TaxTMI 
TaxTMI 
1974 (5) TMI 114
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....n since the last over fifteen years in regard to absorption and integration of Supervisors of the erstwhile State of Hyderabad in the Engineering Service of the reorganised State of Andhra Pradesh. It would be convenient to start the narration of facts with a description of the organisation and structure of the Engineering Service in the erstwhile State of Hyderabad, for the petitioners/appellants were Supervisors belonging to that Service immediately prior to the reorganization of the States on 1st November, 1956 and it is their contention that on absorption and in- tegration into the Engineering Service of the newly formed- State of Andhra Pradesh, equality of opportunity has been denied to them by the State of Andhra Pradesh and their conditions of service have been altered to their disadvantage without complying with the requirement of law. The Hyderabad Service of Engineers consisted of two sections, one called State Service and the other called Subordinate Service. The State Service comprised of two classes, namely, Class 1 and Class 11. Class 1 consisted of superior posts of Chief Engineer, Superintending Engineer and Executive Engineer and Junior Scale posts of Assistant En....
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.... that was made by a notification dated 18th November, 1955 which provided that during the years 1954 and 1955 the student who stands first in the US Course of Osmania Engineering College shall be eligible for appoint- ment to the post of Supervisor. It might appear that even earlier there was such a rule providing that a student who obtained first class first in OCE Examination could be directly recruited as Supervisor and support for existence of such rule was sought from the fact that petitioners Nos. 1 and 2 in petition No. 385 of 1969 who stood first class first in OCE Examination held in 1943 and 1944 respectively were directly recruited as Supervisors. But it was pointed out by the learned counsel appearing on behalf of the respondents that petitioners Nos. 1 and 2 were not directly recruited as Supervisors, but their initial recruitment was as Sub-Overseers and having regard to the fact that they stood first class first in OCE Examination, they were immediately promoted as Supervisors and these two solitary instances were, therefore, not symptomatic of any exception to the rule that US and OCE certificates did not qualify a person for direct recruitment as Supervisor. The po....
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....ior to 1st November, 1956 when the reorganization of the States took place under the States Reorganization Act, 1956. The effect of the States Reorganization Act, 1956 was that the Telengana territories of the erstwhile State of Hyderabad were added to the State of Andhra and with the added territories, the State of Andhra came to be known as the State of Andhra Pradesh. The petitioners/appellants who were immediately before 1st November, 1956, serving as Supervisors in the Telengana area of the erstwhile State of Hyderabad, were allotted for service in the State of Andhra Pradesh and they became Supervisors in the State of Andhra Pradesh as from 1st November, 1956. The position in regard to the Engineering Service which obtained in the State of Andhra prior to 1st November, 1956 was different. The territories of the State of Andhra at one time formed part of the State of Madras and, therefore, the Special Rules for the Madras Engineering Service issued under the notification dated 28th September, 1953 and the Special Rules for the Madras Engineering Subordinate Service issued under the notification dated 30th September, 1953- both under the Proviso to article, 309 of the Consti....
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...., as stated above, was regarded as equivalent to degree in engineering, were designated as Junior Engineers. So far as the posts of Assistant Engineers were concerned, there were two modes of recruitment; one by direct recruitment and the other by promotion. The promotions were to be made from the cate- gories of Junior Engineers, Supervisors and Draftsmen. Two out of every three vacancies in the posts of Assistant Engineers were to be filled by promotion of Junior Engineers while the third was to be filled by promotion from amongst (i) directly recruited Supervisors possessing US or LCE diploma of the College of Engineering, Guindy or certificate of having passed sections A and B of AMIE (Ind.) Examination and having put in not less than five years' service as Supervisors which was later increased to ten years' service with effect from 12th February, 1966, (ii) Supervisors promoted from the rank of Overseers and either (a) possessing US or LCE diploma of the College of Engineering Guindy or certificate of having passed sections A and B of AMIE (Ind.) Examination and having put in not less than fifteen years' service, or (b) possessing LS or OCE certificate of the Co....
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.... provisionally pending the reparation of the provisional common gradation list should be reviewed so as to bring them in conformity with the ranking in the provisional common gradation list, as stated categorically by the Government of Andhra Pradesh in its memorandum dated 26th November, 1956 and directed by the Government of India by its letter dated 11th March, 1959. The provisional common gradation list was thereafter finalised by the Government of Andhra Pradesh in accordance with the decision of the Government of India under section 115(5) of the States Reorganisation Act, 1956 and the final gradation list was published under an order dated 23rd November, 1967 by the Government of Andhra Pradesh. The final gradation list consisted of two parts, one part showing the inter se seniority of Junior Engineers and the other showing the inter se seniority of non-graduate' Supervisors and it was directed that the final gradation list shall come into force retrospectively from 1st November, 1956. It may be pointed out that the Junior Engineers shown in the first part of the final gradation list included not only Junior Engineers from Andhra region but also graduate Supervisors from....
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....as that the Sub-Engineers from the erstwhile State of Hyderabad were promoted as Assistant Engineers with effect from 31st October, 1956 afternoon and they came to be allotted to the State of Andhra Pradesh as Assistant Engineers, the pay scale of graduates being the Telengana scale of pay of Assistant Engineers and the pay scale of non-graduates being the Andhra scale of pay of Assistant Engineers. This action of the Government of Andhra Pradesh was indirectly confirmed by the Government of India by its letter dated 24th December, 1965 which directed that the following equation of posts should be adopted for drawing up the final gradation list :- CATEGORY IV Assistant Engineer (Hyderabad) Assistant Engineer (Hyderabad) Sub-Engineer (Hyderabad) Sub-Engineer (Andhra) Note I : The Sub-Engineers of Hyderabad should be placed en bloc below the Assistant Engineers from both the regions. Note If : The Sub-Divisional Officers of Hyderabad should be placed en bloc at the bottom of the category. The Sub-Engineers who were promoted as Assistant Engineers with retrospective effect from 31st October, 1956 afternoon were thus directed to be placed en bloc below the Assistant Engineers from b....
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....ember, 1956, to a post one stage above that held by him prior to the said date; if in the opinion of the appointing authority such person would have been qualified for promotion or for appointment any such post under the Hyderabad Cadre and Recruitment Rules applicable thereto, had recruitment to such post been regulated by the last mentioned Rules." We shall have occasion to refer to this clause in some detail when we examine the arguments advanced on behalf of the parties. Now under the Hyderabad Rules, non-graduate Supervisors including the petitioners/appellants who merely possessed US or OCE certificates of Osmania Engineering College were entitled to be considered for promotion to fifty per cent of the posts of Sub-Engineers and, according to the petitioners/appellants, the posts of Sub-Engineers being equated with those of Assistant Engineers from 1st November, 1956, their right to be considered for promotion extended to fifty per cent of the posts of Assistant Engineers. But the Government of Andhra Pradesh followed the Andhra Rules in promotion from the posts of Supervisors to those of Assistant Engineers from and after 1st November' 1956 and according to the And....
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....ttee consisting of the Chief Engineer (General), Principal of the Osmania Engineering College, Director of Technical Education and Additional Secretary to the Government Public Works Department to consider these representations and the Special Committee at its meeting held on 21st April, 1961 came to the decision that US and OCE certificates of the Osmania Engineering College were not equivalent to LCE or LME or LEE diplomas, The question was then referred to the State Board of Technical Education, which was a high powered body comprising of administrators, educationists and technical experts, such as Secretaries to the Government in the Education and other Departments, the Director of Public Instruction, the Secretary of the Regional Committee of the All India Committee for Technical Education, retired Chief Engineers as also Chief Engineers in office, and principals of Engineering Colleges in the State. The State Board of Technical Education examined the question thoroughly and in great detail and at its meeting held on 1st June, 1962 agreed with the view expressed by the Special Committee that US or OCE certificates of the Osmania Engineering College could not be equated with LC....
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....s of the Osmania Engineering College as equivalent to LCE, or LME or LEE diplomas, but to regard them as equivalent only to US or OCE certificates of the College of Engineering, Guindy. The Government of India, by its letter dated 17th March, 1966, upheld the stand taken by the Government of Andhra Pradesh and rejected the plea of the non-graduate Supervisors from the erstwhile State- of Hyderabad as untenable. There was again a batch of writ petitions, being Writ Petition No. 645 of 1967 and other allied writ petitions, in the High Court of Andhra Pradesh challenging the decision of the Government of Andhra Pradesh as confirmed by the Government of the of India in regard to equivalence of US and OCE certificates Osmania Engineering College. These writ petitions were heard by a Division Bench consisting of Jaganmohan Reddy, C.J., (as he then was) and Kondaiah, J., and by a judgment dated 23rd February, 1968 the Division Bench held inter alia that there was nothing to show that the decision of the Government of Andhra Pradesh--confirmed by the Government of India to treat US and OCE certificates of the Osmania Engineering College as inferior to LCE, LME or LEE diplomas and to regard....
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....among the Suprs. or Draughtsmen with L.C.E.or L.E.E. diploma or any equivalent qualification and the third shall be filled by recruitment by transfer from among the Supervisors or Draughtsmen with lower Subordinate Diploma of the College of Engineering, Guindy or the Upper Subordinate Diploma of the College of Engineering, Hydera- bad, or any equivalent qualification. The appointments under which Sub-Rule shall be made in the order of rotation specified below in every circle of 18 vacancies 1. Junior Engineer. 10. Junior Engineer. 2. Junior Engineer. 11. Junior Engineer. 3. Supervisor-Direct recruit. 12. Supr. direct recruit. 4. Junior Engineer. 13. Junior Engineer. 5. Junior Engineer. 14. Junior Engineer. 6. Overseer-promotee Supr. 15. Draughtsmen first grade. special with LCE qualification 7. Junior Engineer. 16. Junior Engineer. 8. Junior Engineer. 17. Junior Engineer. 9. Overseer-promotee Supr. with L.S. 18. Draughtsmen with L.S. Guindy or Diploma of the College of Engg., U. S of Osmania Guindy, or Upper Subordinate University. Diploma ....
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.... College of Engineering, Guindy and LCE, LME or LEE diplomas of any other recognised institution and equating them with LS or OCE certificates of the College of Engineering, Guindy was erroneous and should be set aside. B. The non-graduate Supervisors from the erstwhile Hyderabad State were, under the condition of service applicable to them immediately prior to 1st November, 1956, entitled to have fifty percent of the vacancies in the posts of Assistant Engineers available to them for promotion. But the Andhra Rules, which were applied by the Government of Andhra Pradesh from and after 1st November, 1956, made available to non- graduate Supervisors only one third of the vacancies in the posts of Assistant Engineers. To make things worse, the Andhra Pradesh Rules, as they stood in their unmended form, made only one out of eighteen vacancies in the posts of Assistant Engineers available for promotion to the non-graduate Supervisors from the erstwhile Hyderabad State holding US or OCE certificates of the Osmania Engineering College and, under the amended Andhra Pradesh Rules, only one out of twenty four vacancies in the posts of Assistant Engineers was made available to them for pr....
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....stitution praying that the Andhra Pradesh Rules be quashed and set aside in so far as they affect the petitioners and promotions made from and after 1st November, 1956 should be reviewed on the; basis of the final common gradation list of Supervisors published under the order dated 23rd November, 1967 without any discrimination on the ground of qualifications by holding that the Andhra Pradesh Rule,-, altering the ratio one to one between graduates and non-graduates and prescribing different qualifying period of service for directly recruited graduate Supervisors and directly recruited non-graduate Supervisors for promotion to the post of Assistant Engineers are unconstitutional and void. There was one contention urged on behalf of the petitioners in support of the writ petition and it was as follows : E. The Andhra Pradesh Rules in so far as they discriminate between graduate Supervisors and non-graduate Supervisors by fixing initially the ratio of three to one between graduate Supervisors and non-graduate Supervisors for the purpose of promotion to the posts of Assistant Engineers are violative of article 14 and hence void. We may now proceed to examine the contentions urge....
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....cations and the decision taken by the Government of Andhra 'Pradesh on the basis of the recommendation of the State Board of Technical Education could not be regarded as unreasonable or perverse ,or manifestly wrong nor could it be said to be mala fide or based on extraneous or irrelevant considerations. Indeed, the Government of Andhra Pradesh could not do better than relay on the recommendation of the State Board of Technical Education. The Full Bench as well as the Division Bench of the Andhra Pradesh High Court have in fact shown in their respective judgments, on a comparison of the duration and content of the respective courses, that US and OCE certificates of the Osmania Engineering College, were, both from the point of view of academic learning as also from the point of view of practical experience, inferior to US or LCE diploma of the College of Engineering, Guindy or LCE, LME or LEE diploma of any other recognised institution. It may also be pointed out that even in the erstwhile State of Hyderabad itself, US and OCE certificates of the Osmania Engineering College were not treated on a par with LCE, LME or LEE diploma. Firstly, an Overseer holding US or OCE certificate....
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....nd it was after giving due consideration to these representations on the basis of the recommendations of the Advisory Board which consisted of experts, that the Central Government affirmed the decision of the Government of Andhra Pradesh by its letter dated 17th March, 1966. The present contention of the petitioners/appellants. must, therefore, be rejected. Re. B: This contention rests on the applicability of the proviso to section, 115, sub-section (7) of the States Reorganisation Act, 1956. Subsection 115 regards as follows "Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter 1 of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State." The effect of this sub-section is inter alia to preserve the power of the, State to make rules under article 309 of the Constitution laying down the conditions of service of persons allocated to serve in connection with the affairs of the State. But there is a proviso which imposes a limitation on the exercise of this power and that proviso runs as .under : "Provide....
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....ard to promotion applicable to; non graduate Supervisors from the erstwhile State of Hyderabad immediately prior to 1st November, 1956. It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammed Bhakar v. Krishna Reddy(1) where this Court, speaking through Mitter, J., said : "Any rule which affects the promotion of a person relates to his condition of service." But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion-the latter would certainly not be a, condition of service. This Court point out in State of Mysore v. G. B. Purohit(2) that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in State of Mysore v. G. B. Purohit(2) was that the district wise seniority of Sanitary Inspectors was changed to State wise seniorit....
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....ences, the Central Government had (1) 1970 Service Law Reporter 768. (2) C.A. No. 2281 of 1965, dec. on 25th January, 1967. (3) W.P. No. 299 of 1969, dec. on 12th November, 1973 decided that the conditions of service in regard to substantive pay of permanent and temporary employees, special pay, leave rules, pension, provident fund and dearness allowances applicable to personnel affected by the reorganisation immediately prior to the appointed day should be protected, but so far as conditions of service in regard to travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion were concerned, paragraph 3 of the memorandum stated that the decision of the Central Government was that : "it would not be appropriate to provide any protection in the matter of these conditions". Paragraph 6 of the memorandum then proceeded to state : "In respect of such conditions of service as have been specifically- dealt with in the preceding paragraphs, it win be open to the State Governments to take action in accordance with the decisions conveyed therein and so long as State Governments act in conformity with those decisions, they may assume the ....
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....the memorandum amounted to previous approval within the meaning of the proviso to section 115, sub-section (7) to the making of Mysore General Services (Revenue Subordinate Branch) Recruitment Rules, 1959. Sikri, J., as he then was, speaking on behalf of a unanimous Court said : "In our opinion, in the setting in which the proviso to section 115(7) is placed, the expression "previous approval" would include a general approval to the variation-in the con- ditions of service within certain limits, indicated by the Union Government. It has to be remembered that Art. 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to s. 115(7) limits that power, but that limitation is removable by the Central Government by giving its previous approval. In this context, we think that it could not have been the intention of Parliament that Service Rules made by States would be scrutinize in the minutes detail by the Central Government. Conditions vary from State to State and the details must be filled by, each State according to its requirements. The broad purpose underlying the proviso to s. 115 (7) of the Act ....
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.... Mysore was challenged in that case on the ground that they varied the condition of service in regard to promotion applicable to Assistants immediately, prior to 1st November, 1956 by introducing a requirement that in order to qualify for pro- motion to the cadre of Senior Assistant, they must pass certain departmental examinations and this was done without obtaining the previous approval of the Central Government as required by the proviso to section 115, sub-section (7). On the view taken in Raghavendra Rao's case,(1) the previous approval of the Central Government was already to be found in the memorandum dated 11th May, 1957 and there was no need to obtain the previous approval of the Central Government over again for the making of the Amendment Rules, 1966 but a Bench of three judges of this Court distinguished the decision in Raghavendra Rao's case,(1) by saying that : "Before the High Court great reliance was placed on the judgment of this Court in Raghavendra Rao v. Dy. Commissioner, South Kanara(1) wherein reference was made to the memorandum of the Central Government as published by the Government of Mysore on 11th May 1957 and it was argued that this amounted ....
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.... be a misreading of the judgment.... The cir- cumstances in which such a direction was given justified this Court from coming to the conclusion that 'previous approval' was given to the making of the rules. In any case in a subsequent decision of this Court in Mohammed Bhakar & Ors. v. Krishna Reddy & Ors. (supra) it was explained that generally the remarks like that contained in Raghavendra Rao's case were not meant to lay down the proposition contended for namely that the previous approval of the Central Government was not required for prescribing departmental examinations as a qualification for promotion..... There is in our view no force in the contention urged by the appellant before us that the rules of 1960 made by the Punjab Government must be deemed to have received the previous approval of the Central Government. The proviso to sub-sec. (7) of sec. 115 is clear and categorical and therefore previous approval must not be presumed but must be either categorically given or that approval becomes unmistakably apparent from the correspondence between the State, Government and the Central Government." These observations are plainly in contradiction of the decision....
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....hat takes us to the next ground of complaint of the petitioners/ appellants. The contention of the petitioners/appellants under this head of complaint was that by reason of the decision of the Government of Andhra Pradesh contained in the order dated 7th April, 1960, the Supervisors from the erstwhile Hyderabad State including the petitioners/appellants were governed by the Hyderabad Rules in the matter of promotion to a post one stage above the post of Supervisor held by them on the appointed day', i.e., 1st November, 1956. The post of Sub-Engineer having been equated with the post of Assistant Engineer, urged the petitioners/appellants, one stage promotion from the post of Supervisor was to the post of Assistant Engineer and consequently, promotion of the Supervisors from the erstwhile Hyderabad State to the post of Assistant Engineer was governed by the Hyderabad Rules and not by the Andhra Rules from and after 1st November, 1956 and promotions made on the basis of Andhra Rules must accordingly be reviewed and adjusted. This contention of the petitioners/appellants is, in our opinion, untenable and cannot be accepted. It can hardly be disputed that under the Hyderabad Rules,....
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....om the post of Supervisor contemplated by the Hyderabad Rules was to the post of Sub-Engineer and consequently, if the cadre of Sub-Engineer had continued in the reorganised State of Andhra Pradesh, there can be no doubt that, according to the decision contained in the order dated 7th April, 1960, the promotion of Supervisors from the erstwhile Hyderabad State to the post of Sub-Engineer would have been governed by the Hyderabad Rules. But with a view to bringing about integration of the Engineering Service, the cadre of Sub-Engineers was abolished by the Government of Andhra Pradesh, and therefore, so far as- promotion from the post of Supervisor was concerned, the Hyderabad Rules ceased to have application. The Hyderabad Rules could not govern promotion from the. post of Supervisor to the post of Assistant Engineer, because no such promotion was provided or contemplated in the Hyderabad Rules. In fact, if the Andhra Rules were not made applicable to Supervisors from the erstwhile Hyderabad State, all further chances of promotion for such of them as were non-graduates would have been barred, because under the Hyderabad Rules they could be promoted only to the post of Sub- Engineer....
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.... equality before law and equal protection of the laws and article 16 lays down that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16 is only an instance or incident of the guarantee of equality enshrined in article 14 : it gives effect to the doctrine of equality in the sphere of public employment. The concept of equal opportunity to be found in article 16 permeates the whole spectrum of an individual's employment from appointment through promotion and termination to the payment of gratuity and pension and gives expression to the ideal of equality of opportunity which is one of the great socioeconomic objectives set out in the Preamble of the Constitution The constitutional code of equality and equal opportunity, however, does not mean that the same laws must be applicable to all persons. It does not compel the State to run "all its laws in the channels of general legislation". It recognizes that having regard to differences and disparities which exist among men and things, they cannot all be treated alike by the application of the same laws' "To recognise marked differences th....
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....scribed by saying that what the constitutional code of equality and equal opportunity requires is that among equals, the law should be equal and that like should be treated alike. But the basic principle underlying the doctrine is that the legislature should have the right to classify and impose special burdens upon or grant special benefits to persons or things grouped together under the classification, so long as the classification is of persons or things similarly (1) Morey v.Doud, 354 U. S. 457, 473. (2) "The Equal protection of the Laws", 37 California Law Review, 341. situated with respect to the purpose of the legislation, so that all persons or things similarly situated are treated alike by law. The test which has been evolved for this purpose is-and this test has been consistently applied by this Court in all decided cases since the commencement of the Constitution-that the classification must be founded on an intelligible differentia which distinguishes certain persons or things that are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the legislation. But we have to be constantly on our gua....
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....aduates and non-graduates in the matter of promotion of Supervisors as Assistant Engineers. Now, whether we look at the unamended or the amended Andhra Pradesh Rules, it is clear that graduate Supervisors are given a preferential treatment over non-graduate Supervisors, in that two out of every three vacancies initially, and after the amendment, three out of every four vacancies in the posts of Assistant Engineers are reserved for promotion of graduate Supervisors and only the remaining one vacancy is left to be filled by promotion of non-graduate Supervisors. The question is whether this preferential treatment can be justified on the basis of any reasonable classification or it is arbitrary and irrational. The law as it stands to-day is clear that the burden is always on him who attacks the constitutionality of a legislation to show that the classification made by it is unreasonable and violative of articles 14 and 16. Has this burden been discharged by the petitioners/ appellants : have they shown that the classification of Supervisors into graduates and non- graduates for the purpose of promotion as Assistant Engineers is unrelated to the object of the Andhra Pradesh Rules, or i....
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....capable always of division into inflexible compartments". The moulds expand and shrink. The test of reasonable classification has to be applied in such case on its peculiar facts and circumstances. It may be perfectly legitimate for the administration to say that having regard to the nature of the functions and duties attached to the post, for the purpose of achieving efficiency in public service, only degree holders in engineering shall be eligible for promotion and not diploma or certificate holders. That is what happened in, State of Jammu & Kashmir v. Triloki Nath Khosa (supra) and a somewhat similar position also obtained in Union of India v. Dr. (Mrs.) S. B. Kohli. (supra) But where graduates and non-graduates are both regarded as fit and, therefore, eligible for promotion, it is difficult to see how, consistently with the claim for equal opportunity, any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to, graduates over non-graduates in the matter of fixation of such quota. The result of fixation of quota of promotion for each of the two cate- gories of Supervisors would be that when a vacancy arises in ....
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....ilege of the few and they must rule". To permit discrimination based on educational attainments not obligated by the nature of the duties of the higher post is to stifle, the social thrust of the equality clause. 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, we do not think we can be persuaded to strike down the Andhra Pradesh Rules in so far as they make differentiation between graduate and non-graduate Supervisors. This differentiation is not somethingbrought about for the first time by the Andhra Pradesh Rules. It has always been there in the Engineering Services of the Hyderabad and the Andhra States. The graduate Supervisors have always been treated as a distinct and separate class from non-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under the Hyderabad Rules, the pay scale of graduate Supervisors was Rs. 176-300,....