Mohammad Shujat, Ali & Ors. Etc vs Union Of India & Ors. Etc on 3 May, 1974

    PETITIONER:

MOHAMMAD SHUJAT, ALI & ORS. etc.

 Vs.

RESPONDENT:

UNION OF INDIA & ORS. etc.

DATE OF JUDGMENT03/05/1974

BENCH:

BHAGWATI, P.N.

BENCH:

BHAGWATI, P.N.

RAY, A.N. (CJ)

KHANNA, HANS RAJ

MATHEW, KUTTYIL KURIEN

ALAGIRISWAMI, A.

CITATION:

 1974 AIR 1631 1975 SCR (1) 449

 1975 SCC (3) 76

 CITATOR INFO :

 R 1975 SC 73 (13)

 E 1975 SC2089 (6)

 R 1976 SC 490 (166,207,212)

 F 1977 SC 713 (2)

 D 1977 SC1233 (14)

 RF 1979 SC 478 (120)

 R 1980 SC 452 (49)

 R 1981 SC1699 (12)

 R 1985 SC1272 (3)

 R 1986 SC1830 (39)

 F 1987 SC 367 (10)

 R 1987 SC 415 (8,9)

 D 1987 SC1527 (33)

 RF 1987 SC1676 (20)

 E 1989 SC 307 (5,6,8)

 R 1989 SC1247 (8)

 E&R 1989 SC1308 (3,5,6,7)

 E&D 1989 SC1624 (11)

 D 1989 SC1713 (10)

 R 1990 SC 166 (13)

ACT:

States Reorganisation Act, 1956, Proviso to Section 115(7)- Variation of
conditions of service applicable immediately before November 1, 1956, to the
disadvantage of persons allotted to serve in a State--"Previous approval"
meaning of.

Andhra Pradesh Engineering Service Rules. 1966-Non-graduate Supervisors from
Hyderabad State. promotion of-Reduction of in 18 and ultimately to 1 in 24-Sec.
115(7). Proviso to States Reorganisation Act, if attracted.

Constitution of India, 1950, Articles 14 & 16-Educational qualification valid
basis for classification-Fixation of quota for Promotion of graduate supervisors
and non-graduate supervisors, if discriminatory.

Educational qualifications, equivalence of--Decision of the Govt., when can be
interfered with,

HEADNOTE:

 The petitioners/appellants were holders of Upper Subordinate or Overseers.
Civil Engineering certificates of Osmania Engineering College and they were all
originally recruited to the cadre of Sub-Overseers in the Hyderabad Service of
Engineers in the erstwhile State of Hyderabad, and with the exception of: one,
they were promoted as Supervisors prior to 1st November 1956, when the
reorganisation of States took place under the States Reorganisation Act, 1956.
Now on the reorganisation of the State of Andhra Pradesh. the posts of
Supervisors in the erstwhile State of Hyderabad were equated with the posts of
Junior Engineers/Supervisors in the State of Andhra Pradesh in accordance with
the principles for equation of posts laid down at the Conference of Chief
Secretaries of various States held on 30th April and 1st May, 1956. Certain
criteria were laid down at this Conference for fixation of inter se seniority of
officers holding equivalent posts. The Sub-Engineers from the erstwhile State of
Hyderabad were promoted as Assistant Engineers with effect from 31st October,
1956, afternoons and they came to be allotted to the State of Andhra Pradesh as
Assistant Engineers. Though the Andhra Rules continued to govern the Engineering
Service in the State of Andhra Pradesh by Way of exception. the Government of
Andhra Pradesh, in consultation with the officer deputed by the Government of
India to advise on problems relating to integration of services. issued an order
dated 7th April, 1960. directing that all employees of the erstwhile State of
Hyderabad would be governed by the Hyderabad Rules for promotion after, 1st
November, 1956, to posts one stage above those held by them immediately prior to
1st November, 1956. It was, however, made 'clear in this order that subsequent
promotions after one stage promotion would be governed by the Andhra Rules or
the Rules made by the Government of Andhra Pradesh. The State Board of Technical
Education, a high-powered body comprising of administrators, educationists and
technical experts, at its meeting held on 1st June,. 1962, agreed with the view
expressed by the Special Committee that the US or OCE certificates of the
Osmania Engineering College could not be equated with LCE, or IME or LEE
diplomas. The Government of Andhra Pradesh then, reconsidered the question in
the light of the opinion expressed by the Special Committee and the State Board
of Technical Education and took the view that the contention of the non-
graduate, Supervisors from the erstwhile State of Hyderabad was not tenable. The
Central Government affirmed the decision of the Government of Andhra Pradesh
after giving due consideration to the representations of these non-graduate
supervisors an the basis of the recommendations of the Advisory Board.
Meanwhile, on 22nd February 1967, the Andhra Pradesh Engineering Rules,. 1966,
were made by the Governor of Andhra Pradesh in exercise of the powers conferred
under the Proviso to Article 309 of the Constitution. There was a substantial
change made by the Andhra Pradesh Rules in the mode of recruitment to the posts
of Assistant Engineers. By the new clause 2(c)(2) substituted in the place of
the old clause on 12th January, 1968, the ratio of

450

promotion between graduate Supervisors and non-graduate Supervisors was altered
and instead of two out of three vacancies being filled by graduate Supervisors,
three cut of four vacancies were to be filled by graduate Supervisors, with the
result that the cyclic order of rotation now consisted of twenty-four instead of
eighteen vacancies. The appellants, thereupon preferred writ petitions in the
High Court of Andhra Pradesh. challenging the validity of the orders dated 3rd
October, 1960, and 14th February, 1963 as also of the Andhra Pradesh Rules on
various legal and constitutional grounds. The Full Bench ,of the High Court
rejected the contentions of the, appellants and dismissed the writ petitions.
After obtaining certificates, they preferred these appeals. In W.P. No. 218 of
1970 filed in this Court under Article 32 of the Constitution, the petitioners
hold LCE diplomas. Some of them were directly recruited as Supervisors in the
State of Andhra. prior to 1st November. 1956. and others were directly recruited
as Supervisors in the State of Andhra Pradesh subsequent to ,hat date. Their
grievance was that the Andhra Pradesh Rules adversely affected them and others
directly recruited as non-graduate Supervisors.

The petitioners/appellants contended that (i) the decision of the Government of
Andhra Pradesh (which was confirmed by the Government of India) treating US and
OCE certificates of the Osmania Engineering College as inferior to US and LCE
diplomas of the College of Engineering, Guindy and LCE, LME or LEE, diplomas of
any other recognised institution and equating them with US or OCE certificates
of the College of Engineering. Guindy, was erroneous and should be set aside;
(ii) The non-graduate Supervisors from the erstwhile Hyderabad State who were,
prior to 1st November, 1956, entitled to have 50% ,of the vacancies in the posts
of Assistant Engineers available to them for promotion, are now entitled to have
only one out of twenty-four vacancies in 'the posts of Assistant Engineers
available to them for promotion. In as much as the Andhra and Andhra Pradesh
Rules varied to their disadvantage the conditions of service applicable to them
immediately prior to 1st November. 1956. they were ineffectual and void by
reason of contravention of the mandatory requirement of the proviso to Sec. 115,
sub- section (7) of the States Reorganisation Act, 1956; (iii) The promotions
made from and after 1st November. 1956. upto 22nd February 1967, should be
reviewed on the basis that the Hyderabad Rules governed the promotion of non-
graduate Supervisors from the erstwhile Hyderabad State, because the promotion
from the posts of Supervisors to the posts of Assistant Engineers from and after
1st November 1966, being one stage promotion, the promotion was governed by the
Hyderabad Rules unto 22nd February, 1967, when they were superseded by the
Andhra Pradesh Rules: and (iv) 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 and non-graduate
Supervisors for the purpose of promotion to the posts of Assistant Engineers are
violative of Article 14 of the Constitution of India and hence void.

Dismissing the appeals and the writ petitions, HELD : (1) The question in regard
to equivalence of educational qualifications is a technical question based, on
proper assessment and evaluation of the relevant. academic standards and
practical attainments of such qualifications. It is only where the decision of
the Government is shown to be based oft extraneous or irrelevant considerations
or actuated by mala fides or irrational and perverse ,or manifestly wrong that
the Court would reach out its lethal arm and strike down the decision of the
Government. It cannot be said in the present case that the view taken by the
Government of Andhra Pradesh suffered from any of these infirmities. Nothing
could be alleged on behalf of the petitioners appellants against those
constituting the High- powered expert body. It may also be noted that even in
the erstwhile State of Hyderabad itself, US and OCE certificates of Osmania,
Engineering College were not. treated on a par with LCE, LME or LEE diplomas.
[466B-E]

(ii)The Limitation imposed by the proviso to sub-section (7) of Section 115 of
the States Reorganisation Act, 1956, is that the State cannot vary the
conditions of service applicable immediately before 1st November,, 1956, to the
disadvantage of persons allotted to serve in connection with the affairs of the
State, except with the previous approval of the Central Government. Now the only
right in regard to promotion which the condition of service immediately 451

prior to 1st November, 1956, gave the non-graduate Supervisors from the
erstwhile Hyderabad State was the right to be considered for promotion to 50% of
the posts of Sub- Engineers. 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. [468C-E; H]

Mohammad Bhakar v. Krishna Reddy, 1970 Service law Reporter 768, State of Mysore
v. G. B. Purohit, C.A. No. 2281 of 1965, decided on 25th January 1967. and
Ramchandra Shankar Deodhar & Ors. v. The State of Maharashtra, W.P. No. 299 of
1969, decided on 12th November, 1973, referred to and relied on.

Now. here in the present case, all that happened as a result of the application
of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the
number of posts of Assistant Engineers available to non-graduate Supervisors
from the erstwhile Hyderabad State for promotion, was reduced from 50% to
33-1/3%. then to one in eighteen and ultimately to one in twenty four. The right
to be considered for promotion was not affected but the chances of promotion
were severely reduced. This did not constitute variation in tile condition of
service applicable immediately prior to 1st November, 1956, and the proviso to
Section 115, sub-section (7) was not attracted. [469D] Even if the application
of the Andhra Rules and the enactment of Andhra Pradesh Rules constituted
variation in the condition of service in regard to promotion applicable
immediately prior to 1st Nov. 1956. to the disadvantage: of non-graduate
Supervisors from the erstwhile Hyderabad State, there was previous approval of
the Central Government to such variation and the requirement of the proviso to
section 115, sub-section (7) was satisfied. It will be evident from the
memorandum dated 11th May, 1957, and particularly para- graph 6 read with
paragraph 3 that. so far as departmental promotion is concerned, the Central
Government-told the State Governments that they might, if they so desire, change
the conditions of service and for this purpose they might assume the previous
approval of the Central Govt. as required by the proviso to Sec. 115 sub-section
(7). The conditions of service specifically dealt with in paragraph 3 of the
'memorandum included those relating to departmental promotion and under
paragraph 6 of the memorandum, the Central Government gave its previous approval
to any alteration which the State might wish to make in the conditions of
service relating to departmental promotion, because in the opinion of the
Central Government, they did- not need to be protected. The argument against
such construction is not valid. In the setting in which the proviso to section
115(7) is placed. the expression "previous approval" would include general
approval to the variation in the conditions of service within certain limits,
indicated by the Union Government. [469G; 470EF] N.Raghavendra Rao v. Deputy
Commissioner, South Canara. Mangalore, [1964] 4 S.C.R., 549, and N. Subba Rao v.
Union of India, A.I.R. 1973 S.C. 69, followed View contra expressed in Mohammed
Bhaker's case, G D. Vaid v. State of Punjab [1972] 1 S.C.R. 896 and State of
Haryana v. S. J. Bahadur [1973] 1 S.C.R. 249 not followed.

(ii)It can hardly be disputed that tinder the Hyderabad Rules, the Post on,--
stage above that of Supervision was the post of Sub-Engineer and it was only
from the post Sub- Engineer that promotion lay to the post of Assistant
Engineer. Now the cadre of Sub-Engineers having been abolished by the Government
of Andhra Pradesh from 1st November. 1956 with a view to absorb and' assimilate
officers holding the post of Sub-Engineer immediately prior to 1st November
1956, in the Engineering service of the State of Andhra Pradesh, the Government
promoted these officers as Assistant Engineers and they were placed en bloc
below the Assistant Engineers of the Telangana and Andhra regions in seniority.
But this does not mean that the post of Sub-Engineer was equaled with that of
Assistant Engineer in the State of Andhra Pradesh. The post of Sub-Engineer was
abolished and there was no question of equating it with the post of Assistant
Engineer. The post of Assistant Engineer was, therefore, not a post of one stage
promotion from the post of Supervisor. Contention based on rule 42(h)(i) of the
Andhra Pradesh Rules has-also to be rejected, because, in the first place, the
Hyderabad Rules did not provide for promotion directly from the post of
Supervisor to the post of Assistant

452

Engineer, and secondly, under the Hyderabad Rules, a non- graduate Supervisor
would not have been qualified for promotion to the post of Assistant
Engineer.[1474H; 475A-D; 476E-F]

(iv)This Court has held that educational qualification could form a valid basis
for classification. [479C] State of Mysore v. Narasing Rao [1968] 1, S.C.R. 407,
(Union of India v. Dr. (Mrs.) S. B. Kohli, [1973] 3 S.C.C. 592, and State of
Jammu and Kashmir v. Triloki Nath Khosa, [1974] 1 S.C.C. 19, relied on. Morey v.
Doud, 354

U.S. 457, 473 referred to.

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 fixation of such quota. The result of
fixation of quota of promotion for each of the two categories of Supervisors
would be that when a vacancy arises in the post of Assistant Engineer, which.
according to the quota is reserved for graduate Supervisors, a non-graduate
Supervisor cannot be promoted to that vacancy, even if he is senior to all other
graduate Supervisors and more suitable than they. His opportunity for promotion
would be limited to vacancies available for non-graduate Supervisors. That would
,clearly amount to denial of equal opportunity to him. But even so, this Court
,cannot 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 something brought 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 under the Andhra Rules and they have never
been integrated into one class. In fact. under the Andhra Rules, a different
nomenclature of Junior Engineers was given to graduate Supervisors. The same
differentiation into two classes also persisted in the reorganised State ,of
Andhra Pradesh with regard to the pay scale and also in the common gradation
list of Supervisors finally approved by the Government of India. The two
categories of Supervisors were thus never fused into one class, and no question
of unconstitutionality could arise by reason of differential. treatment being
given to them. [480C-D; 481C-D; F-G]

JUDGMENT:

ORIGINAL JURISDICTION : Writ Petitions Nos. 385 of 1969 and 218 of 1970.

Petitions under Art. 32 of the Constitution of India. Civil Appeals Nos. 601 to
605 and 954, 955 of 1972. From the judgment and order dated the 21st/29th
January 1972 of the Andhra Pradesh High Court in W. Ps. Nos. 169/68, 1721,
3407/69, 3784 & 5677/70, and 626 and 47 of 1970 respectively.

H.S. Gururaja, S. Markandeya and P. K. Pillai, for the petitioners/ appellants.

M.K. Ramamurthy and B. Parthasarathy, for the petitioners/ respondents.

S. P. Nayar and P. C. Kapur,for respondents. P. Ram Reddy and A. V. V. Nair, for
respondents. P. Ram Reddy and P. P. Rao, for the respondents. M. S. K. Sasthi
and B. Parthasarthy, for respondents. Y. S. Chitale, M. J. Rao, P. L. N. Sharma
and G. N. Rao, for the intervener/respondents.

The Judgment of the Court was delivered by

BHAGWATI, J.-These writ petitions and appeals are broadly divisible into two
groups, one group consisting of Writ Petition No. 385 of

453

1969 and Civil Appeals Nos. 601-605 and 954-955 of 1972 and the other consisting
of Writ Petition No. 218 of 1970. We shall first state the facts in regard to
Writ Petition No. 385 of 1969 and Civil Appeals Nos. 601-605 and 954-955 of 1972
and then proceed to deal with Writ Petition No. 218 of 1970 which raises a
slightly different dispute. Writ Petition No. 385 of 1969 and Civil Appeals Nos.
601-605 and 954-955 of 1972 concern a dispute which has been going on 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 Engineers, while Class 11 consisted of posts
of Sub- Engineers. The Subordinate Service consisted, inter alia, of posts of
Supervisors, Sub-Overseers, Tracers, Stores Managers etc. in descending order of
rank. The posts in the State Service were gazetted posts, while those in the
Subordinate Service were non-gazetted. The rules of recruitment to the posts in
State Service as well as Subordinate Service were made by the Rajpramukh of the
Hyderabad State by a notification dated 28th May, 1954 in exercise of powers
conferred under the proviso to article 309 of the Constitution. The posts of
Sub-Overseers, according to these rules, which may for the sake of convenience
be described as the Hyderabad Rules, were to be filled by direct recruitment
from amongst persons who possessed LCE, LME or LEE or equivalent diploma or
certificate of any recognized institution. There was a certificate course called
the Upper Subordinate (hereinafter referred to as US) Course which was conducted
by the Osmania Engineering College upto 1951 and thereafter from 1952 it was
replaced by another course called the Overseers Civil Engineering (hereinafter
briefly referred to as OCE) Course which was also a certificate course conducted
by the Osmania Engineering College. The US and OCE certificates awarded by the
Osmania Engineering College were regarded as sufficient qualifications for
direct recruitment to the posts of Sub- Overseers. The posts next above those of
Sub-Overseers in the hierarchy were those of Supervisors. Fifty percent of the
posts of Supervisors were to be filled by direct recruitment from amongst
persons who were either graduates in civil or mechanical engineering of a
recognized university or possessed "a diploma or a certificate from an
institution recognized by the Institute of Engineers (India) as exempting from
Parts A and B of its As-

454

sociated Membership Examination", while the remaining fifty percent were to be
filled by promotion of Sub-Overseers subject to the condition that Sub-Overseers
who held only US or OCE certificates should have put in at least six years
service. It was common ground between the parties that US and OCE certificates
of Osmania Engineering College were not regarded as sufficient to qualify a
person for direct recruitment as Supervisor, while LCE, LME and LEE diplomas
were accepted as sufficient. There was only one exception to this rule and 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 posts of Sub-Engineers constituted the
next higher stage in the hierarchy of the Engineering Service. They were Class
II posts carrying a pay-scale of Rs. 250400. The recruitment to the posts of
Sub-Engineers was to be wholly by promotion from Supervisors. Fifty percent of
the posts of Sub-En- gineers were to be filled by promotion of Supervisors who
were graduates in engineering and fifty percent by promotion of Supervisors who
held LCE. LME or LEE or any other equivalent diploma or certificate or US or OCE
certificate of Osmania Engineering College. There, were two conditions which
were required to be satisfied before a Supervisor could be eligible for
promotion : one was that if he was a adulate. he should have put in at least six
years' service as Supervisor and if lie was not a graduate, he should have put
in at least fifteen years, service as Supervisor, and the other was that he
should have passed the departmental examination for Assistant Engineers. So far
as the posts of Assistant Engineers next above those of Sub-Engineers were
concerned, seventy-five percent were to be filled by direct recruitment and only
tile remaining twenty-five percent by promotion of Sub-Engineers. But all Sub-
Engineers were not eligible for promotion as Assistant Engineers only those Sub-
Engineer who were graduates and who were below ;.he age of forty-five years were
qualified to be promoted. The net result of these provisions was that those who
merely held US or OCE certificate of Osmania Engineering College were, barring
the limited and exceptional cases already referred to, not eligible for direct
recruitment to the posts of Supervisors; they were eligible for initial
appointment only in the cadre of Sub-Overseers; they could be promoted to fifty
percent of the vacancies in the posts of Supervisors only after they had put in
a minimum service of six years and then also they had to put in a

455

minimum service of fifteen years as Supervisors before they could be eligible
for being promoted as Sub-Engineers and there the chances of promotion available
to them came to an end, for they could not go further and be promoted as
Assistant Engineers. The petitioners/appellants were holders of US or OCE
certificates of Osmania Engineering College and they were all originally
recruited to the cadre of Sub-Overseers, and, with the exception of one, they
were promoted as Supervisors prior 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 Constitution- governed the
constitution and recruitment to the Engineering Service-in the State of Andhra.
The Engineering Service in the State of Andhra was divided into State Service
and Sub- ordinate Service. The State Service comprised the posts of Chief
Engineer, Superintending Engineers, Executive Engineers (Special Grade),
Executive Engineers (Ordinary Grade) and Assistant Engineers, while the
Subordinate Service comprised inter alia the Rosts of Supervisors, Overseers,
Head Draftsmen and Civil Draftsmen. It will be- seen that there were no posts of
Sub-Overseers in the State of Andhra but instead there were posts of Overseers.
The qualifications prescribed for appointment to the posts of Overseers were any
one of the following : (1) degree in engineering, civil or mechanical, of
Madras, Andhra or Anamalai University, to which the name of Osmania University
was added after the addition to the Telengana area to the State of Andhra or
B.Sc. (Eng.) degree of Banaras Hindu University, (2) diploma in engineering of,
the College of Engineering. Gundy, which was regarded as equivalent to degree in
engineering, (3) US of. LCE diploma of the College of Engineering, Guindy or LCE
or LME diploma awarded by the Technological Diploma Examination Board, Madras or
Andhra. (4) certificate of having passed sections A and B of AMIE (Ind.)
Examination and (5) Lower Subordinate (herein- after referred to as LS) or OCE
certificate of the College of Engineering Guindy. The next above in the
hierarchy were the posts of Supervisors. The appointments to the posts of
Supervisors could be made either by direct recruitment or by promotion of
Overseers or Civil Draftsmen I, II and III Grades. The necessary qualifications
for eli- 11-Ll77Sup.CI/75

456

gibility for appointment as Supervisor were the same as those for appointment as
Overseer with this difference that LS or OCE certificate of the College of
Engineering, Guindy was not regarded as sufficient for direct recruitment as
Supervisor. It will thus be seen that according to Andhra Rules, the minimum
qualification necessary for direct recruitment to the posts of Supervisors was
US or OCE diploma of the College of Engineering, Guindy or LCE or LME diploma of
the Technological Diploma Examination Board, Madras or Andhra. The Supervisors
who possessed University degree in engineering or diploma of the College of
Engineering, Guindy, which, 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 College of Engineering, Guindy and having put in not less-
than twenty years' service as Supervisors and (iii) Draftsmen First Grade and
Head Draftsmen possessing the same qualifications as those mentioned in clause
(ii) above. It may be noted that in the State of Andhra there were no posts of
Sub-Engineers and the promotion- was direct from the posts of Supervisors to the
posts of Assistant Engineers. But the posts of Assistant Engineers were Class 11
posts carrying a pay-scale of Rs. 250-400 unlike the posts of Assistant
Engineers in the Hyderabad State which were Class 1 posts carrying a pay- scale
of Rs. 300-600. Since on the reorganization of the States, the State of Andhra
did not cease to exist but continued as such with the territories of the
Telengana area added to it and the State of Andhra Pradesh was merely a new name
given to it, the Engineering Service of the State of Andhra continued as the
Engineering Service of the State of Andhra Pradesh and the Madras Engineering
Service Rules dated 28th September, 1953 and the Madras Engineering Subordinate
Service Rules dated 30th September, 1953 (hereinafter collectively referred to
as the Andhra Rules) continued to govern the Engineering Service in the State of
Andhra Pradesh from and after 1st November, 1956. Now on the reorganization of
the State of Andhra Pradesh, the posts of Supervisors in the erstwhile State of
Hyderabad were equated with the posts of Junior-Engineers/Supervisors in the
State of Andhra Pradesh in accordance with the principles for equation of posts
laid down at the conference of Chief Secretaries of various States held on 30th
April and 1st May, 1956. Certain criteria were also laid down 457

at this conference for fixation of inter se seniority of officers holding
equivalent posts and on the basis of these criteria a provisional common
gradation list of Junior Engineers/Supervisors from Telengana and Andhra regions
was approved by an order dated 20th April, 1963 made by the Government of Andhra
Pradesh. This provisional common gradation list was communicated to the Junior
Engineers/Supervisors after the High Court of Andhra Pradesh was approached for
necessary orders in that behalf. The petitioners/appellants did not object to
the positions assigned to them in the provisional common gradation list but the
principal representation made by them was that promotions which had been made
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 Telengana region. The petitioners/appellants being merely
holders of US or LCE certificate of Osmania Engineering College were naturally
in the second part of the final gradation list relating to non- graduate
Supervisors.

So far as the posts of Sub-Engineers in the erstwhile State of Hyderabad were
concerned, there was difficulty in assimilating these posts in the set up of the
Engineering Service in the State of Andhra Pradesh as there were no posts in the
Andhra region corresponding to the posts of Sub-Engineers. The Government of
Andhra Pradesh, therefore, by an order dated 24th May, 1957, directed that fresh
recruitment to the posts of Sub-Engineers should be stopped with a view to doing
away with this category of posts. No fresh recruitment to the posts of Sub-
Engineers was accordingly made from and after 1st November, 1956. But the
question was as to what should be done with regard to the officers holding the
posts of Sub-Engineers immediately prior to 1st November 1956 and how they
should be integrated in the Engineering Service of the State of Andhra Pradesh.
Pending the determination of this question, the Government of Andhra Pradesh by
an order dated 23rd March, 1959 promoted the Sub-Engineers to act temporarily as
Assistant Engineers' Thereafter the question was considered by the Advisory
Committee and on the basis of the recommendations made by the Advisory
Committee, an order dated 22nd December, 1960 was issued by the Government of
Andhra Pradesh laying down certain principles to be followed in regard to
absorption and integration of the 458

Sub-Engineers. These principles were that the Sub-Engineers working as such
immediately prior to 1st November, 1956 should be promoted as Assistant
Engineers with effect from 31st October, 1956 afternoon and included in the list
of Assistant Engineers of both the regions as on 1st November, 1956 and assigned
ranks after the Assistant Engineers in the combined list, and out of these Sub-
Engineers, those who were eligible for promotion as Assistant Engineers under
the Hyderabad Rules should be given the Telengana scale of pay of Assistant
Engineers and those who were not so eligible should be given the Andhra scale of
pay of Assistant Engineers. The necessary directions in implementation of these
principles were given by the Government of Andhra Pra- desh by an order dated
31st August, 1961. The result was 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 both the regions in the common gradation list.

The Andhra Rules, as we have already seen, continued to govern the Engineering
Service in the State of Andhra Pradesh and, therefore, it would seem that
promotions in the Engineering Service from and after 1st November, 1956 would
have been required to be made in accordance with the Andhra Rules. But the
Government of Andhra Pradesh, in consultation with the officer deputed by the
Government of India to advise on problems relating to integration of services,
issued an order dated 7th April, 1960 directing, by way of exception, that all
employees of the erstwhile State of Hyderabad would be governed by the Hyderabad
Rules for promotion after 1st November, 1956 to posts one stage above those held
by them immediately prior to 1st November, 1956. It was, however, made clear in
this order that subsequent promotions after one stage promotion would be
governed by the Andhra Rules or the Rules made by the Government of Andhra
Pradesh. There was considerable controversy before us as to what would be one
stage 459

promotion in case of Supervisors from Telengana region; whether it would include
promotion from the posts of Supervisors to the posts of Assistant Engineers. The
petitioners/appellants contended that the posts of Sub- Engineers having been
equated to the posts of Assistant Engineers, promotion from the posts of
Supervisors to the posts of Assistant Engineers was one stage promotion governed
by the Hyderabad Rules, while, according to the respondents, it was not one
stage promotion and in any event it was governed by the Andhra Rules and not by
the Hyderabad Rules. We shall presently examine this controversy but before we
do so we may complete the narration of facts re- levant to this issue. The next
event was that the Andhra Pradesh State and Subordinate Service Rules, 1962 were
made by the Governor of Andhra Pradesh by an order dated 7th March, 1962. Clause
(h) (i) was introduced in Rule 42 of these Rules by an order dated 21st July,
1965 and that clause was in the following terms :

       "Nothing in these rules or in the Special Rules shall disqualify or shall
be deemed to have ever disqualified an employee of the erstwhile Government of
Hyderabad who was allotted to the State of Andhra Pradesh under section 115 of
the States Reorganisation Act, 1956 for promotion or recruitment by transfer, on
or after the 1st November, 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 Andhra Rules, only 33 1/3rd. percent of the posts of Assistant Engineers
were available for promotion to non-graduate Supervisors. The ratio of one to
one in the matter of promotion between graduate Supervisors and non- graduate
Supervisors, which prevailed in the erstwhile State of Hyderabad, was thus
altered to two to one when the Supervisors from the erstwhile State of Hyderabad
came to be allotted to the State of Andhra Pradesh. The petitioners/appellants
did not have any serious grievance about this alteration in the ratio because
otherwise they were treated on a par with non-graduate Supervisors from the
Andhra region, US or OCE certificate of Osmania Engineering College held by them
being regarded as equivalent to US or LCE diploma of the College of Engineering,
Guindy and LCE 460

or LME diploma of the State Board of Technical Education, Andhra or Andhra
Pradesh. But this state of affairs did not continue for long, because the
Government of Andhra Pradesh by an order dated 3rd October, 1960 decided that
OCE certificate-and that would also apply to US certificate because OCE course
was the same as the earlier US course-of the Osmania Engineering College be
recognised as equivalent to OCE certificate, which was the same as LS
certificate, of the College of Engineering, Guindy. This decision evoked a storm
of protest from the non-graduate Supervisors of the erstwhile State of Hyderabad
because the effect of this decision was that, if they held US or OCE
certificates of the Osmania Engineering College, which most of. them did, they
would have to put in twenty years' service as Supervi- sors for being eligible
for promotion, whereas Supervisors from Andhra region, most of whom possessed
LCE, LME or LEE diploma would qualify for promotion on completion of five years'
service--.which was later on increased to ten years' service-if directly
recruited and fifteen years' service, if promoted from the rank of Overseers.
The ion-graduate Supervisors from the erstwhile State of Hyderabad made
representations to the Government of Andhra Pradesh as well as the Government of
India and contended that the parity which prevailed till then between US or OCE
certificates of the Osmania Engineering College, on the one hand, and LCE, LME
or LEE diplomas on the other, should not be set at naught. The Government of
Andhra Pradesh thereupon constituted a Special Committee 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 LCE or LME or LEE diplomas. The Government of Andhra Pradesh
then reconsidered the question in the light of the opinion expressed by the
Special Committee and the State Board of Technical Education and taking the view
that the contention of the non-graduate Supervisors from the erstwhile State of
Hyderabad was not tenable, the State of Andhra Pradesh passed an order dated
14th February, 1963 which was in the following terms "(i) In modification of the
orders issued in G.O. Ms. No. 2400 P.W.D. dated 3-10-1960 the Government
recognise the qualification of US and O.C.E., courses of

       461

       Osmania University also in addition to the qualifications already
prescribed in the Andhra Rules and adopted in Andhra Pradesh for purpose of
recruitment to the posts of Overseers.

       (ii) The contention of the Hyderabad Engineer's Association to recognise
U.S. and O.C.E. qualifications as equivalent to L.C.E., L.M.E. and L.E.E.
Diplomas of the Osmania University or L.C.E. Diploma of the State Board of
Technical Education is not tenable as the former qualifications are definitely
lower than the latter diploma mentioned above and accordingly direct that they
cannot be accepted as equivalent to one another."

The depressing effect brought about by the order dated 3rd October 1960 on the
promotion of Supervisors holding US and OCE certificates of the Osmania
Engineering College to the posts of Assistant Engineers was thus confirmed under
the order dated 14th February, 1963. This led to the filing of Writ Petitions
Nos. 853 of 1962 and 735 of 1963 in the High Court of Andhra Pradesh challenging
the validity of the orders dated 3rd October, 1960 and 14th February, 1963, but
the High Court dismissed these writ petitions as premature, suggesting that the
question of equivalence of US and OCE certificates of the Osmania Engineering
College may be referred to the Government of India. The Government Pleader
appearing on behalf of the State agreed to this suggestion, though according to
the State this question did not strictly fall within the terms of section 115 of
the States Reorganisation Act, 1956. The Additional Secretary to the Government
of Andhra Pradesh accordingly addressed a letter dated 9th January, 1965 to the
Secretary to the Government of India, Ministry of Home Affairs explaining the
reasons why the Government of Andhra Pradesh had decided not to treat US and OCE
certificates 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 them as equivalent only to LS or OCE certificates
of the College of Engineering, Guindy was irrational or perverse, and in any
event, it was not shown by the petitioners that US and OCE certificates

462

of the Osmania Engineering College were equivalent to LCE, LME or LEE diplomas
and accordingly dismissed the writ petitions. The petitioners in these writ
petitions, on rejection of their applications for leave to appeal by the High
Court, preferred applications for special leave, being Special Leave Petitions
Nos. 749, 751, 773 and 729 of 1968, but these applications for special leave
were rejected by this Court by order made on 27th February, 1969. Meanwhile, on
22nd February, 1967, the Andhra Pradesh En- gineering Service Rules, 1966
(hereinafter referred to as Andhra Pradesh Rules) were made by the Governor of
Andhra Pradesh in exercise of the powers conferred under the Proviso to article
309. The Andhra Pradesh Rules superseded the Hyderabad Rules as also the portion
of the Andhra Rules consisting of the Madras Engineering Service Rules. There
was a substantial change made by the Andhra Pradesh Rules in the mode of
recruitment to the posts of Assistant Engineers; Clause 2(c) (1) of the Andhra
Pradesh Rules provided that 37-1/2% of the vacancies in the posts of Assistant
Engineers shall be filled by direct recruitment while clause (2) (c) directed
that the remaining 62-1/2% vacancies shall be filled in the following manner

       Out of every 3 vacancies successively arising in the posts of Assistant
Engineers, so far as qualified and suitable candidates are

       available, the first two shall be filled or reserved to be filled by
recruitment by

       transfer from among the Junior Engineers specified under Group 'A', in
the following table and the third vacancy shall be filled or reserved to be
filled by recruitment by

       transfer from among those specified under Group 'B' thereof.

    GROUP 'A'

       Junior Engineers of the Andhra Pradesh Engineering Subordinate Service.

    GROUP 'B'

       Supervisors, draughtsmen Special Grade and draughtsmen L. Grade of the
A.P. Engg. Subordinate Service.

       Provided that out of every three vacancies of Assistant Engineers to be
filled by

       recruitment by transfer from among Supervisors or Draughtsmen, so far as
qualified and suitable candidates are available, the first two shall be filled
by recruitment by transfer from 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.

463

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 of the College of Engi-

neering, Hyderabad.

This clause was substituted by a new clause 2(c) (2)by an amendment made in the
Andhra Pradesh Rules by a notification dated 12th January, 1968 and by the new
clause thus substituted the ratio of promotion between graduate Supervisors and
non-graduate Supervisors was altered and instead of two out of three vacancies
being filled by graduate Supervisors, three out of four vacancies were to be
filled by graduate Supervisors, with the result that the cyclic order of
rotation now consisted of twenty-four vacancies instead of eighteen. The net
effect of this amendment was that instead of one out of- eighteen. only one out
of twenty-four vacancies became available for promotion to Supervisors from the
erstwhile Hyderabad holding US or OCE certificates of the Osmania Engineering
College and that too, when their turn arrived in the cyclic order. The
appellants thereupon preferred writ petitions in the High Court of Andhra
Pradesh challenging the validity of the orders dated 3rd October, 1960 and 14th
February, 1963 as also of the Andhra Pradesh Rules on various legal and
constitutional grounds. Having regard to the importance of the question involved
these writ petitions were referred to a Full Bench and by a judgment dated 21st
July, 1972, the Full Bench rejected the contentions of the appellants and
dismissed the writ petitions. There were also two other cases before the Full
Bench, namely, Writ Petition No. 470 of 1970 and Writ Appeal No. 626 of 1970,
and they were also disposed of in the same manner by the Full Bench by a
separate judgment dated 29th January, 1972. The appellants, after obtaining
certificates from the High Court, preferred Civil Appeals Nos. 601-605 and
954-955 of 1972 in this Court. The petitioners also filed Writ Petition No. 385
of 1969 directly in this Court under Art.. 32 of the Constitution claiming
substantially the same reliefs as were sought in the writ petitions in the High
Court. 464

The petitioners/appellants urged the following contentions in support of the
writ petition and appeals: A. The decision of the Government of Andhra Pradesh
contained in the orders dated 3rd October, 1960 and 14th February, 1963-
confirmed by the Government of India by its letter dated 17th March,
1966-treating US and OCE certificates of the Osmania Engineering College as
inferior to US and LCE diplomas of the 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 promotion. The Andhra Rules
and Andhra Pradesh Rules, thus, varied to their disadvantage the condition of
service applicable to them immediately prior to 1st November, 1956 and since
these Rules were applied and/ or enacted without the previous approval of the
Central Government, they were ineffectual and void to the extent to which they
made such variations, by reason of contravention of the mandatory requirement of
the proviso to section 115, sub-section (7). C. The promotion from the posts of
Supervisors to the posts of Assistant Engineers from and after 1st November,
1956 was one stage promotion, and therefore, by reason of the order dated 7th
April, 1960 as also under rule 42 (h) (i) of the Andhra Pradesh State and
Subordinate Service Rules, 1962, it was governed by the Hyderabad Rules upto
22nd February, 1967 when the Hyderabad Rules were superseded by the Andhra
Pradesh Rules. The promotions made by the Government of Andhra Pradesh to the
posts of Assistant Engineers from and after 1st November, 1956 were, however, on
the basis of the Andhra Rules, which provided a more

       465

       unfavorable ratio of promotion for non- graduate Supervisors than the
Hyderabad Rules. The petitioners/ appellants were, therefore, entitled to claim
that promotions made from and after 1st November, 1956 upto 22nd

       February, 1967 should be reviewed on the basis that the Hyderabad Rules
governed the promotion of non-graduate Supervisors from the erstwhile Hyderabad
State.

       D. The Andhra Pradesh Rules in so far as they discriminate amongst
different categories of non-graduate Supervisors by reserving a vacancy for each
category of non-graduate Supervisors in the cyclic order of rotation for the
purpose of promotion in the posts of Assistant Engineers contravene the equality
clause contained in article 14 and are to that extent void.

We may now state the facts relating to Writ Petition No. 218 of 1970. The
petitioners in this writ petition hold LCE diploma and some of them were
directly recruited as Supervisors in the State of Andhra prior to 1st November,
1956 and the others were directly recruited as Supervisors in the State of
Andhra Pradesh subsequent to that date. Since the Andhra Pradesh Rules adversely
affected the peti- tioners and other directly recruited non-graduate
Supervisors, the petitioners filed the present writ petition in this Court under
article 32 of' the Constitution 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 urged on behalf of the
petitioners/appellants in these writ petitions and appeals.

       Re. A

This contention has been adequately dealt with in the judgment given by the
division Bench of the Andhra Pradesh High Court on 23rd

466

February, 1960 in Writ Petition No.. 645 of 1967 and other allied petitions and
the judgment of the Full Bench impugned in these appeals. We are substantially
in agreement with the reasons which have weighed with the Division Bench and the
Full Bench in rejecting this contention. It must be noted that the question in
regard to equivalence of educational qualifications is a technical question
based on proper assessment and evaluation of the relevant academic standard, and
,practical attainments of such qualifications and where the decision of the
Government is based on the recommendation of an expert body which possesses the
requisite knowledge, skill and expertise for adequately discharging such a
function, the Court, uninformed of relevant data and unaided by the technical
insights necessary for the purpose of determining equivalence, would not lightly
disturb the decision of the Government. It is only where the decision of the
Government is shown to be based on extraneous or irrelevant considerations or
actuated by mala fides or irrational and perverse or manifestly wrong that the
Court would reach out its lethal arm and strike down the decision of the
Government. Here in the present case it cannot be said that the view taken by
the Government of Andhra Pradesh that US and OCE certificates of the Osmania
Engineering College were not equivalent to US or OCE diploma of the College of
Engineering, Guindy or LCE, LME or LEE diploma of any other recognised
institution suffered from any of these infirmities. It was based on the re-
commendation of an expert high powered body like the State Board of Technical
Education consisting of distinguished administrators, educationists and
technical experts against whom nothing could be alleged on behalf of the
petitioners/appellants. The State Board of Technical Education included inter
alia Principals of different engineering ,colleges in the State, the Secretary
of the Regional Committee of the All India Committee on Technical Education,
retired Chief Engineers as also Chief Engineers in office who would be expected
to be familiar with the academic standards and practical content of the
different qualifications 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 of the Osmania Engineering
College was required to put in at least six years service 467

before he could be eligible for promotion as Supervisor while a Sub-Overseer
holding LCE or LME diploma did not have to put in any minimum qualifying service
for the purpose of promotion as Supervisor. Secondly, US or OCE certificate of
the Osmania Engineering College was regarded as sufficient qualification only
for recruitment to the post of Sub- Overseer, while LCE or LME diploma qualified
for recruitment not only to the post of Sub-Overseer but also to the post of
Supervisor. It is, therefore, not possible to overturn the decision of the
Government of Andhra Pradesh denying equivalence of US and, OCE certificates of
the Osmania Engineering College with LCE, LME or LEE diplomas. It may be noted
that the Central Government also affirmed the decision of the Government of
Andhra Pradesh by its letter dated 17th March, 1966. Even if it be assumed that
the Central Government had the exclusive power under the States Reorganisation
Act, 1956 to bring about integration of services in the reorganised State of
Andhra Pradesh, this decision of the Central Government, contained in the letter
dated 17th March, 1966 is sufficient to meet. the requirement of the statute and
it must be upheld for the same reasons as the decision of the Government of
Andhra Pradesh. There was a further ground of attack levelled against the
decision of the Central Government, albeit faintheartedly, and that was that the
decision of the Central Government was arrived at solely on the basis of the
communication dated 9th January, 1965 addressed by the Additional Secretary to
the Government of Andhra Pradesh to the Secretary to the Government of India,
Ministry of Home Affairs without giving any opportunity to the non-graduate
Supervisors from the erstwhile Hyderabad State to put forward their case. This
charge is plainly unsustainable as it is evident from paragraph 9 of the
affidavit dated 27th July, 1970 filed by K. P. Singh, Under Secretary to the
Government of India, Ministry of Home Affairs in reply to Writ Petition No. 85
of 1969, and it can hardly be disputed, that the representations made, by the
non-graduate Supervisors from the erstwhile Hyderabad State against the decision
of the Government of Andhra Pradesh contained in the Order dated 3rd October,
1960 were forwarded to the Central Government and 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."

       468

       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 :

       "Provided that the conditions of service applicable immediately before
the appointed day to the case of any person referred to in sub-section (1) or
sub-section (2) shall not be varied to his disadvantage except with the previous
approval of the Central Government." The limitation imposed by the proviso is
that the State cannot vary the conditions of service applicable immediately
before 1st November, 1956 to the, disadvantage of persons allotted to serve in
connection with the affairs of the State, except with the previous approval of
the Central Government. The question which, therefore, arises for consideration
is whether the application of the Andhra Rules for promotion from the posts of
Supervisors to the posts of Assistant Engineers from and after 1st November,
1956 and the enactment of the Andhra Pradesh Rules on 22nd February, 1967
together with their amendment on 12th January, 1968 varied to their disadvantage
the condition of service in regard to promotion applicable to non-graduate
Supervisors from the erstwhile Hyderabad State immediately prior to first
November, 1956, without the prior approval of the Central Government. 'Now the
only right in regard to promotion which the condition of service immediately
prior to 1st November, 1956 gave to non-graduate ,Supervisors from the erstwhile
Hyderabad State was the right to be considered for promotion to fifty per cent
of the posts of Sub- Engineers but the argument of the petitioners/appellants
was that the posts of Sub-Engineers were equated with those of Assistant
Engineers, and therefore, their right to be considered for promotion under the
condition of service applicable to them immediately prior to 1st November, 1956
extended to fifty per cent of the posts of Assistant Engineers. This was the
premise which formed the basis of the contention of the petitioners/appellants
that the condition of service applicable to non-graduate Supervisors from the
erstwhile Hyderabad State immediately prior to 1st November, 1956 was varied to
their disadvantage without the prior approval of the Central Government. We will
assume with the petitioners/appellants that the premise is correct, but even so,
.there are at least two answers which are sufficient to repel this contention of
the petitioners/appellants.

In the first place, it is not correct to say that there was any variation in the
condition of service in regard 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

       469

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 seniority and as a result of this
change, the respondents went down in seniority and became very junior. This, it
was urged, affected their chances of promotion which were protected under the
proviso to section 115, sub-section (7). This contention was negatived and
Wanchoo, J., as he then was, speaking on behalf of this Court observed: It is
said on behalf of the respondents that as their chances of promo- tion have been
affected their conditions of service have been changed to their disadvantage. We
see no force in this argument because chances of promotion are not conditions of
service." Now, here in the present case, all that happened as a result of the
application of the Andhra Rules and the enactment of the Andhra Pradesh Rules
was that the number of posts of Assistant Engineers available to non-graduate
Supervisors from the erstwhile Hyderabad State for promo- tion, was reduced :
originally it was fifty per cent, then it became thirty-three and one third per
cent, then one in eighteen and ultimately one in twenty-four. The right to be
considered for promotion was not affected but the chances of promotion were
severely reduced. This did not constitute variation in the condition of service
applicable immediately prior to 1st November, 1956 and the proviso to section
115, sub-section (7) was not attracted. This view is completely supported by the
decision, of a Constitution Bench of this Court in Ramchandra Shankar Deodhar &
Ors. v. The State of Maharashtra.(3)

Secondly, even if the application of the Andhra Rules and the enactment of
Andhra Pradesh Rules constituted variation in the condition, of service in
regard to promotion applicable immediately prior to 1st November, 1956 to the
disadvantage of non-graduate Supervisors from the erstwhile Hyderabad State,
there was previous approval of the Central Government to such variation and the
requirement of the pro- viso to section 115, sub-section (7) was satisfied. On
11th May, 1957, the Central, Government addressed a memorandum No. S.O. SRDI-
IARM-57 to all State Governments. The Central Government pointed out in
paragraph 2 of the memorandum that the question of protection to be afforded in
the matter of various service conditions to personal affected by reorganization
was discussed with the State representatives at conferences held with them and
after careful consideration of the views expressed at these conferences, 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 470

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
Central Government's approval in terms of the proviso to sub-section (7) of
section 115 in the States ReOrganisation Act. In all other cases involving
condition of service not specifically covered in the preceding paragraphs, it
will be necessary for the State Government in terms of the above provisions
before any action is taken to vary the pre- vious conditions of service of an
employee to his disadvantage.

It will be evident from the memorandum and particularly paragraph 6 read with
paragraph 3 that, so far as departmental promotion is concerned, the Central
Government told the State Governments that they might, if they so desire, change
the conditions of service and for this purpose they might assume the previous
approval of the Central Government as required by the proviso to section 115,
subsection (7). The conditions of service specifically dealt with in paragraph 3
of the memorandum included those relating to departmental promotion and under
paragraph 6 of the memorandum, the Central Government gave its previous approval
to any alteration which the State Governments might wish to make in the
conditions of service relating to departmental promotion, because, in the
opinion of the Central Government, they did not need to be protected. The only
argument which could be advanced against this construction of the memorandum was
that a general omnibus approval granted in advance to any variation which might
be made in the conditions of service relating to departmental promotion could
not be regarded as 'previous approval' within the meaning of the proviso to
section 115, sub- section (7). But this argument stands concluded by the
decision of a Constitution Bench of this Court in N. Raghavendra Rao v. Deputy
Commissioner, South Kanara, Mangalore.(1) The question which arose for
determination in that case was whether the Mysore General Services (Revenue
Subordinate Branch) Recruitment Rules, 1959 were made with the previous approval
of the Central Government under the proviso to section 115, sub-section (7). The
respondents relied on the memoran-

       471

dum as amounting to previous approval of the Central Government to the
alteration in the conditions of service relating to promotion made by the Mysore
General Service (Revenue Subordinate Branch) Recruitment Rules, 1959. This
contention of the respondents was accepted and it was held by this Court that
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 was to ensure that the conditions of service should not
be changed except with the prior approval of the Central Government. In other
words, before embarking on varying the conditions of service, the State
Governments should obtain the concurrence of the Central Government. In the
memorandum mentioned above, the Central Government, 'after examining various
aspects, came to the conclusion that it would not be appropriate to provide for
any protection in the matter of travelling allowance, discipline control,
classification, appeal, conduct, probation and departmental promotion. In our
opinion, this amounted to previous approval within the

       proviso to s. 115(7). It may be mentioned that by this memorandum the
State Governments were required to send copies of all new rules to the Central
Government for its information. Therefore, in our opinion, there is no force in
the first contention of the learned counsel for the petitioner. and we hold that
the rules were validly made."

These observations made on behalf of a Bench of five Judges of this Court are
binding upon us. Even otherwise they have our full concurrence. The view taken
by the Court in this case is sound and commends itself to us. In fact that is
the only view possible on a conjoint reading of paragraphs 3 and 6 of the
memorandum. This decision leaves no room for doubt that. by issuing the
memorandum the centrals Government gave its previous approval to any variation
which might be made in the conditions of service relating to promotion within
the

12.-Ll77 Sup CI/75

472

meaning of the proviso to section 115, sub-section (7). No alteration in the
conditions of service relating to promotion could thereafter be struck down as
invalid on the ground of contravention of the mandatory requirement of the
proviso to section 115, sub-section (7).

But we find that unfortunately in some of the subsequent decisions of this Court
the true ratio of the decision in Raghavendra Rao's case(1) does not seem to
have been properly appreciated and that decision has been sought to be explained
away on a ground which appears to be rather unconvincing. The first decision in
which a departure from the ratio in Raghavendra Rao's case(2) was attempted to
be made by resort to the process of distinguishing it was Mohammed Bhakar v.
Krishna Reddy.(2) The validity or the Amendment Rules of 1966 made by the
Governor of 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 to previous approval within the proviso to
section 115 (7). In our opinion, however, a general remark like that contained
in the said judgment was not meant to lay down the proposition contended for
viz., that the previous approval of the Central Government was not required for
prescribing departmental examinations as a qualification for

       promotion.... It appears to us that the letter of 11th May 1957 cannot be
integrated as sought by the State of Mysore on the strength of the observations
of this Court in Raghavendra Rao's case (supra)."

and held that since, apart from the memorandum dated 11th May, 1957, the
previous approval of the Central Government had not been obtained by the
Governor of Mysore before the making of the Amendment Rules, 1966, they were
ineffective and void. With the greatest respect to the learned Judges who
decided this case. we do not think they were right in explaining away the
decision in Raghavendra Rao's ,case(3) in the manner they did. We are afraid
they did not correctly appreciate the true ratio of the decision in Raghavendra
Races

(1) [1964] 7 S.C.R. 549.

(2) [1970] Service Law Reporter 768.

473

case, (supra) for there can be no doubt that if they had, they could not have,
consistently with that decision, come to-the conclusion that the Amendment
Rules, 1966 were made by the Governor of Mysore without the previous approval of
the Central Government.

We may then refer to the decision of a Bench of two Judges of this Court in G.
D. Vaid v. State of Punjab.(1) The question in this case was whether the Punjab
Police Clerical Service (State Service Class III) Rules, 1960, which dealt with
promotion, were made with the previous approval of the Central Government as
required by the proviso to section 115, sub-section (7). The appellant, who
asserted the validity of these Rules, relied on the decision in Raghavendra
Rao's case (supra) for showing that these Rules were made with the previous
approval of the Central Government and there was no contravention of the proviso
to section 115, subsection (7). Jaganmohan Reddy, J., speaking on behalf of the
Court, however, negatived the plea of the appellant in the following words :

       "The Appellant says that in Raghavendra Rao v. Deputy Commissioner South
Kanara this Court had observed that the previous approval will be presumed. This
construction would 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 in Raghavendra Rao's case. It is indeed difficult
to see bow the Rules in question could be said to have been made without the
previous approval of the Central Government when this Court said in so many
terms in Raghavendra Rao's case that "the Central Government came to the
conclusion that it would not be appropriate to provide for any protection in the
matter--of departmental promotion" and "this amounted to previous approval
within the proviso to section 115, subsection (7)". Perhaps the Division Bench
in this case was driven to

(1) [1972] 1 S.C.R. 896.

474

adopt this rather unconvincing line of reasoning because it was faced with the
decision in Mohammed Bhakar v. Krishna Reddy,. (supra) and had to find some way
of reconciling it with the decision it) Raghavendra Rao's case. (supra) The last
decision to which we may refer in this connection is the decision of a Bench of
three Judges of this Court in State of Haryana v. S. J. Bahadur(1) Hegde, J.,
speaking on behalf of the Court, reiterated that the scope of the Memorandum
dated 11th May, 1957 had been considered by this Court in Mohammed Bhakar v.
Krishna Reddy (supra) and in that case it was held by this Court that the
memorandum "cannot be considered as permitting the State Governments to alter
any conditions of service relating to the promotion of the affected Government
servants". We have already shown bow this view taken: in Mohammed Bhakar v.
Krishna Reddy (supra) and followed in G. D. Vaid v. State of Punjab (supra) runs
counter to the decision in Raghavendra Rao's case (supra) and we need riot add
anything more to what we have already said in this connection. We affirm the de-
cision in Raghavendra Rao's case and hold that the memorandum dated 11th May,
1957 constituted 'previous approval' of the Central Government to any variation
which might be made in the conditions of service relating to promotion within
the meaning of the proviso to section 115, sub-section (7). We may point out
that the decision in Raghavendra Rao's case (supra) has been cited with approval
by a Bench of five Judges of this Court as recently as 23rd August, 1972 in N.
Subba Rao v. Union of India. (2) It must, therefore, be concluded that in any
view of the, matter the Andhra Rules and the Andhra Pradesh Rules did not
contravene the proviso to section 115, subsection (7).

Re. C :

That 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, the post one stage above that of Supervisor was the
post of Sub-Engineer

(1) [1973] 1, S.C.R. 249. (2) A.I.R. 1973 S.C. 69. 475

and it was only from the post of Sub-Engineer that promotion lay to the post of
Assistant Engineer. The post of Assistant Engineer was, therefore, not a post of
one stage promotion from the Post of Supervisor. Now the cadre of Sub-Engineers
was abolished by the Government of Andhra Pradesh with effect from 1st November,
1956 and some way had, therefore, to be found to absorb and assimilate officers
holding the post of Sub-Engineer immediately prior to 1st November, 1956 in the
Engineering Service of the State of Andhra Pradesh. The,, Government of Andhra
Pradesh accordingly promoted these officers as Assistant Engineers with effect
from 31st October, 1956 afternoon so that on 1st November, 1956 when the
reorganisation of the States took place, they were Assistant Engineers drawing
either the Telengana scale of pay or the Andhra scale of pay according as they
were graduates or non-graduates and they could be integrated in the same
category as Assistant Engineers from the Telengana and Andhra regions. Since,
however, they were not really and in fact Assistant Engineers immediately prior
to 1st November, 1956 but were merely Sub-Engineers promoted as Assistant
Engineers only for the purpose of integration; they were paced en bloc below the
Assistant Engineers of the Telengana and Andhra regions in seniority. Vide the
order of the Government of Andhra Pradesh dated 22nd December, 1960 and the
letter of the Central Government dated 24th December, 1965. But this does not
mean that the post of Sub-Engineer was equated with that of Assistant Engineer
in the State of Andhra Pradesh. The post of Sub-Engineer was abolished and there
was no question of equating it with the post of Assistant Engineer. It was only
in order to integrate the existing incumbents of the cadre of Sub- Engineers for
whom there was no corresponding cadre in the State of Andhra Pradesh that a
provision had to be made promoting them as Assistant Engineers with
retrospective effect from 31st October, 1956 afternoon with a view to
assimilating them in the category of Assistant Engineers, though at the bottom
of that category. It is difficult to imagine how in these circumstances any
promotion could be made from the post of Supervisor to the post of Assistant
Engineer according to the Hyderabad Rules. The one stage promotion from 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-

476

Engineer and no higher and the cadre of Sub-Engineers was abolished. The next
higher stage of promotion from the post of Supervisor in the reorganised State
of Andhra Pradesh was the post of Assistant Engineer and promotion to that post
could be governed only by- the Andhra Rules which contemplated such promotion
and made express provision for it. The petitioners/appellants were, therefore,
not entitled to claim that Supervisors from the erstwhile Hyderabad State should
have been promoted as Assistant Engineers in the reorganised State of Andhra
Pradesh according to the Hyderabad Rules.

The petitioners/appellants then relied on rule 42(h)(i) of the Andhra Pradesh
State and Subordinate Service Rules, 1962 for invoking the applicability of the
Hyderabad Rules, in the matter of promotion to the post of Assistant Engineer.
But we fail to understand how rule 42(h)(i) can be of any assistance to the
petitioners/appellants. Rule 42(h) (i) provides that nothing in the Andhra Rules
or the Andhra Pradesh Rules shall disqualify or shall be deemed to have ever
disqualified a Supervisor from the erstwhile Hyderabad State for promotion on or
after 1st November, 1956 to a post one stage above that held by him and prior to
the said date, if in the opinion of the appointing authority such Supervisor
would have been qualified for promotion to such post under the Hyderabad Rules.
Here the post of Assistant Engineer to which Supervisors from the erstwhile
State of Hyderabad claimed to be promoted on or after 1st November, 1956 was
undoubtedly one stage above that held by the Supervisors, there being no
intermediate post in the reorganised State, but it cannot be said that the
Supervisors would have been qualified for promotion to the post of Assistant
Engineer under the Hyderabad Rules, if recruitment to the post of Assistant
Engineer had been regulated by the Hyderabad Rules. In the first place, the
Hyderabad Rules did not provide for promotion directly from the post of
Supervisor to the post of Assistant Engineer, and secondly, under the Hyderabad
Rules, a non-graduate Supervisor would not have been qualified for promotion to
the post of Assistant Engineer. The contention based on Rule 42 (h) (i) must
also, therefore, be rejected. Re. D & E:

Now we proceed to consider the challenge based on infraction of articles 14 and
16 of the Constitution. Article 14 ensures to every person 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 477

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 that exist in
fact is living law; to disregard practical differences and concentrate on some
abstract identities lifeless logic.(1)" The Legislature must necessarily, if it
is to be effective at all in solving the manifold problems which continually
come before it, enact special legislation directed towards specific ends and
limited in its application to special classes of person or things. "Indeed, the
greater part or all legislation is special, either in the extent to which it
operates, or the objects sought to be attained by it."

We thus arrive at the point at which the demand for equality confronts the right
to classify. For it is the classification 'which determines the range of persons
affected by the special burden or benefit of a law which does not apply to all
persons. This brings out a paradox. The equal protection of the laws is a
"pledge of the protection of equal laws." But laws may classify. And, as pointed
out by Justice Brewer, "the very idea of classification is that of inequality".
The court has tackled this paradox over the years and in doing so, it has
neither abandoned the demand for equality nor denied the legislative right to
classify. It has adopted a middle course of realistic reconciliation. It has
resolved the contradictory demands of legislative specialization and
constitutional generality by a doctrine of reasonable classification. This
doctrine recognizes that the legislature may classify ,for the purpose of
legislation but requires that the classification must be reasonable. It should
ensure that persons or things similarly situated are all similarly treated. The
measure of reasonableness of a classification is the degree of its success in
treating similarly those similarly situated. ( 2 )

But the question is : what does this ambiguous and crucial phrase ,,similarly
situated" mean ? Where are we to look for the test of similarity of situation
which determines the reasonableness of a classification ? The inescapable answer
is that we must look beyond the classification to the purpose of the law. A
reasonable classification is one which includes all persons or things similarly
situated with respect to the purpose of the law. There should be no
discrimination between one person or thing and another, if as regards the
subject-matter of the legislation their position is substantially the same. This
is sometimes epigrammatically described 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.

478

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 guard to see that this test which has been
evolved as a matter of practical necessity with a view to reconciling the demand
for equality with the need for special legislation directed towards specific
ends necessitated by the complex and varied problems which require solution at
the hands of the legislature, does not degenerate into rigid formula to be
blindly and mechanically applied whenever the validity of any legislation is
called in question. The fundamental guarantee is of equal protection of the laws
and the doctrine of classification is only a subsidiary rule evolved by courts
to give a practical content to that guarantee by accommodating it with the
practical needs of the society and it should not be allowed to submerge and
drown the precious guarantee of equality'. The doctrine of classification should
not be carried to a point where instead of being a useful servant, it becomes a
dangerous master, for otherwise, as pointed out by Chandrachud, J., in State of
Jammu & Kashmir v. Triloki Nath Khosa,(1) "the guarantee of equality will be
submerged in class legislation masquerading as laws meant to govern well-marked
classes characterised by different and distinct attainments." Overemphasis on
the doctrine of classification or an anxious and sustained attempt to discover
some basis for classification may gradually and imperceptibly deprive, the
guarantee of equality of its spacious content. That process would inevitably end
in substituting the doctrine of classification for the doctrine of equality :
the fundamental right to equality before the law and equal protection of the
laws may be replaced by the overworked methodology of classification. Our
approach to the equal protection clause must, therefore, be guided by the words
of caution uttered by Krishna Iyer, J., in State of Jammu & Kashmir v. Triloki
Nath Khosa(1) : "Mini-classifications based on micro-distinctions are false to
our egalitarian faith and only substantial and straightforward classifications
plainly promoting relevant goals can have constitutional validity. To overdo
classification is to undo equality."

It is in the light of these principles that we must proceed to examine the
constitutional validity of the Andhra Pradesh Rules. The complaint of the
petitioners under the head of contention E is that the Andhra Pradesh Rules make
unjust discrimination between graduates 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

(1) [9974] (1) S.C.C. 19.

479

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 in other
words, it is arbitrary and unreasonable ? Now, there are three decisions of this
Court where educational qualifications have been recognised as forming a valid
basis for classification. In State of Mysore v. Narasing Rao(1) this Court held
that higher educational qualifications such as success in S.S.L.C. examination
are relevant considerations for fixation of higher pay scale for tracers who
have passed the S.S.L.C. examination and the classification of two grades of
tracers in Mysore State, one for matriculate tracers with higher pay scale and
the outer for non-matriculate tracers with lower pay scale, cannot be said to be
violative, of articles 14 or 16. So also in Union of India v. Dr. (Mrs.) S. B.
Kohli, (2) a Central Health Service Rule requiring that a Professor in
Orthopedics must have a post graduate degree in particular speciality was upheld
on the ground that the classification made on the basis of such a requirement
was not "without reference to the objectives sought to be achieved and there can
be no question of discrimination". A very similar question arose in State of
Jammu & Kashmir v. Triloki Nath Khosa (supra) where a rule which provided that
only degree holders in the cadre of Assistant Engineers shall be entitled to be
considered for promotion to the next higher cadre of Executive Engineers and
diploma holders shall not be eligible for such promotion, was challenged as
violative of the equal opportunity clause. This Court repelled the challenge
holding that "though persons appointed directly and by promotion were integrated
into a common class of Assistant Engineers. they could, for the purposes of
promo- tion to the cadre of Executive Engineers, be classified on the basis of
educational qualifications" and "the rule providing that graduates shall be
eligible for such promotion to the exclusion 'of diploma holders", was not
obnoxious to the fundamental guarantee of equality and equal opportunity. But
from these decisions it cannot be laid down as an invariable rule that whenever
any classification is made on the basis of variant educational qualifications,
such classification must be held to be valid. irrespective of the nature and
purpose of the classification or the quality and extent of the difference in the
educational qualifications. It must be remembered that "life has (1) [1968] 1
S.C.R. 407.

(2) [1973] 3 S.C.C. 592.

480

relations not 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 the post of
Assistant Engineer,, which, according to the quota is reserved for graduate
Supervisors, a non-graduate Supervisor cannot be promoted to that vacancy, even
if he is senior to all other graduate Supervisors and more suitable than they.
His opportunity for promotion would be limited only to vacancies available for
non-graduate Supervisors. That would clearly amount to denial of equal
opportunity to him. When there is a vacancy earmarked for graduate Supervisors,
a non-graduate, Supervisor would be entitled to ask : "I am senior to the
graduate Supervisor who is intended to be promoted. I am more suitable than he
is. It is no doubt true that I am a non-graduate, but my not being a graduate
has not been branded as a disqualification. I am regarded fit for promotion and,
like the graduate Supervisor, I am equally eligible for being promoted. My
technical equipment supplemented by experience is considered adequate for
discharging the functions of Assistant Engineer. Then why am I being denied the
opportunity for promotion and the graduate Supervisor is preferred?" There can
be no satisfactory answer to this question. It must be remembered that many of
these non-graduate Supervisors might not have been able to obtain degree in
engineering because they came from poorer families and did not have the
financial resources to pursue degree course in engineering and not because they
lacked the necessary capacity and intelligence. "Chill penury" might have "
repressed their noble rage". It is of the essence of equal opportunity for such
persons with humble and depressing backgrounds that they should have
opportunity, through experience or self- study, to level up with their more
fortunate colleagues who, by reason of favourable circumstances, could obtain
the benefits of-higher education, and if they prove themselves fit and more
suitable than others, why should they be denied an opportunity to be promoted in
a vacancy on the ground that vacancy belongs to Supervisors possessing higher
educational qualifications. As pointed out by Krishna Iyer, 481

J., in the State. of Jammu & Kashmir v. Triloki Nath Khosa (supra) "the soul of
Art. 16 is the promotion of the common mans capabilities, over-powering
environmental adversities and opening up full. opportunities to develop in
official life without succumbing to the sophistic argument of the elite that
talent is the privilege 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, while that of non-graduate.
Supervisors was Rs. 140-300 and similarly, under the Andhra Rules the pay scale
of' non-graduate Supervisors was Rs. 100-250, but graduate Supervisors were
started in this pay scale at the stage of Rs. 150/- so that their pay-scale was
Rs. 150-250. Graduate Supervisors and non-graduate Supervisors were also treated
differently for the purpose of promotion under both sets of Rules. In fact,,
under the Andhra Rules a different nomenclature of Junior Engineers was given to
graduate Supervisors. The same differentiation into two classes also persisted'
in the reorganised State of Andhra Pradesh. The pay-scale of JuniorEngineers was
always different from that of non-graduate Supervisors and for the purpose of
promotion, the two categories of Supervisors were kept distinct and apart under
the Andhra Rules even after the appointed day. The common gradation list of
Supervisors finally approved by the Government of India also consisted of two
parts, one part relating to Junior' Engineers and the other part relating to
nongraduate Supervisors. The two categories of Supervisors were thus never fused
into one class and no question of unconstitutional discrimination could arise by
reason of differential treatment beinggiven to them. Condition E cannot,
therefore, prevail and must be rejected.

That takes us to contention D. So far as this contention is- concerned, we do
not think we can be called 'upon to decide it. It does not form the subject
matter of Writ Petition No. 385 of 1969. There is no complaint in this petition
in regard to the classificationof non-graduate Supervisors into different
categories and reservation

482

of vacancy for each category in the cyclic order of rotation for promotion to
the posts of Assistant Engineers. When we turn to the judgment of the Full Bench
impugned in the appeals, we find that there is discussion in that judgment in
regard to the rotational system of promotion prescribed under the Andhra Pradesh
Rules, but that discussion is mainly in the context of an argument challenging
the different proportions of vacancies allotted to graduate and non-graduate
Supervisors. No specific contention seems to have been advanced directly
impugning the distribution of the vacancies allotted to non-graduate
Supervisors. It is true that there is reference in the judgment to the
distribution of the non-graduate Supervisors' quota of vacancies amongst
different classes of non-graduate Supervisors, but that reference is on account
of the fact that the respondents relied on this factor as justifying the
rotation system as between graduate Supervisors and non- graduate Supervisors.
It is indeed difficult to see how the Full Bench could have possibly examined
the challenge against distribution of vacancies amongst different categories of
non-graduate Supervisors in the cyclic order of rotation when such challenge did
not arise out of any averments in the writ petitions, and moreover, all directly
recruited non-graduate Supervisors and promotee non-graduate Supervisors holding
LCE, LME or LEE diplomas, who would be affected by an adverse decision, were not
before the High Court. We are of the view that in the absence of necessary
averments 'in regard to this challenge in the writ petitions before the High
Court as also in Writ Petition No. 385 of 1969 before this Court and
particularly the non-graduate Supervisors, who would be affected by an adverse
decision, not being before the High Court or this Court to contest such
challenge, it was not possible for the High Court and it is equally not
possible, for this Court to entertain this challenge and examine its validity on
merits. We, therefore, refuse to consider contention D.

We accordingly dismiss the writ petitions and appeals. There will, however, be
no order as to costs all throughout. V. M. K. Petitions and appeals dismissed.
483