T.S. THAKUR, J.
1.These appeals by special leave arise out of a common order passed by the High Court of Andhra Pradesh whereby Writ Petition Nos.537, 2073, 2075, 7234 and 11033 of 2002 have been partly allowed, and the order passed by Andhra Pradesh Administrative Tribunal set aside to the extent the same had declared Note 1(i) to Rule 3 of the Andhra Pradesh Educational Service Rules to be unconstitutional. To the extent the Tribunal had declared Note 6 to Rule 3 of the Rules aforementioned to be ultra vires the High Court has affirmed the view taken by the Tribunal and dismissed the writ petitions. It is noteworthy that the State of Andhra Pradesh has not assailed the judgment delivered by the High Court of Andhra Pradesh. The present appeals have been preferred by the direct recruits to the Andhra Pradesh State Educational Service who contend that the Tribunal and the High Court fell in error in declaring Note 6 to Rule 3 of the Rules in question to be unconstitutional.
2.The short question that falls for consideration and that was argued at considerable length before us by learned counsel for the parties is whether persons drawn from different sources and integrated into one class/cadre/category can be classified into separate categories for purposes of promotion on the basis of the source from which they were drawn. The question is, in our opinion, squarely covered by the decisions of this Court to which we shall presently refer but before we do so, we may briefly set out the factual backdrop in which controversy arises.
3.In exercise of the powers vested in it under Sections 78 and 99 of the Andhra Pradesh Education Act, 1982 and in suppression of the earlier rules, the Government of Andhra Pradesh framed what are known as “Andhra Pradesh Educational Service Rules”. Rule 2 of the said Rules provides for the composition of the service which broadly speaking comprises four distinct classes of employees enumerated under the said Rules. Each one of these classes in turn comprises different category of officers enlisted therein. For instance in Class-I there are in all three category of officers. In class II there are seven category of officers; while in class III there are 13 category of officers. So also in class IV there are four category of officers. Rule 3 of the said Rules prescribes the method of appointment and specifies the appointing authority for different category of posts. Since we are concerned only with promotions to class II category I posts, we may extract Rule 3 to the extent the same regulates promotion for that class and category: “3. Method of Appointment and Appointing Authority:- The Method of appointment and appointing authority for different categories of posts of service shall be as follows: Class Category Method of Appointment Appointing Authority II 1 By promotion from Government Categories1,2,3,4,5,8,10 , 11 and 12 of Class III
4.Under Rule 3 are placed Notes 1 to 9 which govern several aspects relating to preparation of seniority lists and the method of recruitment to be adopted for different posts as also the academic qualifications required for such promotions.
5.The High Court has, as noticed earlier, declared Note 1 to be intra vires to which finding there is no challenge before us. It is the validity of Note 6 to Rule 3 which prescribes a roster for promotion to the post of District Educational Officer and Deputy Director comprising category 1 of Class II, that is under attack before us. The Note reads: “NOTE 6 : for the purpose of promotion to category 1 of class II, the following 12 point cycle shall be followed from the feeder categories: 1. A.D., G.A.O, and A.P.O. 2. Direct recruit Dy.E.O./Gazetted Head Master Grade-I, Lecturer IASE/CTE/SCERT, Senior Lecturer DIET and Special Officer (OS) 3. Promotee Dy.E.O./Gazetted Head Master Gr.I and P.E.O. 4. Promotee Lecture IASE/CTE/SCERT, Senior 5. Direct Recruit Dy.E.O./Gazetted Head Master Gr.I, Lecturer IASE/CTE/SCERT, Senior Lecturer DIET and Special Officer (O.S.)
6.Promotee Lecture IASE/CTE/SCERT, Senior
7.A.D., G.A.O, and A.P.O.
8.Direct recruit Dy.E.O./Gazetted Head Master Grade-I, Lecturer IASE/CTE/SCERT, Senior Lecturer DIET and Special Officer (OS)
9.Promotee Dy.E.O./Gazetted Head Master Gr.I and P.E.O.
10.Promotee Lecturer IASE/CTE/SCERT, Senior
11.Direct Recruit Dy.E.O./Gazetted Head Master Gr.I, Lecturer IASE/CTE/SCERT, Senior Lecturer DIET and Special Officer (O.S.)
12.Promotee Lecturer IASE/CTE/SCERT, Senior
Lecturer DIET and A.D. (NFE)”
6. A careful reading of Rule 3 (supra) would show that for
posts in Class II category (1) comprising District Educational
Officer and Deputy Director, officers comprising categories 1 to
5, 8, 10, 11 and 12 of class III are eligible for appointment.
This implies that vacancies in category 1 of class II shall be
filled up in terms of the 12 point cycle stipulated in Note 6
(supra). A closer reading of Note 6 and the roster for
appointment prescribed therein would indicate that
appointments against vacancies in class II category 1 would,
inter alia, depend upon whether the eligible officer is a direct
recruit or a promotee. For instance, a vacancy at roster Point 2
would go to a direct recruit Deputy Educational Officer or a
direct recruit Gazetted Head Master Grade I or Lecturer
IASE/CTE/SCERT or a direct recruit Senior Lecturer DIET or
a Special Officer (OS). In contradiction, a promotee Deputy
Educational Officer or a promotee gazetted Head Master Grade
I will not be eligible for consideration against a vacancy falling
at roster Point 2. Similarly, a promotee Lecturer
IASE/CTE/SCERT or promotee senior Lecturer DIET even
when he or she is a member of the same class as their direct
recruit counterparts in that category shall have to wait for a
vacancy to occur at roster Point 4. Suffice it to say that while
roster Points 2, 5, 8 and 11 have been allotted to direct
recruits, the promotees have been treated differently and can
be considered for vacancies at roster points 4, 6, 10 and 12
only. This classification of persons drawn from different
sources who stand integrated into one class for the purpose of
promotion is what was assailed on behalf of the promotee
officers before the Tribunal primarily on the ground that direct
recruits and the promotees may have come from different
sources but once they are integrated into one class, there can
be no classification as between them on the basis of their birth
marks. The integration of promotees and direct recruits into
one class would wipe out their birth marks with the result that
the same can not be made a basis for a valid classification.
Any such classification would amount to classifying equals in
the matter of further promotion based solely on the source
from which they were drawn. Relying upon the decisions of
this Court, the Tribunal and the High Court have held that
inasmuch as Note 6 to Rule 3 classifies the promotees and
direct recruits for the purpose of future promotion, even after
their integration into one cadre the same was discriminatory
hence ultra vires of Articles 14 and 16 of the Constitution.
7. Appearing for the appellants Dr. Rajeev Dhavan, learned
senior counsel argued that in The State of Jammu and
Kashmir Vs. Shri Triloki Nath Khosa and Ors. 1974 (1) SCC
19, this Court has recognised that a classification based on
higher educational qualifications was permissible even when
those for whom the classification was made were integrated
into one class. He urged that the decision of this Court in
Roshan Lal Tandon Vs. Union of India 1968 (1) SCR 185,
reliance whereupon was placed by the Tribunal as also by the
High Court in support of the view taken by them stood diluted
to that extent implying thereby that the law declared in
Roshan Lal Tandon’s case (supra) could admit of exceptions,
one of which based on higher qualifications was recognised in
Triloki Nath’s case (supra). Dr. Dhavan strenuously argued
that this Court could recognise the need for correcting
imbalance, if any, in the filling up of posts by persons drawn
from different categories as yet another exception to the Rule
stated in Roshan Lal Tandon’s case (supra). He contended
that the Government had reserved to itself the power to review
the roster from time to time, which power of review would,
according to Dr. Dhawan, enable the Government to ensure a
fair distribution of vacancies among all those eligible for
appointment against the same, but who came from difference
sources.
8. Mr. A. Mariarputham, learned senior counsel appearing
for the contesting respondents, on the other hand, submitted
that the view taken by the Tribunal and the High Court of
Andhra Pradesh declaring Note 6 to Rule 3 was legally
unexceptionable inasmuch as the said note was on the face of
it discriminatory in so far as the same classified those
integrated into a particular category based not on their
educational or other qualification but whether they were
promotees or direct recruits. The legal position, argued the
learned counsel, was much too well settled by the decisions of
this Court to admit of any doubt or call for any
reconsideration. It was also not, according to the learned
counsel, possible to carve out an exception to the well settled
legal position governing permissible classifications based on
an assumed imbalance in the filling up of vacancies from out
of officers drawn from different sources.
9. In Roshan Lal Tandon’s case (supra), one of the
questions that fell for consideration was whether the
promotees and direct recruits who formed one class in Grade
‘D’ could thereafter be classified again depending upon the
source from which they were drawn for the purpose of
promotion to the next higher Grade ‘C’. This Court observed:
“In our opinion, the constitutional objection
taken by the petitioner to this part of the
notification is well-founded and must be
accepted as correct. At the time when the
petitioner and the direct recruits were
appointed to Grade ‘D’, there was one class in
Grade ‘D’ formed of direct recruits and the
promotees from the grade of artisans. The
recruits from both the sources to Grade ‘D’
were integrated into one class and no
discrimination could thereafter be made in
favour of recruits from one source as against
the recruits from the other source in the
matter of promotion to Grade ‘C’. To put it
differently, once the direct recruits and
promotees are absorbed in one cadre, they
form one class and they cannot be
discriminated for the purpose of further
promotion to the higher Grade ‘C’.”
10. The above decision was noticed by the Constitution
Bench of this Court in Triloki Nath’s case (supra). In that
case diploma holder engineers had challenged the validity of
certain service rules, inter alia, on the ground that inasmuch
as the said Rules made a distinction between Degree Holder
members of the Engineering service and Diploma Holders for
purposes of promotion to the post of Executive Engineers the
same was unconstitutional being violative of Articles 14 and
16 of the Constitution. The Rules in that case provided for
promotion of only such of the Assistant Engineers as
possessed a bachelor’s degree in engineering or qualification of
A.M.I.E. and as had put in seven years of service in the J & K
Engineering Service. The High Court had allowed the petitions
of Diploma Holders and struck down the Rule as
unconstitutional, holding that the Diploma Holders and the
Degree Holders having been integrated into one category, no
distinction or classification based on educational qualification
could thereafter be made between them. In an appeal to this
Court that view was reversed. This Court held that a
classification must be truly founded on substantial differences
that distinguish persons grouped together from those left out
of the group and such differential attributes must bear a just
and rational relation to the object sought to be achieved.
Having said so, this Court observed:
“33. Judged from this point of view, it seems to
us impossible to accept the respondents’
submission that the classification of Assistant
Engineers into degree-holders and diploma-
holders rests on any unreal or unreasonable
basis. The classification, according to the
appellants, was made with a view to achieving
administrative efficiency in the Engineering
services. If this be the object, the classification
is clearly co-related to it, for higher
educational qualifications are at least
presumptive evidence of a higher mental
equipment. This is not to suggest that
administrative efficiency can be achieved only
through the medium of those possessing
comparatively higher educational
qualifications but that is beside the point.
What is relevant is that the object to be
achieved here is not a mere pretence for an
indiscriminate imposition of inequalities and
the classification cannot be characterized as
arbitrary or absurd. That is the farthest that
judicial scrutiny can extend.”
11. The Court also observed that the classification made on
the basis of educational qualifications with a view to achieving
administrative efficiency can not be said to rest on any
fortuitous circumstance and that one has always to bear in
mind the facts and circumstances of the case in order to
judge the validity of a classification. The ratio of the decision
in Roshan Lal Tandon’s case (supra) was reiterated by their
Lordship in the following words:
“44. The key words of the judgment are: “The
recruits from both the sources to Grade ‘D’
were integrated into one class and no
discrimination could thereafter be made in
favour of recruits from one source as against
the recruits from the other source in the
matter of promotion to Grade ‘C’, (emphasis
supplied). By this was meant that in the
matter of promotional opportunities to Grade
‘C’, no discrimination could be made between
promotees and direct recruits by reference to
the source from which they were drawn. That
is to say, if apprentice train examiners who
were recruited directly to Grade ‘D’ as train
examiners formed one common class with
skilled artisans who were promoted to Grade
‘D’ as train examiners, no favoured treatment
could be given to the former merely because
they were directly recruited as train examiners
and no discrimination could be made as
against the latter merely because they were
promotees. This is the true meaning of the
observation extracted above and no more than
this can be read into the sentence next
following: “To put it differently, once the direct
recruits and promotees are absorbed into one
cadre, they form one class and they cannot be
discriminated for the purpose of further
promotion to the higher Grade ‘C’.” In terms,
this was just a different way of putting what
had preceded.”
12. In the light of the above pronouncements, the Tribunal
and the High Court were, in our view, justified in holding that
Note 6 to Rule 3 was unconstitutional inasmuch as the same
classified officers eligible for appointment against class II
category 1 posts depending upon whether they were direct
recruits or promotees. Such a classification based on the birth
mark that stood obliterated after integration of officers coming
from different source into a common cadre/category would be
wholly unjustified and discriminatory.
13.That leaves us with the question whether any imbalance among those eligible for appointment against class II category 1 posts coming from different sources and categories would itself justify a classification like the one made in Note 6. Our answer is in the negative. There is no gainsaying that classification must rest on a reasonable and intelligible basis and the same must bear a nexus to the object sought to be achieved by the statute. By its very nature classification can and is often fraught with the danger of resulting in artificial inequalities which make it necessary to subject the power to classify to restraints lest the guarantee of equality becomes illusory on account of classifications being fanciful instead of fair, intelligible or reasonable. We may gainfully extract the note of caution sounded by Krishna Iyer J. in his Lordship’s separate but concurring judgment in Triloki Nath’s case (supra) : “……..The dilemma of democracy is as to how to avoid validating the abolition of the difference between the good and the bad in the name of equality and putting to sleep the constitutional command for expanding the areas of equal treatment for the weaker ones with the dope of “special qualifications” measured by expensive and exotic degrees. These are perhaps meta-judicial matters left to the other branches of Government, but the Court must hold the Executive within the leading strings of egalitarian constitutionalism and correct, by judicial review, episodes of subtle and shady classification grossly violative of equal justice. That is the heart of the matter. That is the note that rings through the first three fundamental rights the people have given to themselves.”
14.In the result we find no merit in these appeals which fail and are hereby dismissed but without any order as to costs. (MARKANDEY KATJU) (T.S. THAKUR) New Delhi February17, 2010