Holding

Rules 7A and 7B are ultra vires Articles 14 and 16 of the Constitution.

Summary

The appellant State of Uttar Pradesh challenged a High Court order that had declared Rules 7A and 7B of the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 ultra vires Articles 14 and 16 of the Constitution. The rules gave preferential treatment to candidates listed in the 1966 "Select List" for substantive vacancies, thereby excluding other eligible officers such as the respondent, Ram Gopal Shukla, from promotion. The Supreme Court examined whether the classification created by the rules was reasonable, whether it violated the equality clauses, and whether the State could raise a new plea not taken before the High Court. Relying on precedents concerning reasonable classification and equality, the Court held that the rules were arbitrary, discriminatory and could not survive constitutional scrutiny. Consequently, the appeal was dismissed, upholding the High Court's declaration of unconstitutionality.

Issues considered

Whether Rules 7A and 7B of the 1970 Rules violate Articles 14 and 16 of the Constitution.
Whether the classification created by the rules constitutes a reasonable and intelligible differentia having a rational nexus to the object sought to be achieved.
Whether a new plea not raised before the High Court can be taken up by the State before the Supreme Court.
Whether the State is the only necessary party in a proceeding challenging the vires of service rules.
Whether the rules fall within the executive power under Article 309 of the Constitution.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309

Subjects

PromotionService LawEqualityArticle 14Article 16Reasonable ClassificationUltra ViresPublic Service CommissionTehsildarUttar Pradesh

Judgment

A

460

STATE OF U.P. AND ANOTHER
B v.
RAM GOPAL SHUKLA

April JO, 1981

(A.D. KOSHAL AND R.B. MISRA, JJ.J
c Uttar Pradesh Promotion by Selection in Consultation with Public Service
Commission (Procedure) Rules, 1970, Rules 7A and 7B-Whether the rules are j
discriminatory and violative of Articles 14 and 16 of the Constitution.

New plea-New plea cannot be allowed at the time of hearing of the appeal
in the Supreme Court.
D
The selection for the posts of Tehsildars in the State of U.P. was to be made
by promotion from amongst various sources such as Naib Tehsildars, Peshkars of
the Kumaon Division, Kanungos, Kanungo Inspectors or Instructors and Sadar
Kanungos as per the procedure laid down in rules known as Uttar Pradesh
Adheenasth Rajaswa Karyakari (Tehsildar) Sewa Niyamavali, 1966. The procedure
for selection is regulated by Rule 9 and under sub-section (6) of this Rule a
E select list will be drawn in order of merit separately for substantive vacancies and
temporary vacancies and officials will be offered officiating or temporary vacancies
in the order in which their names have been arranged in the "select list" as and
when the vacancies occur during the course of the year. This "select list" will
hold good only for one year or until such time a review is made at the
following selections.

F Subsequently, the State Government made the Uttar Pradesh Promotion by
Selection in Consultation with Public Service Commission (Procedure) Rules, 1970,
which governed various services, to be more specific 29 Uttar Pradesh services
including the services of Tehsi!dars. The purpose of these rules was to standardise
the procedure for promotion and make it uniform in respect of such services. The
procedure laid down in the 1970 Rules for promotion as Tehsildars was not sub-
stantially different from that laid down in the Tehsildars Rules, 1966. By a
G Notification No. 42/4/196:-Appointment, 3 dated 4th July, 1972 two new rules
were introduced, namely, Rules 7A and 7B, in the 1970 Rules. -As per these newly
added rules candidates in the Select List made under the 1966 Rules were to be
appointed against substantive vacancies in preference to any candidates selected
in accordance with the provisions of the 1970 Rules and nnless the candidates in
the list were exhausted, other eligible candidates were not to be considered for
H promotion so that thei.r chances of promotion would be deferred to an undated
future.
•
U.P. STATE V. RAMGOPAL 461

The respondent who started his service as Kanungo in 1949, was promoted A
as Naib Tehsildar and in 1962 he was confirmed as such. In 1963, he was appoint-
ed as Tehsildar in an officiating capacity. In accordance with the 1966 Rules the
Uttar Pradesh, Public Service Commission selected 148 persons for sub-
stantive appointment as Tehsildars and their names were shown in a list known
as Li st-A. The Commission also selected 300 other persons for temporary or
officiating appointment as Tehsildars during the coming years and their names
figured in what was called List-B. The respondent was, however, not selected B
and his name could not be included in either of the aforesaid two lists because he
had an adverse entry forming part of the remarks recorded on his work and
conduct and had also been shown down below at serial 557 in the seniority list of
Naib Tehsildars in the year 1966. Though the adverse entry was expunged in
the year 1969 and his seniority was also re-fixed at serial number 216 on 6th
October, 1970, since there was no selection after 1966, his name could not be
included in either of the two lists even thereafter. c
The respondent challenged the vires of Rules 7A and 7B by filing a petition
uuder Article 226 of the Constitution in the High Court of Allahabad. That
petition was allowed in part and Rules 7A and 7B were declared ultra vires
Articles 14 and 16 of the Constitution, in the impugned judgment. Hence the
- appeal by special leave by the State.
D
Dismissing the appeal, the Court,

HELD: 1:1. Rules 7A and 7B of the Uttar Pradesh Promotion by Selection
in O;msultation with Public Service Commission (Procedure) Rules, 1970 .. are
ultra rires Articles 14 and 16 of the Constitution. (466 E, 473 A-BJ

1:2. The grievance of the respondent, namely, that he had a fundamental E
right of being considered for promotion when others similarly situated were so
condsidered and teat if he was not considered in a situation like that, he was
discriminated against and was denied equality of opportunity is not only factually
correct but well founded. [467 B-C]

2:1. It is true that the rules regulating the conditions of service are within
the executive power of the State or its legislative power under the proviso to F
Articles 309 of the Constitution, but even so, such rules have to be reasonable,
fair and not grossly unjust if they are to survive the test of Articles 14 and 16 of
the Constitution. A rn le, which contemplates tl1at unless the list of 300 persons is
exhausted no other person can be selected obviously, is unjust and it deprives other
persons in the same situation of the opportunity of being considered for
promotion. [470 F-H]
G
2:2. The classification in this case cannot be said to be a reasonable classi-
fication based on the intelligible differentia having a nexus to the object sought
to be achieved. The only basis of grouping the 300 persons in one category is that
they were included in the select list of 1966 and that ihey were officiating. The
respondent, in the instant case, could not be selected in the selection of 1966 on
account of an adverse entry which was subsequently expunged. His position in the H
seniority list was also corrected but because no selection took place after 1966.
The respondent could not be included in the list for no fault of his. If 1her1 hfld
•
462 SUPREME COURT REPORTS [1981] 3 S.C.R.

A been a selection and the list had been revised every year, as is the requirement of
the rules, the responde/lf, and like him many others, would have been included in
the list. For example, some candidates who had not completed seven years could
not be eligible for promotion and could not be included in the Select List of 1966
but after a lapse of time they became eligible and they might have been selected
if selection had taken place. But, the door for promotion had been foreclosed
for the respondent and many others like him by Rules 7A and 7B for no fault
B of theirs. The objection taken by the Public Service Commission and the letter of
the Secretary of the Board of Revenue addressed to the Government indicating
that it would take about 24 years to absorb 300 persons included in List-B and,
therefore, recommending that the list may not be enforced would point out
unmistakably that the selection was unnecessarily postponed only to accommodate
the 300 persons included in the Select List of 1966. There is no rational basis for
such a departure from the ordinary operation of the 1970 Rules which envisaged
c the preparation of a new list every year and for singling out one particular list
for according preferential treatment to others in the similar situtations.
[469 B-F, 470 A-C]

Stale of Jammu and Kashmir v. Triloki Nath Khosa and others [1974] 1
S.C.R. 771 ; Ramesh Prasad Singh v. State of Bihar and others, [1978] I S.C.R.
787 and Ganga Ram and others v. Union of India and others, [1973] 3 S.C.R. 481,
applied.
D
Reserve Bank of India v. C.S. Rajappan Nair and others, I.L.R. 1977 (1)
Kerala 398, approved.

3. In a case where the vires of certain rules were challenged as being vioMive
of the Articles 14 and 16 of the Constitution, only State is a necessary party. The
other persons likely to be affected by the declaration of the rules as ultra vires are
E only proper parties. [471 E-F]

4. A party cannot be p~rmittd to take up a new plea in the appeal for the
first time before this Court which was not taken before the High Court in writ
petition. [ 472 E-F]

General Manager, South Central Railway, Secundrabad and Anr. v. A. V.R.
Siddhanti and Ors., [1974] 3 S.C.R. 207, followed.
F
B. Gopalaiah v. Govern nent of Andhra Pradesh, A.LR. 1969 A.P. 204 and
J.S. Sachdev and Ors. v. Reserve Bank of India and Anr., I.L.R. (1973) II Delhi
392, approved.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 282 of
1980.
G
Appeal by special leave from the judgment and order dated the
29th March, 1980 of the Allahabad High Court (Lucknow Bench)
Lucknow in Writ Petition No. 524 of 1979.
AND
H
CIVL MISCELLANEOUS PETITION Nos. 4905 and 11949
of 1980.
..
U.P. STATE v. RAMGOPAL (Misra, J.) 463

G.N. Dixit, Mrs. Shobha Dikshit and H.R. Bhardwaj for the A
Appellants.

S.N. Kackar, K.K. Mohan, Rajiv Datta and A.S. Pandit for the
Respondent.

A.N. Pareek and S.K. Jain for the Intervener. B

The Judgment of the Court was delivered by

MISRA, J. The present appeal by special leave is directed against
the judgment dated 29th March 1979 of the Allahabad High Court
allowing a petition under Article 226 of the Constitution. C
In the State of Uttar Pradesh, there is a Service commonly
known as Naib Tehsildars. They have always formed the backbone
of the revenue administration in that State. Sixty per cent of the
posts of Naib Tehsildars are filled through a competitive examination
held by the State Public Service Commission. The remaining posts D
are filled by promotion. There is another Service in that State
known as the Service of Tehsildars. Cent per cent of the posts of
Tehsildars are filled by promotion from amongst various sources
such as Naib Tehsildars,. Peshkars of the Kumaon Division, Kanun-
gos, Kanungo Inspectors or Instructors and Sadar Kanungos.

Ram Gopal Shukla, the respondent, started his service as
Kanungo in 1949. In due course, he was promoted as Naib Tehsil-
dar. In 1962, he was confirmed as such, and in 1963 he was appoin-
ted as Tehsildi:ir in an officiating capacity.

It appears that a regular selection for the posts of Tehsildars F
was held in 1966 in accordance with the Uttar Pradesh Adheenasth
Rajaswa Karyakari (Tehsildar) Sewa Niyamavali, 1966 (hereinafter
referred to as 'the Tehsildar Rules 1966'). Rule 5 of these Rules
provides the sources of recruitment to the post of Tehsildar. Rule 6
thereof lays down conditions for eligibility and provides,--
G
"For the purposes of recruitment to the Service a
selection strictly on merit shall be made from amongst all
the permanent Naib Tehsildars, Tehsildars, Peshkars of the
Kumaon Division, Kanungo Inspectors or Instructors and
Sadar Kanungos, who have put in not less than seven years' H
service in the aggregate as such or in an equivalent or higher
464 SUPREME COURT REPORTS (198 J] 3 S.C.R.

A post in a substantive or officiating capacity on the first day
of January of the year in which the selection is made."

Rule 7 enjoins upon the Parish ad to report by i st of March every
year to the Government the number of vacancies in the Service
expected during the following calendar year, and then provides that
B the Governor shall fix the number of appointments to be made.
Rule 8 lays down the criterion for selection. Rule 9 prescribes the
procedure for selection. As this rule is important for the purpose
of the present case, it is reproduced in so far as it is relevant,-

"9. The procedure for selection shall be as follows :
c
(J) The Parish ad shall draw up, in order of merit, a list of
most suitable candidates from amongst those who are eligi-
ble for promotion to the posts of Tehsildars. The names
in the list shall ordinarily be double the number of
substantive vacancies to be filled during the course of the
n year.

(2) The Parishad shall also draw up, in order of merit, a
supplementary list containing names of officials considered
suitable for officiating or temporary vacancies expected to
occur during the course of the year.
E /

(3) The two lists drawn up under clauses (J) & (2) above
together with a gradation list prepared under clause (b) of
Rule 10, indicating therein the reasons for passing over the
seniors, if any and the character rolls of all the eligible
officials shall be forwarded by the Parishad to the Commis-
F sion "
(4) The Parishad shall thereafter, in consultation with the
Commission, fix date, on which a Selection Committee con-
sisting of-

G
shall consider the cases of the eligible candidates whose
names are contained in the final lists drawn up by the Com-
mission and interview such of them as are indicated by the
Commission under clause (3) above.
H
(5) The lists of the names selected by the Committee shall
be taken with him by the representative of the Commission
U.P. STATE v. RAMGOPAL (Misra, J.) 465

for placing them before the Commission, and the Commis- A
sion, shall thereafter send their final recommendations to
the Parishad.

( 6) The Parishad shall draw from the first list received
from the Commission under clause (5) above, as many can-
didates as there are permanent vacancies and will thereafter B
re-arrange their names in accordance with their seniority in
the present service and they will be appointed against the
substantive vacancies. The remaining names of the first list
and those of the second list will be regarded as forming the
'Select List' to be drawn up in order of merit. The officials
will be offered officiating or temporary vacancies in the c
order in which their names have been arranged in the afore-
said 'Select List' as and when the vacancies occur during the
course of the year. This 'Select List' will hold good only
for one year or until such time a review ;s made at the follow-
ing selection. (Emphasis supplied)
1)
(7) In case permanent vacancies do not occur for two con-
secutive years and it becomes necessary to make a selection
for temporary or officiating vacancies only, then also the
procedure prescribed above will be followed."

In accordance with the aforesaid rules, the Uttar Pradesh E
Publice Service Commission selected 148 persons for substantive
appointment as Tehsildars and their names were shown in a list
known as List A. The Commission also selected 300 other persons
for temporary and officiating appointment as Tehsildars during the
coming years and their names figuured in what was called List B.
The respondent was, however, not selected and consequently his F
name could not be included in either of the aforesaid two lists,
presumably because he had . an adverse entry forming part of the
remarks recorded on his work and conduct and had also been shown
down below at serial No. 557 in the seniority list of Naib Tehsildars
in the year 1956. Thoug;1 the adverse entry was expunged in the
year 1969 and his seniority was also re-fixed at serial No. 216 on 6th G
of October 1970, as there was no selection after 1966, his name
could not be included in either of the two lists. He has, however,
no grievance on that account.
Subsequently, the State Government made the Uttar Pradesh H
Promotion by Selection in Consultatioa with Public Service Com-
mission (Procedure) Rules, 1970 (hereinafter referred to as 'the
466 SUPREME COURT REPORTS (1981] 3 S.C.R.

A 1970 Rules'). These rules govern various Services, to be more
specific 29 U.P. Services including the Service of Tehsildars. The
purpose of these rules obviously was to standardise the procedure
for promotion and make it uniform in respect of all such Services.
The procedure laid down in the 1970 Rules for promotion as Tehsil-
dar was not substantially different from that laid down in the
B Tehsildar Rules 1966. The respondent, therefore, did not feel
aggrieved even by the introduction of the 1970 Rules. His grievance
started only with the introduction of rules 7-A and 7-B to the 1970
Rules by notification No.42/4/1966-Apptt. 3 dated 4th of July 1972.
As the question to be decided in this case is about the vires of rules
7-A and 7-B, it willbe appropriate to read them at this stage,-
c "7-A. Notwithstanding anything contained in these rules,
but subject to the proviso to rule 18, the names of candidates
on the Select List appointed in temporary or officiating
vacancies prior to the date of issue of this notification, shall
be rearranged in order of seniority."
D "7-B. The candidates of of the Select List as
rearranged in accordance with rule 7-A shall be appointed
against substantive vacancies in preference to any candidate
selected in accordance with the provisions of these rules."

The complaint of the respond_ent was foat the aforesaid new
E rules 7-A and 7-B were discriminatory and violative of Article 14 and
16 of the Constitution, in as much as the candidate in the Select
List of 1966 were to be appointed against substantive vacancies
in preference to any candidate selected in accordanc~ with the
provisions of the 1970 Rules and unless the candidates in the list were
exhausted, other eligible candidates were not to be considered
F for promotion so that their chances of promotion would be deferred
to an undated future. The further grievance of the respondent was
to the following effect. The Select List was to hold good only for
one year or until such time a review was mlde at the following
selection. Thus, the life of the Select List of 1966 was for one year
only on the expiry of which it died its natural death. In this view
G of the legal position, the appointment of Tehsildars from the Select
List of 1966 after the expiry of a year from the date of its operation
was illegal on the face of it. On the strength of Rule 7-A and rule
7B, no selection was to be held unless 300 persons included in List
B were absorbed.
H
The respondent challenged the vires of rules 7-A and 7-B by
filing a petition under Article 226 of the Constitution in the High
U.P. STATE v. RAMGOPAL (Misra, J.) 467

Court of Allahabad. That petition was allowed in part and rules 7-A A
and 7-B were declared ultra vires Articles 14 and 16 of the Constitu-
tion in the impugned judgment.

Shri Dixit, appearing for the State has contended that a mere
chance of promotion is not a con~ition of service giving rise to a
fundamental right. We are afraid this contention is irrelevant B
• to the decision of this case. The precise grievance of the respondent
has been that he had a fundamental right of being considered for
promotion when others similarly situated were so considered
and that if he was not considered in a situation like that, he was
oiscriminated against and was denied equality of opportunity. This
grievance, if factually correct, must be held to be well-founded.
c
It was next contended by Shri Dixit that the candidates covered
by rule 7-A are a class by themselves, that the classification is a
reasonable classification and that as the respondent does not satisfy
the requirements of rule 7-A, he cannot claim that any infraction of
Article 14 or 16 bas taken place.
D
According to Shri Dixit, two conditions are necessary to bring
a person within the fold of that rule: : (!) the candidate's name
must have been included in the Select List; and (2) he must have
been appointed in a temporary or officiating vacancy prior to the
date of issue of the notification of 4th July 1972. The respondent did
not satisfy these requirements and therefore did not fall within the E
purview of rule 7-A. Rule 7-B gives perference to the candidates in
the Select List as rearranged in accordance with rule 7-A, which,
according to Shri Dixit, was based on a reasonable cla11sification and
therefore the respondent can have no grievance. In support of this
contention, reliance has been placed on Reserve Bank of India v.
C.S. Rajoppan Nair and others,(1) State of Jammu & Kashmir v. Triloki F
Nath Khosa and others,(') Ramesh Prasad Singh v. State of Bihar
and others,( 3 ) and Ganga Ram and others v. Union of India and
others.(4 ) In C.S. Rajappan Nair (supra), the classification of a group
of employess who had officiated in a particular capacity as a different
class, treating them differently from others who had not the oppor- G
tunity to function as such, was held to be an intelligible differentia
which can stand the test of equality provided by Article 16 of the

(1) I.L.R. 1977 (I) Kere la 398.
(2) [1974] 1 S.C.R. 771. H
(3) [1978] 1 S.C.R. 787.
(4) [1970] 3 S.C.R. 481.
468 SUPREME COURT REPORTS [1981] 3 S.C.R

A Constitution. In Triloki Nath Khosa (supra), persons appointed
directly and by promotion had integrated into a common class of
Assistant Engineers. The question arose whether for the purpose
of promotion to the ·cadre of Executive Engineers, they could be
classified on the basis of educational qualification. It was held by
this Court that the rule providing that graduates shall be eligible
B for such promotion to the exclusion of diploma holders did not
violate Articles 14 and 16 of the Constitution. ln Ramesh Prasad 9'
Singh (supra), this Court, dealing with principle of equality under
Articles 14 and 16, observed,-

"The doctrine of equality before law and equal protec-
c tion of laws and equality of opportunity in the matter of
employment and promotion enshrined in Articles 14 and
16 of the Constitution which is intended to advance justice
by avoiding discrimination is attracted only when equals
are treated as unequals or where unequals are treated as
equals. The guarantee· of equality does not imply that the
D same rules should be made applicable in spite of differences
in their circumstances and conditions. Although Articles
14 and 16 of the Constitution forbid hositle discrimination,
they do not forbid reasonable classification and equality of
opportunity in matters of promotion -means equality as bet-
ween members of the same class of employees and not
equality between members of separate independent classes.

Equality is for equals, that is, who are similarly circum-
stanced are entitled to an equal treatment but the
guarantee enshrined in Articles 14 and 16 of the Constitu-
F
tion cannot be carried beyond the point which is well-settled
by a catena of decisions of this Court."

In Ganga Ram (supra), dealing with Articles 14 and 16 of the Consti-
tution, this Court again held,-
G
"Mere production of inequality is not enough to
attract the constitutional inhibition because every classifica-
tion is likely in some degree to produce some inequality.
The classification need not be scientifically perfect or logically
H complete. The matter has to be considered in a practical
way without whittling down the equality clause. The classi-
fication must however be founded on intelligible differentia
U.P. STATE v. RAMGOPAL (Misra, J.) 469

which on rational grounds distinguishes persons grouped A
together from those left out, and it must bear a just and
reasonable relation to the object sought to be achieved."

There is no dispute with the principles of law laid down in the
aforesaid cases. By now, the principles of classification are well-
settled and need not be repeated. The question is of application
B
of those principles to the facts of the present case. The only basis
for grouping the 300 persons in one category is that they were
included in the Select List of 1966 and that they were officiating.
The respondent in the instant case could not be selected in the
selection of 1966 on account of an adverse entry which, as stated
earlier, was subsequently expunged. His position in the seniority
c
list was also corrected but because no selection took place after 1966
the respondent could not be included in the list for no fault of his.
If there had bfen a selection and the list had been revised ewry year
as is the 1equireme11t of the rules, the respondent, and like him many
others, would have been included in the list. For example, some
candidates who had not completed seven years could not be eligible
D
for promotion and could not be included in the Select List of 1966
but after a lapse of time they became eligible and they might have
been selected if selection had taken place. But, the door for promo-
tion had been fo reclosed for the respondent and many others like
him by rules 7-A and 7-B for no fault of theirs. In this connection
E
reference may be made to the objection of the Public Service
Commission and the letter of the Secretary of the Board of Revenue,
to show that it would take about 24 years to absorb 300 persons
included in List B. The Secretary, Board of Revenue, vide his
letter No. 14708/T.N.T.-59-A/70 dated 30th of January J973, to the
Secretary, Government Revenue Department (filed as Annexure II
F
to the counter-affidavit), recommended that the List B may not
be enforced. In so far as it is pertrnent for the present purpose,
it reads,--

"On the basis of the selection in the year 1966, the
List 'B' was prepared for 300 names. During this period all G
the candidates of list 'B' ·are working. So long as all these
candidates are not absorbed in the regular vacancies, the
question of second selection does not arise till then. Only
56 vacancies have occurred after the selection of 1966.
According to this the average vacancies in a year are at H
I 0, with the result, it will take 24 years to exhaust the above
list. Till then no selection is possible."
470 SUPREME COURT REPORTS (1981] 3 S.C.R.

A In the circumstances, the Secretary requested the Government
to take steps to recommend to the Public Service Commission to
make the next selection of Tehsildars without any further delay.
The objections of the Secretary, Board of Revenue, were similar """1
to the objections raised by the Public Service Commission. These
letters and objections poiat out unmistakably that the selection
B
was unnecessarily postponed only to accommodate the 300 persons
included in the Select List of 1966. There appears to be no rational
basis for such a departure from the ordinary operation of the 1970
Rules which envisaged the preparation of a new li£every year and
for singling out one particular list for according preferential treat-
c ment to the persons whose names were contained therein. The
classification in this case therefore cannot be said to be a reasonable
classification based on intelligible differentia having a nexus to the
object sought to be achieved.

It is, however, contended for the State that the selection could
not take place for all these long years because of a stay order passed
D by the High Court in petitions filed by some candidates challenging
the Tehsildar Rules 1966. This has been refuted by Shri S.N.
Kacker and a finding recorded by the High Court makes out that
there was no order staying the holding of selection. All that was
stayed was the confirmation of the officers promoted to the posts of
Tehsildars. It is therefore not correct that selection could no, take
E
place because of a stay order from the High Court.

As a second limb of this argument, it was contended on
behalf of the State that the Government was the sole judge of the
administrative necessities and there being no rule to the contrary,
F the Government could hold selection according to the need and no
exception can be taken to the power of the State.

There is no denying the fact that the rules regulating the
conditions of service are within the executive"'power of the State or
its legislative power under the proviso to Article 309 but even so,
G such rules have to be reasonable, fair and not grossly unjust, if they
are to survive the test of Articles 14 ati.d 16 of the Constitution. A
rule which contemplates that unless the list of 300 persons is
exhausted no other person can be selected, obviously is unjust and
it deprives other persons in the same situation of the opportunity
H of being considered for promotion.
U.P. STATE v. RAMGOPAL (Misra, J.) 471

It was next contended for the State that the declaration of A
rules 7-A and 7-B as ultra vires the Constitution would affect not
only the incumbents of one Service but of 29 Services and a fairly
large number of persons would be affected in that situation, that the
respondent did not implead any of those persons likely to be affected
in the various Services, that in any case, at least the Naib Tehsildars
or other persons who have been promoted as Tehsildars and who B
are likely to be affected by the declaration of rules 7-A and 7-B as
ultra vires should have been impleaded as parties and that in the
absence of those parties, the writ petition was not maintainable and
should have been dismissed by High Court on that score.

Shri S.N. Kacker appearing for the respondent, on the other c
hand, has contended that no such plea was taken on behalf of the
State before the High Court and that, therefore, it cannot be
permitted to take up a new plea for the first time before this Court.
Elaborating the point, Shri Kacker urged that if such a plea had
been taken before the -High Court, the respondent would have
impleaded all those persons as parties and filled up the lacuna, if D
any, and that if the State is permitted to take up such a plea for the
first time before this Court, it would seriously prejudice the case
of the respondent. Alternatively, it was contended that the respon-
dent is aggrieved by the ameildment of the 1970 Rlues by the 1972
notification which introduced rules 7-A and 7-B, that the respondent
has challenged the vires of rules 7-A and 7-B and only the State is E
.a necessary party who has already been impleaded, and that at the
most, those pusons who are likely to be affected in case the said
rules are declared ultra vires, may be proper parties but are not
necessary parties. He sought to take support for his contention
from B. Gopalaiah v. Government of Andhra Pradesh,(1) J.S.
Sachdev & Ors. v. Reserve Bank of India & Anr.,(') and General F
Manager, South Central Railway, Secundrabad & Anr. v. A. V.R.
Siddhanti and Ors.(3) In Gopalaiah' s case dealing with a situation as
in the present case, the Andhra Pradesh High Court held,-

"This is not a case of discrimination of individual
against individual. This is a case where a whole class of G
citizens have been discriminated against and the court can-
not refuse to give relief to them on the ground that the

(!) A.LR. 1969 A.P. 204. H
(2) l.L.R. (1973) II Delhi 392.
(3) [1974] 3 S.C.R. 207.
A72 SUPREME COURT REPORTS [1981) 3 S.C.R.

A class of persons who will be benefited as a result of the
discrimination are not before the Court. The person who
complains of discrimination cannot be expected to search
the country for all persons who are likely to be benefited by
its discriminatory policy. Of course, if the discrimination
is in favour of an individual against an individual
B different considerations might arise. But this is not such a
case. In my opinion, where a scheme formulated by the
Government is attacked on the ground of its being discrimi-
natory the position is precisely the same as if a statute is
attacked as being discriminatory and it can never be an
answer to such an attack that persons likely to be benefited
c by a discriminatory statute should be brought before the
Court before the statute is struck down." j

In J.S. Sachdev' s case (supra), a Division Bench of the Delhi
High Court endorsed the view taken in Goplaiah's case (supra). In
D South Central Railway's case (supra), a similar objection taken before
the Supreme Court was repelled on two grounds, firstly, because
this point was not canvassed in the lower courts, and secondly,
because the employees who were likely to be affected as a result of
the re-adjustment of the petitioner's seniority were at the most proper
parties and not necessary parties and their non-joinder could not
E be fatal to the writ petition.

In view of the law laid down in South Central Railway's cave
(supra), the State cannot be permitted to take up a new plea which
was not taken before the High Court.
F
Shri B.P. Sharma had moved an application (C.M.P. No.4905/
80) for permission to intervene in the appeal on the ground that he
was vitally interested in the outcome of the instant appeal which
would have a great bearing upon the claim petition pending before
the Service Tribunal, Lucknow. This application was ordered to
G be listed at th.: time of the hearing of thisa ppeal. He also moved
an application (C.M.P.No. 11949/80) for modification of the stay
order dated 23rd of April 1980 in the appeal filed by the State, so
as to govern other cases:affected by rules 7-A and 7-B of the 1970
Rules, as amended by the 1972 notification. Later on, he realised
that such an application could not be moved on behalf of an
H intervener, anc! the'refore, instead of pursuing this application, he
U.P. STATE v. RAMGOPAL (Misra, J.) 473

filed Writ Petition No. 3806 of 1980, which has been dealt with A
separately. Both these applications are, therefore, dismissed.

For the reasons given above, we find no error in the impug-
ned judgment. We accordingly dismiss the appeal. Parties shall,
however, bear their own costs.
B

S.R. Appeal dismissed.