* HON’BLE SRI JUSTICE GHULAM MOHAMMED AND · HON’BLE SRI JUSTICE B.SESHASHAYANA REDDY · +WRIT PETITION No.7086 of 2005 % Dated: 31-12-2008 Between: # V. Srinivasa Reddy .. Petitioners and $ The Government of Andhra Pradesh rep. By its Principal Secretary, PanchayatRaj and Rural Development Department, Hyderabad and others .. Respondents < GIST : >HEAD NOTE: ? Cases referred: 1.AIR 2001 SC 308 2. AIR 2001 SC 595 3. 1974(1) SCC 19 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTY FIRST DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 7086 of 2005 Between: V. Srinivasa Reddy, S/o. Narayan Reddy, RWS, Nalgonda ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep by its Principal Secretary, Panchayat Raj & Rural Development Department, Secretariat, Hyderabad. 2 The Commissioner of Panchayat Raj & Rural Employement Department, Andhra Pradesh, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue writ order or direction more particularly one in the nature of writ of "Certiorari" calling for the records relating to the order of the Hon'ble A.P. Administrative Tribunal dated 13-9-2004 in O.A.No. 9317/2002 and quash the same and also declare Note-3 (iii) of Rule-3 of A.P. Panchayat Raj and Rural Development Engineering Service Rules as illegal, bad, arbitrary and violation of Articles 14 & 16 of the Constitution of India and further direct the respondents to consider only such of thouse Deputy Executive Engineers who possess the qualifications prescribed in the Annexure to Rule-3(b) and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case Counsel for the Petitioner:MR.M.RATNA REDDY Counsel for the Respondent No.: GP FOR SERVICES II The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE B. SESHASHAYANA REDDY W.P.No.7086 of 2005 Order: ( Per Sri GM, J) The writ petitioner herein is applicant in O.A.No.9317 of 2002. The writ petitioner and one N. Ram Mohan Rao, filed O.As., before the Tribunal seeking declaration that note 3(ii) and (iii) of the Rule of 3 of Andhra Pradesh Panchayat Raj and Rural Development Services Rules, ( for short “the Rules”), as arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India and to direct the respondents to consider only such of the Deputy Executive Engineers who possess the qualifications prescribed in the Annexure to Rule 3(b) for promotion to the post of Executive Engineers. It is the case of the applicants before the Tribunal that they joined the government service as Assistant Executive Engineers ( A.E.Es.) in the year 1980 and later they were selected by the APPSC and appointed in the year 1984. The applicants were promoted as Deputy Executive Engineers, on 6-2-1990 and 11-2-1991 respectively. The post of Assistant Executive Engineer is governed by the Rules issued in G.O.Ms.No.291 dated 23-3-1963 and the same were amended vide G.O.Ms.No.662 dated 24-11-1987, providing a channel for Assistant Engineers (Supervisors) by transfer to the post of Assistant Executive Engineer subject to acquiring Engineering graduation qualification. The Supervisors are eligible for promotion to the post of Deputy Executive Engineer to the extent of 1/4th of the vacancies. As per G.O.Ms.No.662 dated 26-11-1987, the Assistant Engineers on appointment as Assistant Executive Engineers are entitled to count 1/3rd of the service rendered as Assistant Engineer before his appointment as Assistant Executive Engineer subject to a maximum of four years. The Assistant Executive Engineers are entitled for promotion to the post of Deputy Executive Engineer to the extent of two vacancies out of three vacancies. The Government issued revised Special Rules through G.O.Ms.No.15, PR&RD, dated 8-1-1999, according to which, the post of Assistant Executive Engineer is to be filled only by direct recruitment. The post of Deputy Executive Engineer is to be filled by promotion from the Assistant Executive Engineer cadre and by appointment by transfer of Assistant Engineer (Supervisors), Draughtsman Special Grade and Draughtsman Gr.I. As per Note-I of Rule-3 of the Rules, the A.Es. (supervisors) are entitled for 4th, 8th, 12th, 16th, 20th, 24th and 28th vacancies in a cycle of 36 vacancies to the cadre of Deputy Executive Engineers. According to the petitioner, 32nd vacancy goes to the Draughtsman Special Grade and Draughtsman Gr.I and 36th vacancy has to be filled by appointment by transfer of A.E (Supervisors) with B.E. technical qualification. Rule 3(b) of the Rules clearly prescribes that no person shall be eligible for appointment to the post of Executive Engineer by promotion unless he possess a Bachelors Degree in Civil or Mechanical Engineering or a pass in Section A and B of AMIE examination conducted by the Institute of Engineers in Civil or Mechanical Engineering or a pass in Section A and B of AMIE examination conducted by the Institute of Engineers in Civil or Mechanical or AMIE and B.Sc. (Engineering) of Ranchi University or an equivalent qualification. The post of Executive Engineer is to be filled up by promotion from the category of Deputy Executive Engineer. It is noteworthy that bachelors engineering degree is prescribed as qualification for the post of Executive Engineer. As stated above, the applicants in the O.As., questioned the validity of Note 3(ii) and 3(iii) under Rule 3(a) of the Rules mainly on the ground that they are violative of Article 14 and 16 of the Constitution of India ; and that when in the Annexure to Rule 3(b) a qualification of degree in engineering is prescribed there could be no provision for a quota in favour of non- graduates. The Tribunal by its impugned order struck down Note- 3(ii) of Rule 3(a) of the Rules as unconstitutional, while upholding note 3(iii) of the Rule 3(a) of the said Rules. In this Writ Petition the petitioner-applicant challenging the order of the Tribunal, seeks direction to declare Note 3(iii) of Rule 3(a) of the Rules as arbitrary and illegal, on the ground that the candidates promoted to the post of Deputy Executive Engineer from different feeder categories will form one class and that there cannot be any further classification from among the said class for the purpose of promotion to the next higher category of Executive Engineer. Heard, Sri M. Ratna Reddy, learned counsel for the petitioner, learned Government Pleader for Services II, Sri, M. Surender Rao, J.R. Manoher Rao, B. Adinarayna Rao, and Sri S. Sharat Kumar, learned counsel for the respondents. Sri M. Ratna Reddy, learned counsel for the petitioner contends that as long as the qualification of graduation is prescribed, for the post of Executive Engineer, by way of promotion from the post of Deputy Executive Engineer, the diploma-holders cannot be granted the benefit of promotions until they acquire the qualification of graduation. He also contends that in view of amendment brought out in G.O.Ms.No.314 dated 17-8-2002, note 3(ii) and (iii) of the Rule 3 of the Rules, which provide for promotion to non-graduates to the post of Executive Engineer, is deemed to be inoperative. It is the contention of the petitioner that as the Deputy Executive Engineer belong to one category, there cannot be any further classification among them, providing quota for promotion for graduates and non-graduates to the post of Executive Engineer and that the rule providing ratio under note 3 (iii) of the Rule 3 of the Rules is also liable to be struck down. Sri M. Surender Rao, learned counsel appearing for respondents contends that qualification prescribed for the post of Executive Engineer in Rule 3(b) and note thereunder has to be read as part of note 3(iii) and Rule 3(a) of the Special Rules and the intention of the rule making authority in amending the rules through G.O.Ms.No.314, dated 17-8-2002 is to reduce the service to be put in by the diploma holders from six years to three years and not to make diploma holders in eligible for promotion as Executive Engineers. In support of his contention, reliance has been placed on the decisions reported in KULDEEP KUMAR GUPTA v. H.P.S.E.B. ((1) AIR 2001 SUPREME COURT 308 ), K. R. LAKSHMAN v. KARNATAKA ELECTRICITY BOARD ( (2) AIR 2001 SUPREME COURT 595). Learned counsel for the contesting respondents also contends that the Tribunal considering the material on record upheld Note- 3(iii) of Rule 3(a) of the said Rules, which stipulates that the post of Executive Engineer shall be filled by Graduate and Non-graduate Deputy Executive Engineers in the ratio of 3:1 calculated on the total cadre strength of the said category of posts in the department and the same needs no interference by this Court. It was also contended that the post of Executive Engineer has to be filled in 3:1 ratio with reference to the cadre strength and not based on the vacancies. Learned Government Pleader submits that note 3(iii) is not contrary to Rule 3(b) of the Rules and that very purpose of m aking the above note as amended in G.O.Ms.No.314 dated 17-8-2002 is to consider non-graduate Deputy Executive Engineers also for promotion to the post of Executive Engineer. Sri. J.R. Manoher Rao, and Sri B. Adinarayana Rao, contends that diploma holders are not eligible to be promoted as Executive Engineers as they do not possess the qualifications prescribed under the rules. If the diploma holders claim promotion to the post of Executive Engineer basing on the rules in force prior to 2002, they should have six years of meritorious service. However, it is submitted, after substitution of the rule in the year 2002 the diploma holders are not eligible to be promoted and that rule 3(b) makes it clear that only degree holders are eligible for promotion to the cadre of Executive Engineer, and therefore a rule cannot be read contrary to what is prescribed therein. The issue that arises for consideration in this writ petition is as to whether the note in 3(iii) of Rule 3(a) is contrary to the Rule 3(b) of the said Rules, and the qualification prescribed for promotion to the post of Executive Engineer in Annexure to Rule 3(b) of the Rules is mandatory or directory. Obviously, the post of Executive Engineer is to be filled up by way of promotion from the category of Deputy Executive Engineer. Rule 3(b) of the Rules provides that one must possess Bachelor Degree Engineering qualification for the purpose of promotion as Executive Engineer. Rule 3(b) of the Rules reads as follows : “ (b) No person shall be eligible for appointment to any category of post specified in column (1) of the Annexure to these Rules by the method of appointment specified in the corresponding column (2) unless he possess the qualification specified in column (3) thereof.” According to Annexure to Rule 3(b) under Class (A) Category 4 of the Rules, for the post of Executive Engineer, he must possess Bachelor Degree in Civil or Mechanical Engineering of a University in India established or incorporated or under Central Act or a Provincial Act or a State Act or an institution recognized by the University Grants Commission or a pass in Section A&B of AIME examination conducted by the Institute of Engineers in Civil or Mechanical or AIME and B.Sc. (Engineering) of Ranchi University or an equivalent qualification. However, Note therein prescribes that, “ Although B.E. is the basic qualification prescribed for the post of Executive Engineer, the Deputy Executive Engineer with LCE/LSE/LME/LAA (Arch.) qualification having meritorious record of six years service may be considered for promotion as Executive Engineer subject to the ratio prescribed in the Note (3) under Rule 3.” The Government by G.O.Ms.No.314 dated 17-8-2002 amended the Annexure to Rule 3(b) under Class (A) Category 4, prescribing minim qualifying service of three years, for the post of Executive Engineer, which reads as follows : “ Uniform minimum qualifying service of three years is prescribed for promotion or appointment by transfer to the post of Executive Engineer subject to the ratio prescribed in Note 3(iii) under Rule 3.” A plain reading of annexure to Rule 3(b) of the Rules says that only Graduate Deputy Executive Engineers are eligible for promotion as Executive Engineers. Note 3(iii) to Rule 3 of the Rules provides for a ratio of 3:1 between graduate Deputy Executive Engineers and non-graduate Deputy Executive Engineers for promotion to the post of Executive Engineer. By virtue of the above note, the Deputy Executive Engineers without degree qualification are also eligible for promotion to the post of Executive Engineer against the 4th vacancy in a unit of 4 vacancies. The Apex Court in STATE OF JAMMU AND KASHMIR v. TRILOK NATH KHASA ((3) 1974 (1) SCC 19), held that classification in the matters of promotion with academic or technical qualification as the basis is the matter for legislative determination and such a classification is permissible unless it is found to be unjust on the face of it. In KULDEEP KUMAR GUPTA’s case ( 1 supra ), the Apex Court while upholding a separate quota for promotion to the category of Assistant Engineer in favour of Junior Engineers ( unqualified ) and Junior Engineers ( Qualified) held that when the classification is challenged as being discriminatory, unless and until sufficient material is produced and it is established that it is unjust on the face of it, by the persons assailing the classification, the Court would be justified in coming to the conclusion that such plea of unlawful discrimination has no basis. In K.R. LAKSHMAN’s case ( 2 supra ), Karnataka Electricity Board amended regulation providing ratio of 1:1 between technically qualified direct recruits and technically unqualified (promotees) persons as against 35% quota available to them. Considering those situations, it was held as follows : “4. The Recruitment and other service conditions including promotion in the Karnataka Electricity Board is governed by a set of regulations called the Karnataka Electricity Board Recruitment and Promotion Regulations (hereinafter referred to as 'the Recruitment Regulations). The Recruitment to the post of Operator, Meter Reader and Assistant Store Keeper, which constitute a combined cadre, is made both by direct recruitment as well as by promotion, on the basis of seniority-cum-merit. The Regulation provides that 50% of the combined cadre would be filled up by direct recruitment and 40% of the cadre by promotion on the basis of seniority-cum-merit and equivalent post and 10% by direct recruitment from among the in-service personnel. The minimum qualification for direct recruitment is I.T.I. certificate in Electrical or Telecommunication or Electronic trade or certificate in Lineman trade of Karnataka Electricity Board Training Institute, after passing of the 10th standard, whereas for promotees, from the Mechanic Grade II, the minimum educational qualification is upto 10th standard. The next higher rank is the Junior Engineer (Electrical) and the cadre of Junior Engineer is required to be filled up, by direct recruitment of persons possessing diploma in Electrical or Computer Engineering to the extent of 40%. Against this 40% quota, appointment could be made by transfer of in-service personnel, possessing Engineering Degree qualification. 10% of the cadre of Junior Engineer could be filled up by direct recruitment of in- service personnel possessing diploma qualification. 10% of the post could be filled up by promotion of Operators, Meter Readers, Overseers, Assistant Store Keepers, having diploma qualification. 35% of the post of Junior Engineer could be filled up by promotion from the common cadre of Operators, Overseers, Meter Readers and Asst. Store Keepers and 5% by promotion of Mechanics with five years of service. By the amendment of the Regulation in February, 1982, a ratio was provided in respect of the 35% quota, which was to be filled up by promotion for the common cadre, the same ratio as 1:1 between the technically qualified direct recruits and technically unqualified promotees. It is this amendment which had been assailed by the present appellants by filing writ petitions in Karnataka High Court. The question for consideration, therefore is whether the amended Regulation, providing a ratio of 1:1 between the technically qualified direct recruits and technically unqualified promotees, as against 35% quota available to them in the cadre of Junior Engineer, could be held to be violative of Article 14 or such a classification is permissible in law and the Rule making Authority had considered all relevant and germane materials in providing for the aforesaid ratio? The concept of equality before law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. All that Article 14 guarantees is a similarity of treatment and not identical treatment. The guarantee of equal protection of law and equality before the law does not prohibit reasonable classification. Equality before law does not mean that things which are different shall be treated as though they were the same. The principle of equality does not absolutely prevent the State from making differentiation between the persons and things. The State has always the power to have a classification on a basis of rational distinctions relevant to the particular subject to be dealt with but such permissible classification must satisfy the two conditions namely the classification to be founded on intelligible differentia which distinguishes persons or things that are grouped from others who are left out of the group and that the differentia must have a rational relation to the object sought to be achieved by the legislation. In other words, there must be a nexus between the basis of classification and the object of the legislation. So long as the classification is based on rational basis and so long as all persons falling in the same class are treated alike, there can be no question of violating the equality clause. If there is equality and uniformity within each group, the law cannot be condemned as discriminatory, though due to some fortuitous circumstances arising out of a peculiar situation, some included in the class get an advantage over others, so long as they are not singled out for special treatment. When a provision is challenged as violative of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it and having ascertained the policy and object of the Act, the Court has to apply a duel test namely whether the classification is rational and based upon an intelligible differentia which distinguished persons or things that are grouped together from others that are left out of the group and whether the basis of differentiation has any rational nexus or relation with its avowed policy and objects. The power to make classification can be exercised not only by the legislature but also by the Administrative Bodies acting under an Act. 5. When the validity of the amended Regulation, providing ratio for promotion between the technically qualified and technically unqualified persons in 1:1 is examined from the aforesaid stand point, we are unable to hold that the direct recruit technically qualified personnel had been treated with hostile discrimination. The feeder category for promotion to the post of Junior Engineer is the combined cadre of Operator-Overseer-Meter Reader- Assistant Store Keeper. To the aforesaid combined cadre, a direct recruitment is possible and those with ITI Certificate in Electrical or Telecommunication or Electronic Trade, after passing of 10th standard could be recruited. Whereas in case of promotees, the qualification required is only study up to 10th Standard and for them the entry point is Mechanic Grade II, from where they get promoted to the combined cadre, as noted above. For the technical post of Junior Engineer, which is the next higher post, the Regulation itself provided that 35% of the said posts could be filled up by promotion from the common cadre and the aforesaid provision for promotion from the common cadre had been made, after prescribing different quotas for direct recruitment of in-service personnel having diploma qualification, promotion from the combined cadre who have diploma qualification and promotion of Mechanics with five years service. According to the Board, though the Regulation, initially provided for promotion to the extent of 35% in the cadre of Junior Engineer from the common cadre but it used to work out gross injustice to the technically unqualified promotees inasmuch as such technically unqualified operators could be considered for promotion to the post of Junior Engineer only after they have rendered more than 15 years of service. That apart the only promotional avenue available to such technically unqualified promotees is the 35% quota in the cadre of Junior Engineer and they could not aspire of any further promotion, whereas the qualified direct recruits could be promoted still further higher ups. The Board claimed that while fixing the ratio as 1:1, it took into account the qualification, the experience and the smooth functioning of the Board and for striking a balance between the qualification on the one hand and the experience on the other. In Trilokinath (AIR 1974 SC 1 : 1974 Lab IC 1), this Court has affirmed the principle of classification but has held that it should be founded on a reasonable differentia which distinguishes the persons grouped together from those who are left out of the group and in that case the classification was between the Degree holder Assistant Engineers and Diploma holder Assistant Engineers. The Court upheld such classification as it was intended to achieve administrative experience in the Engineering Service. In Murugesan (1993 AIR SCW 1021), a three Judge Bench of this Court upheld the ratio of 3:1 between graduate Assistant Engineers and Diploma holder Junior Engineers for promotion to the post of Assistant Executive Engineer, as such a distinction had been maintained throughout between the two categories. It is no doubt true that in that case, it is the diploma holders who had approached the Court, challenging the introduction of ratio of 3:1 between such diploma holders and graduate Assistant Engineers and the Court upheld the provisions, whereas in the case in hand, it is the qualified direct recruits, who have approached the Court. But in deciding the question whether such a provision can be held to be violative of Article 14, the principle in Murugesan would apply with full force to the case in hand. It may be noticed that the learned single Judge relied upon the two earlier decisions of this Court in Roshan Lal Tandon (AIR 1967 SC 1889) and Mervyn Coutindo (AIR 1967 SC 52) and both the decisions have been noticed and distinguished in Murugesan and the other decision on which the learned single Judge has relied upon namely Shujat Ali (AIR 1974 SC 1631 : 1974 Lab IC 1103), has also been explained away in the aforesaid three Judge Bench Judgment in Murugesan. It is no doubt true that in Trilokinath, Chandrachud, J had observed that the classification should not be carried too far lest it many subvert, perhaps submerge the precious guarantee of equality, but such word of caution will have no application to the facts of the present case, where under the Regulation itself, both the technically qualified direct recruits and non-technical promotees were entitled to 35% quota in the cadre of Junior Engineer and the amendment of the year 1982 merely provided a ratio between them namely 1:1 and this amendment was brought about in the Regulation itself to ameliorate the stagnation of the unqualified promotees in the cadre. That apart, it is not correct to hold that there has been a complete fusion in the combined cadre inasmuch as the Regulation did provide for promotion at different percentage for in-service personnel, possessing diploma qualification, then diploma holders from amongst the combined cadre namely Operator, Meter Reader, Overseers and Assistant Store Keepers and 5% by promotion of Mechanics with five years service. Thus, 60% of the posts in the cadre of Junior Engineers were meant to be filled up by different ratio from