as already stated.

8. We have already pointed out that the present writ petition before us has awaited the result of the Special Leave Petition which was filed against the judgment in O.P No. 1851 of 1984. In the present case the Government has filed a counter stating that after considering various aspects, the Government prescribed the necessary qualification for the various supervisory posts ‘according to the requirement of duties and functions of the post’. It is also stated that special rules were made for the petitioner and other similarly situated persons. It is also stated that Government considered that seniors who are not diploma holders may be prejudiced by the rules as they stood in 1976, and that the ratio of 1:1 fixed for promotion between the certificate holders and diploma holders is quite reasonable and rational and hence valid. Having regard to to technical nature of the posts in the Government presses we do not think that the ratio prescribed between diploma holders and certificate holders is in any way unreasonable. In view of the subsequent decision of the Supreme Court in Roop Chand's case, 1989 Supp (1) SCC 116 : A.I.R 1989 SC 307, and also in view of the two judgments of the Division, Bench in Balakrishnan's case and in Cheru's case, O.P No. 1851 of 1984, we are not Inclined to fallow the decision of the Division Bench in Daniel v. State Of Kerala, 1985 K.L.T 1057.

9. For the aforesaid reasons, the Writ Petition is dismissed. There will be no order as to costs.