Civil Appeal Nos
3520 3524 of 1979
Appeals by Special Leave from the Judgment and Order dated 11 9 1979 of the Kerala High Court in Writ Appeals Nos
241 24277 and Original Petition Nos
1791 1836  189279 130 P Govindan Nair
Mrs Baby Krishnan and N Sudhakaran for the Appellants
M M Abdul Khader V J Francis and Sushil Kumar for the Respondents
The Judgment of the Court was delivered by KOSHAL J
By this judgment we shall dispose of Civil Appeal Nos
3520 to 3524 of 1979 which are directed against a common judgment dated 11 9 1979 of a Division Bench of the High Court of Kerala holding that in the Department of Education of the State of Kerala the post of Assistant Educational officer hereinafter described as AEO is not a promotion post vis a vis that of a High School Assistant hereinafter referred to as HSA that the two posts are interchangeable and that consequently the reversion of the solitary appellant in each case from the post of AEO to that of HSA is not violative of article 16 of the Constitution
It is not disputed before us that each of the appellants had been holding the post of AEO for more than six years continuously when his reversion was ordered in implementation of the instructions issued by the State Government through a letter dated the 19th May 1977 to the effect that every AEO should be transferred back as HSA after six years of service as AEO or even earlier on administrative grounds
Each reversion was challenged before the Kerala High Court by means of a petition under article 226 of the Constitution of India with the prayer that the same be quashed
Two of the petitions were dismissed by a learned single Judge whose orders were challenged in letters Patent appeals which were heard and dismissed by the impugned judgment along with the other three petitions
The five appeals have been admitted in pursuance of special leave granted by this Court
On behalf of the appellants two contentions have been raised a The post of AEO lies in a category and carries a grade higher than those of the post of HSA is therefore a post of promotion vis a vis the other so that the two cannot be considered as inter changeable especially because there is no rule direction or instruction laying down expressly or by necessary implication that they are equivalent to each other
b Even if the appointment of an HSA as an AEO cannot be regarded as a promotion the impugned reversions are violative of article 14 as no guidelines to regulate them have been provided inspite of the fact that the post of an AEO carries a special pay which is not available to an HSA 131 After hearing learned counsel for the parties at length we find both these contentions to be weighty
Promotion is thus defined in clause 11 of rule 2 of the Kerala State and Subordinate Services Rules 1958 11 Promotion  means the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class
 This definition fully conforms to the meaning of promotion  as understood in ordinary parlance and also as a term frequently used in cases involving service laws
According to it a person already holding a post would have a promotion if he is appointed to another post which satisfies either of the following two conditions namely i that the new post is in a higher category of the same service or class of service ii the new post carries a higher grade in the same service or class
It is common ground between the parties that in the instant case the two posts belong to the same service or class of service
Applying the above test therefore to them it would follow that the appointment of an HSA to the post of an AEO would be a promotion if and only if a the post of an AEO is of a higher category than that of an HSA or b the post of an AEO carries a higher grade than that of an HSA In case of either of these conditions being fulfilled the appointment of an HSA to the post of an AEO would be a promotion within the meaning of the clause above reproduced
For ascertaining whether or not the post of AEO lies in a category higher than that of an HSA a reference may be made to clauses 5 and 7a of rule 2 of the Kerala Education Rules 1959 and section 12A of the Kerala Education Act 1958
Rule 25 defines Educational officer as meaning the District Educational officer or the Assistant Educational officer having immediate inspectional and administrative control over the schools within his respective jurisdiction while rule 27a states that the term Teacher  includes the Headmaster
Sub sections 1  2 of section 12A run thus 132 1 Notwithstanding anything contained in section 11 or section 12 and subject to such rules as may be prescribed the Government or such officer not below the rank of an Educational officer as may be authorised by the Government in this behalf shall have power to take disciplinary proceedings against a teacher of an aided school and to impose upon him all or any of the penalties specified in the rules under this Act 2 The Government or the officer authorised under sub section 1 as the case may be may suspend a teacher of an aided school when any disciplinary proceedings are proposed to be taken against him under that sub section or when such disciplinary proceedings are pending  
The combined effect of these provisions is that if so authorised by the Government an AEO shall have the power to take disciplinary proceedings against a teacher including a Headmaster of an aided school to suspend him when such proceedings are proposed to be taken and to impose upon him all or any of the penalties to which he may be liable under the relevant rules
The Education Department Guide Book 1978 issued by the State Government contains a detailed description of the powers and duties assigned to various officials of the Department
The list of functions to be performed by the AEOs
contains 40 items of which item 4 reads To institute disciplinary proceedings against non gazetted officers under his control as per Kerala Civil Services C C and A Rules
 Now HSAs are admittedly non gazetted officers who are eligible for appointment and are normally appointed as Headmasters of Upper Primary schools vide paragraph 1ai of GOMs No 3271S Edn dated 19 3 1971
They would thus while functioning as Headmasters be amenable to disciplinary action by their respective AEOs
It follows that the post of the AEO lies in a higher category than that of the HSA who does not wield any corresponding disciplinary jurisdiction
The qualifications for the two posts may now be looked into
AEOs are appointed from amongst first grade graduate teachers having the following qualifications vide No GOMS 393Edn dated 25 7 1966 a General BA or BSc
133 b Special i BT or BEd
of a recognised University
ii Account Test Lower
iii Kerala Education and rules
Rule 3 of the Kerala Education Subordinate Service Special Rules framed in 1972 runs thus 3
No High School Assistant shall be considered for being selected for posting as an Assistant Educational officer unless he has passed the test in Kerala Education Act and Rules
 This rule seriously militates against the proposition propounded on behalf of the State that the two posts are inter changeable
An HSA cannot be posted as an AEO unless he has the qualification in addition to those making him eligible to hold the post of HSA of having passed the test in Kerala Education Act and Rules
The reason for the additional qualification is obvious and that is that in his supervisory and disciplinary jurisdiction the AEO has to discharge functions which he cannot efficiently carry out if he is not a master of the law which calls for day to day application by him to different cases with which he has to deal
This is another factor pointing in the same direction that the post of an AEO lies in a higher category
An additional circumstance leading to the same inference is provided by the broad guidelines issued by the State Government to the effect that care must be taken to see that only officers of high integrity and efficiency should be posted to work as Assistant Educational officers vide judgment dated 11th January 1977 of the High Court of Kerala in OP No 3627 of 1974
HSAs are therefore appointed to the posts of AEOs
not as a matter of course but under a process of selection for which the basic is integrity cum efficiency
Further evidence in the same direction is provided by three documents forming part of the paper book at pages 31 38 and market as annexures C  D  and E  respectively
Annexure C  is an order dated 29th August 1961 issued by the State Government a part of paragraph 3 of which reads thus Criteria for promotion 1 Appointment to the posts of District Educational officers Headmasters of High Schools High School Assistants and Assistant Educational officers are now made mainly on the basis of seniority
Promotion on the basis of seniority alone is not conducive to efficiency
Promotions to these posts will hereafter be made on a selection basis
134 2 The above orders will be given effect from the 1st September 1961  Annexure D  is a letter dated 17th February 1969 from the Director of Public Instructions to the District Educational officer Trivandrum and states inter alia The question of probation arises only when there are functional differences
So in the case of Assistant Educational officers probation has to be insisted on
 The last of the three documents is an order dated 19th October 1974 issued by the State Government introducing direct recruitment to the posts of AEOs
and District Educational officers
It contains amongst others the following directions The persons selected will be required to undergopass the following training programmedepartmental tests Assistant Educational officers Training One year as Headmaster of an Upper Primary School
Six months with Assistant Educational officer of which the last three months shall be as Head Clerk of the Assistant Educational officer s office
Six months in the District Educational officer s office of which the last three months will be as Junior Superintendent in charge of one of the sections
Two months OM training in the Directorate or Secretariat Training School
Four months as personal assistant to Educational officer
Departmental Tests 1
Account test Lower
Test in Kerala Education Act and Rules
Test in Manual of office Procedure
 The integrated effect of these three documents is that the functions to be performed by an AEO are substantially different from and entail higher responsibility than those of an HSA that the appointment to the post of an AEO from amongst officials already serving the State Government is a matter of promotion and not a mere transfer and that that is how the Kerala Government itself has been viewing the matter all along prior to the issuance of the letter dated 19th May 1977 mentioned above
135 8
Here we may briefly advert to the constitution of the Kerala General Education Service as detailed in GO P No 356PD dated 28th October 1967 and published in Kerala Gazette No 46 dated 21st November 1967
That Service is divided into two classes
The post of the District Educational officer falls in Class I which is superior to Class II
The posts enumerated in Class II include those of Headmasters of High Schools
The post of HSA does not find a place in either Class
On the other hand the HSA belongs to the Kerala Educational Subordinate Services and works under the Headmaster of a High School
He is therefore two steps below the District Educational officers
Mr Nair sought to utilise this circumstance as another pointer to the post of HSA lying in a category lower than that of an AEO for according to him the latter was only one step below the post of a District Educational officer
The argument has not commended itself to us as no foundation has been laid for the assumption that the post of an AEO furnishes an immediate avenue of promotion to that of the District Educational officer
In fact an indication to the contrary is provided by the various categories listed in Classes I and II mentioned above neither of which includes either HSAs
or AEOs
This may well mean that the AEO too is to hold another post out of those listed for the purpose in the GO last mentioned before he would have a chance of promotion as a District Educational officer
And if that be so an AEO must also be regarded as two steps below a District Educational officer
The GO under consideration is therefore of no help to the case of the appellant but then this conclusion does not adversely affect the finding already arrived at by us otherwise to the effect that the post of an AEO lies in a higher category
The only argument which Mr Abdul Khader advanced against the proposition that the post of an AEO lay in a higher category may be stated thus
According to the available rules and instructions an HSA but not an AEO may be appointed to the post of Headmaster of a High School
However the Government has been appointing AEOs also as Headmasters of High Schools which means that AEOs are equated with HSAs
Now this is to say the least
a strange argument
If the rules do not permit AEOs
to become Headmasters of High Schools but the Government has been posting them as such in contravention of the rules it would not follow that the rules automatically stand amended to be read in conformity with the contravention
In any case there is no incongruity in two categories of posts one higher and the other lower furnishing two sources of recruitment to another higher post and it would not necessarily 136 follow from such a practice that the two sources must be regarded as equivalent to each other for all purposes
Let us now see if the post of an AEO carries a higher grade
It is common ground between the parties that although the two posts are in the same time scale a special pay of Rs 50 per mensem is attached to post of an AEO in accordance with the orders of the State Government contained in clause v of paragraph 5 of GO P No 30066Fin dated 5 7 1966 which also states that this special pay is to be treated as Class I special pay in accordance with Appendix IV Kerala Service Rules
That Class consists of two items a Special pay in lieu of higher time scale of pay
b Special pay for specifically arduous nature of work
The expression special pay in lieu of higher time scale of pay  may be better understood with reference to the provisions of rule 1231 of the Kerala Service Rules which may be extracted here 1231 Special Pay means an addition of the nature of pay to the emoluments of a post or of an officer granted in consideration of the following a Where a post would call for a higher scale of pay in view of the additional andor higher responsibilities attached to it or b Where the nature of work is specially arduous or c Where an officer has to attend to work in addition to normal duties attached to his post
 Sub clauses b  c of clause 31 obviously relate to posts having the same designation or the same nature of duties in the same time scale which is not the case here
On the other hand the special pay granted to an AEO would squarely fall within the sub clause a of clause 31 in view of the nature of higher responsibilities shouldered by him
And if that be so the grade of the post of an AEO must be equated to the time scale plus special pay which would be a grade higher than the one available to an HSA 11
In contending to the contrary Mr Abdul Khader sought support from P G Joshi and others etc
etc vs The Director General Posts and Telegraphs New Delhi etc1 in which the posts of Wireless Licence Inspectors and Town Inspectors to such of which a special pay of Rs 30 was attached were held equivalent to those of clerks the time scale for all the three being the same
The dictum in that case is however not applicable to the facts with which we are concerned
Therein this Court took note of the definition of special pay occurring in Fundamental 925 which states 137 Special pay means an addition of the nature of pay to the emoluments of a post or of a Government servant granted in consideration of a the specially arduous nature of the duties or b a specific addition to the work or responsibility or c the unhealthiness of the locality in which the work is performed then proceeded to observe The provision for payment of a special pay of Rs 30 in addition to the time scale of pay of clerks is inconsistent with the constitution of a separate cadre of Wireless Licence Inspectors and Town Inspectors
The provision for special pay shows that they continue in the cadre of time scale clerks
Appointment as Wireless Licence Inspectors or Town Inspectors is not a case of transfer from one cadre to another or a case of promotion from a lower cadre to a higher cadre or from a lower post to a higher post
Though for directly recruited Wireless Inspectors there is an avenue of promotion from those posts to the post of Wireless Investigating Inspectors no such avenue of promotion has been shown to exist for Wireless Licence Inspectors appointed from amongst time scale clerks
Their avenues of promotion are from their substantive posts of time scale clerks
The posts of Wireless Licence Inspectors to which time scale clerks are appointed by selection did not constitute a separate cadre and the appointments are not by way of promotion
The posts of Wireless Licence Inspectors are in the cadre of time scale clerks and carry a special pay on account of additional work Special pay of Rs 30 in that case it may thus be seen something quite different from the special pay in the instant case which as we have already found was fitted in lieu of a higher scale of pay consistent with the higher responsibilities which are entailed in the performance of his functions by an AEO
All the three clauses of Fundamental Rule 925 correspond with the definition of special pay contained in sub clauses b  c of clause 31 of rule 12 of the Kerala Service Rules and none of them takes within its sweep the type of special pay envisaged by sub clause a of rule 1231
The case cited is thus fully distinguishable and is of no assistance to the case propounded on behalf of the State Government
We now take up the second limb of the argument of Mr Nair namely that even if the post of an AEO is not regarded as higher to that of an HSA either category wise or grade wise the impugned reversions are still hit by article 14 of the Constitution of 138 India
In this connection two important factors have to be taken note of
The first is that the post of an AEO carries a special pay of Rs 50 per month and therefore ensures for its incumbents higher emoluments than are available to an HSA
The second is that the special pay is counted towards pension as is made out on a reading of rules 1223 and 62 of the Kerala Service Rules
According to rule 1223 special pay is part of pay  while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 1223
The post of an AEO thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are available to him after retirement
The substantial improvements in the benefits which an HSA thus enjoys after his posting as an AEO constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an HSA as an AEO and vice versa so that mere caprice does not deprive an AEO of the benefits enjoyed by him
The direction contained in the letter dated 19 5 1977 that an AEO should be transferred back as an HSA after six years of service as AEO is wholly arbitrary and not based on any principle
It is therefore violative of article 14 and we hold it to be so 13
In the result all the five appeals succeed and are accepted
The impugned judgment is set aside and the orders transferring  the appellants from the posts of AEOs
to those of HSAs are quashed
As a necessary consequence if any of the appellants has had to relinquish charge of the post of AEO in compliance with such orders he shall be deemed to have continued to hold the post of an AEO in spite of and right from the date of the order of his transfer as HSA and to be entitled to all the benefits pertaining to that post and the respondents are directed to repost him as AEO as expeditiously as possible and within a month from the date of this order at the latest
We make it clear that the vice of arbitrariness and other infirmities we have pointed out are curable if only the State Government amends the rules fairly and rationally
This judgment does not stand in the way of Government framing new rules or amending the old rules but such rules must be in conformity with Part III of the Constitution
SR Appeals allowed
Appeal allowed


Summary:
Each of the appellants had been holding the post of Assistant Educational Officer for more than six years continuously when his reversion was ordered in implementation of the instructions issued by the State Government through a letter dated 19th May 1977 to the effect that every Assistant Educational Officer should be transferred after six years of service as such or even earlier on administrative grounds
Having failed before the High Court to get these orders quashed on the ground that the posts of Assistant Educational Officers being promotional posts their transfer to the posts of High School Assistant amounted to reversion and therefore violated Articles 14 and 16 of the Constitution the appellants have now come up in appeal by special leave
Allowing the appeals the Court  HELD 1 The directions contained in the letter dated 19th May 1977 that an Assistant Educational Officer should be transferred back as a High School Assistant after six years of incumbency as Assistant Educational Officer is wholly arbitrary and not based on any principle and is therefore violative of Article 16 of the Constitution
Firstly the post of AEO carries a special pay of Rs 50 per month and therefore ensures for its incumbent higher emoluments than are available to a High School Assistant
Secondly the special pay is counted towards pension under Rules 12 23 and 62 of the Kerala Service Rules
Any transfer of an Assistant Educational Officer to that of High School Assistant deprives him of these benefits and therefore is violative of Article 14
137H 138A D P C Joshi and others etc
etc vs The Director General Posts and Telegraphs New Delhi etc 1975 2 SCR 115 distinguished
2 The very fact that the post of Assistant Educational Officer carries a special pay of Rs 50 falling within sub clause a of clause 31 of Section 12 of the Kerala Service Rules goes to prove that the post is higher than that of High School Assistant
136B C 137F G 3 Rule 2ii of the Kerala State and Subordinate Service Rules 1958 Rule 2v Rule 2viia of the Kerala Education Rules 1959 and Section 12A of the Kerala Education Act 1958 make it clear that if so authorised by the 129 Government an AEO shall have the power to take disciplinary proceedings against a teacher including a Headmaster of an aided school to suspend him when such proceedings are proposed to be taken and to impose upon him all or any of the penalties to which he may be liable under the relevant rules
Item 4 of the functions to be performed by an Assistant Educational Officer detailed in the Education Department Guide Book 1978 empowers him to institute disciplinary proceedings against non gazetted officers under his control as per Kerala Civil Services Qualification Control and Appeal Rules and admittedly High School Assistants are non gazetted officers who are eligible for appointment and are normally appointed as Headmasters of upper primary school and therefore they would while functioning as Headmasters be amenable to disciplinary action by their respective Assistant Educational Officers
It follows that the post of an Assistant Educational Officer lies in a higher category than that of a High School Assistant who does not wield any corresponding disciplinary jurisdiction
132C G The qualifications prescribed by the Government order dated 25th June 1966 and Rule 3 of the Kerala Education Subordinate Service Special Rules 1972 make it clear that the two posts of Assistant Educational Officer and High School Assistant are not inter changeable
A High School Assistant cannot be posted as an Assistant Educational Officer unless he has the qualification in addition to those making him eligible to hold the post of High School Assistant of having passed the test in Kerala Education Act and Rules
The broad guidelines issued by the State Government to the effect that care must be taken to see that only officers of high integrity and efficiency should be posted to work as Assistant Educational Officers the Government Order of 29th August 1961 the letter dated 7th February 1969 issued by the Director of Public Instructions and the Order dated 19th October 1974 issued by the State Government introducing direct recruitment to the posts of AEOs
and District Educational Officers also specifically indicate that the functions to be performed by an Assistant Educational Officer are substantially different from and entail higher responsibility than those of an HSA so that the appointment to the post of AEO from amongst officials already serving the State Government is a matter of promotion and not a mere transfer and that is how the Kerala Government itself has been viewing the matter all along prior to the issuance of the letter dated 19th May 1977
131G 133B C E F 134G H 4 If the rules do not permit Assistant Educational Officers to become Headmasters of High Schools but the Government has been posting them as such in contravention of the rules it would not follow that the rules automatically stand amended to be read in conformity with the contravention
There is no incongruity in the two categories of the posts one higher and the other lower furnishing two sources of recruitment to another higher post and it would not necessarily follow from such a practice that the two sources must be regarded as equivalent to each other for all purposes
135G H 136A