* THE HON’BLE SRI JUSTICE B. PRAKASH RAO THE HON'BLE MR JUSTICE RAMESH RANGANATHAN + W.P.Nos.16842, 14651 of 2000 and 8551 of 2001 % 21-8-2006 # S.Purushotham and 4 others Petitioners Vs. $ The State of A.P. rep. by its Chief Secretary to the Govt. G.A.D, A.P. Secretariat, Hyderabad and 4 others Respondents ! Counsel for the petitioners – Sri Nooty Rammohan Rao ^ Counsel for respondents: Sri M.Surender Rao Special Government Pleader < Gist: >Head Note ? [1] (1995)2 SCC 745) 2(1967 SLR 753) 31998(6)SCC-741 4(1995)1SCC23 5(1999)3 SCC 384 6 (2001) SCC 475 7 (2003) 6 SCC 535 8 AIR 1967 SC 1889 9 AIR 1967 SC 52 10 AIR 1974 (SC) 259 11AIR 1999 (SC) 647 121992 Supp.(1) SCC 548 13 1989(4) SCC 187 14 2000(9) SCC 572 15AIR 2000 SC 498 16AIR 1971 SC 2399 171973 (2) SCC 705 182001(4) ALD 153 192004(2) ALD 1 (Larger Bench) 20(1997)9SCC 509 21(2002) 4 SCC 510 22(1967) 2 SCR 29 231989 Supp (2) SCC 364 241993 Supp (4) SCC 473 251998) 2 SCC 198 26(2003) 3 SCC 541 27(2006)2 SCC 482 281981(4) SCC 130 291990(2) SCC 228 30(1975) 3 SCC 76 31(1991) 1 SCC 505 32(1982) 3 SCC 24 33(1981) 1 SCC 722 34(1974)4 SCC 3 35(1978)1 SCC 248 36(1979) 3 SCC 489 37(2002) 4 SCC 34 38(2002(2)SCALE 367 39AIR 1995 SC 2114 40(2000) 8 SCC 633 41(2002) 2 SCC 188 421996(10)SCC 304 432003(12)SCC 68 442006(3) SCC 434 45(1982) 3 SCC 191 461992 Supp (2) SCC 318 47AIR 1968 SC 647 48AIR 1990 SC A.P. 171 492004(8) SCC 579 502003(11) SCC 584 512004(3) SCC 75 THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.No.16842, 14651 of 2000 and 8551 of 2001 COMMON ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) Aggrieved by the order of the Tribunal, in O.A.Nos.5698 and 5904 of 1999 dated 14.02.2000, W.P.Nos.16842 of 2000 and 8551 of 2001 are filed by the Section Officers of different departments of the Government of A.P. W.P.No.14651 of 2000 is filed by the State of Andhra Pradesh aggrieved by the orders of the Tribunal in these O.As. In the aforesaid two O.As, the orders of the Government in G.O.Ms.No.368 General Administration (Ser.B) Department dated 18.8.1999, and G.O.Ms.No.397, General Administration (Ser.V) Department dated 20.9.1999, were under challenge, by the Private Secretaries of the Secretaries to the Government, as arbitrary, illegal and in violation of Articles 14, 16 and 21 of the Constitution of India. The dispute, between the Section Officers and the Private Secretaries to the Secretaries to the Government, revolves around the criteria prescribed and the restrictions imposed for promotion to the posts of Assistant Secretaries to the Government. For better appreciation of the origin of the present litigation, it is necessary to refer to the relevant rules and other applicable provisions. In exercise of the powers conferred under the proviso to Article 309 of the Constitution of India, the Andhra Pradesh Secretariat Service Rules were made and notified in G.O.Ms.No.445, General Administration (Services-B) dated 29.10.1998 (hereinafter referred to as the ‘1998 Rules’). Rule 2 thereof relates to the constitution of the service and amongst the categories of posts which constitute the A.P. Secretariat Service, under Class-A Category (1)(d) are the Additional Secretaries to the Government (Non-Cadre) other than in the Law and Finance & Planning (Finance) Department; under Class B Category 1(c) are the Joint Secretaries to the Government (Non-Cadre) other than Law and Finance & Planning (Finance) Department, under Category 3(c) are the Deputy secretaries to the Government (Non- cadre) other than Law and Finance and Planning (Finance) Departments and under Category 4(c) are the Assistant Secretaries to the Government other than Law and Finance and Planning (Finance) Department. While Section Officers, parties to the present dispute, fall under Class-B Category 7(c) of Rule 2 of the 1998 Rules, the Private Secretaries to the Secretaries to the Government fall under Category 9. Rule 3 prescribes the method of appointment. The channel of promotion, to the non-cadre posts of Additional Secretary, Joint Secretary, Deputy Secretary and Assistant Secretary to the Government, is as under: A d d i t i o n a l Secretary to Government (Non-Cadre) other than in the law and Finance and Planning (Finance) Departments By promotion of Joint Secretary to Government (Non-Cadre) in the Departments of Secretariat other than Law and Finance and Planning (Finance) Departments. Joint Secretary to Government (Non-Cadre) in the Departments of Secretariat other than Law and Finance and Planning (Finance) Departments By promotion of Deputy Secretary to Government (Non-Cadre), in the Departments of Secretariat other than the Law and Finance and Planning (Finance) Department Deputy Secretary to Government (Non-Cadre) in Departments of Secretariat, other than Law and Finance and Planning (Finance) Departments (i) By promotion of Assistant Secretary to Government in the Departments of Secretariat other than Law and Finance and Planning (Finance) Department (ii) By transfer on tenure from any other service, subject to Note 8 below A s s i s t a n t Secretary to Government in the Departments of Secretariat other than Law and Finance and Planning (Finance) Department (i) By promotion of Section Officer (SC), Section Officers and Private Secretaries to Secretaries to Government. (ii) By transfer on tenure of a Special Grade Deputy Collector of the Revenue Department for one post in the Revenue Department of the Andhra Pradesh Secretariat (iii) By promotion of Accounts Officers (iv) If the State Government so direct by transfer from among full members and approved probationers of any other service which the State Government may specify Note 3 to Rule 3 reads thus:- “The cases of Private Secretaries to Secretaries to Government (including Private Secretary/Special Secretary/Ex.Officio Secretary to Government) who are found suitable at the end of two yeas training as Section Officers shall be considered for appointment as Assistant Secretary to Government in the Departments of Secretariat in each unit of appointment along with the Section Officers including Section Officers (SC) in the ratio of 1:19 in a unit of 20 vacancies, the first vacancy to be filled by the Private Secretary and the remaining 19 vacancies by the Section Officers including Section Officers (SC).” In so far as appointment to the post of Assistant Secretary to the Government is concerned it is by promotion of Section Officer and Private Secretaries to the Secretaries to the Government. The 1998 rules prescribed a ratio of 1:19, between these two feeder categories of Private Secretaries and Section Officers, for appointment by promotion to the post of Assistant Secretary to the Government. On receipt of representations from the A.P. Secretariat Association, and the A.P. State Typists and Stenographers Association, to review the ratio and revise the criteria for promotion to the post of Assistant Secretaries with reference to the cadre strength of each of the categories, the matter was placed before the Cabinet Sub-Committee and, after detailed deliberations, the Committee submitted its report to the Government. The Government, after careful examination of the report of the Cabinet Sub-Committee, took note of the fact that the permanent cadre strength of Section Officers was 365 and that of Private Secretaries was 25 and that, at any given point of time, there would be 10 Private Secretaries occupying the posts of Section Officers for the purpose of undergoing training and deducting these 10 posts from the total cadre strength of Section Officers, the permanent cadre strength of Section Officers would be 355 and that the ratio between Sections Officers and Private Secretaries worked out to 14:1. It was observed that the cadre strength of all Non-Cadre officers, from Assistant Secretary to the Government to Additional Secretary to the Government, except in Law and Finance & Planning (Finance) Department, was 151. The Government decided to accept the recommendations and issued G.O.Ms.No.368 dated 18.8.1999 whereby, based on the permanent cadre strength of both the categories of Section Officers and Private Secretaries to Secretaries to Government, 10 posts were earmarked for promotion, from the category of Private Secretary to the Secretary to the Government, to the category of Assistant Secretary to the Government and upto Additional Secretary to the Government (Non-Cadre). The Government ordered that the number of Private Secretaries to the Secretaries to the Government occupying any of the non-cadre posts of Assistant Secretary or Deputy Secretary or Joint Secretary or Additional Secretary shall not exceed 10 in number at any given point of time. The Government further ordered that promotion, from the category of Private Secretaries to the Secretaries to the Government, to and in the categories of Assistant Secretary to the Government and upto Additional Secretary to the Government shall be limited and confined to 10 posts at any given point of time and that, only on vacation of the post of Assistant Secretary/Deputy Secretary/Joint Secretary/ Additional Secretary by a Private Secretary promotee, the next Private Secretary would be promoted to the feeder post of Assistant Secretary within the said earmarked 10 posts. The A.P. Secretariat Service Rules 1998, notified in G.O.Ms.No.445 dated 29.10.1998, was amended and, vide G.O.Ms.No.397, General Administration (Service V) Department dated 20.9.1999, Note (3) of Rule 3 was substituted. Note 3 of Rule 3, as substituted, reads thus: “The cases of Private Secretaries to Secretaries to Government including Private Secretaries to Chief Secretary/Special Chief Secretary/Principal Secretary/Second Secretary/Special Secretary/Ex-Officio Secretary to Government who are found suitable at the end of two years training as Section Officers shall be considered for appointment as Assistant Secretary to Government in the Departments of Secretariat in each unit of appointment, along with the Section Officers including Section Officers (SC). Promotion from the category of the aforesaid Private Secretaries to the categories of Assistant Secretary to Government and up to the Additional Secretary to Government shall be limited and confined to 10(ten) post only at any given point of time. A Private Secretary shall be promote to the post of Assistant Secretary within the said earmarked 10(ten) posts only on vacation of a post of Assistant Secretary/Deputy Secretary/Joint Secretary/Additional Secretary” Challenging the Constitutional Validity of the aforesaid amendment, the Private Secretaries to the Government, filed O.A. No. 5698 and 5904 of 1999. The Tribunal, in its order dated 14.02. 2000, held that the Private Secretaries had been reduced to a worse situation when compared to the position existing prior to the issuance of the G.Os i.e., when the ratio of 1:19 existed for promotion to the post of Assistant Secretary from the two feeder categories, that in the first instance only the ratio which worked as a limiting factor in giving representation to both the feeder categories was operated and since the applicants belonged to a lesser group they got lesser number of posts, but under the earlier dispensation no absolute limit was prescribed on the number of posts that could be occupied by the Personal Secretaries to the Secretaries to the Government. The Tribunal held that, while the earlier ratio was operated only for promotion to the post of Assistant Secretaries, now under the impugned G.O. an absolute limit of 10 posts had been prescribed in all categories, starting from Assistant Secretaries upto Additional Secretaries and, technically, it was possible to deny promotion to an officer who was eligible for promotion to the next higher category on the ground that all the 10 posts had been occupied by the Private Secretaries. The Tribunal held that Private Secretaries could not be discriminated against as a class and once they were promoted to the category of Assistant Secretary, operation of any ratio must be limited to the post of Assistant Secretaries and their future promotion from the Assistant Secretary category should be on the basis of their seniority in the feeder cadre subject to their eligibility and based on their suitability for such promotion. The Tribunal held that it was not proper to restrict their promotion prospects, for posts higher than the posts of Assistant Secretary, on the basis that the quota of posts given to the Private Secretaries had been filled up, that when a ratio is prescribed between two competing feeder categories the ratio should be allowed to operate as a limiting factor for representation of both the feeder categories, that it was not open to the respondents to prescribe a further absolute limit on the number of posts that could be occupied by one feeder category and it was unreasonable to stipulate further that the ratio which was applicable for promotion to the post of Assistant Secretaries should be applied for promotion to higher categories such as Deputy Secretary, Joint Secretary and Additional Secretary to the Government. The Tribunal took note of the fact that promotion to these posts was on the basis of seniority in the feeder category and eligibility and suitability and held that, under the guise of revising the ratio, the respondents had further restricted the promotional prospects of the applicants and that restrictions, which were not there in the earlier Rules, had been imposed under the impugned G.O. prescribing an absolute maximum number of posts that could be occupied by the applicants and further making such an absolute limit applicable in promotion to higher categories of posts such as Deputy Secretary, Joint Secretary and Additional Secretary. The Tribunal held that no restriction was placed on the other feeder category of Section Officer for promotion to the post of Assistant Secretary and higher posts and that the impugned Government Orders were not in the nature of a progressive measure and imposed an unreasonable restriction on the promotional prospects of the applicants. The Tribunal held that the impugned G.O while apparently providing a higher ratio of 1:14 for the applicants was, in fact, regressive in nature, curtailing the promotional avenues of the applicants not only to the posts of Assistant Secretaries but also to the posts of Deputy Secretaries, Joint Secretaries, and Additional Secretaries and such restrictions had been imposed only on one of the feeder categories on the basis of their birth mark that they belonged to the category of Private Secretaries. The Tribunal held that G.O.Ms.No.397 dated 20.9.1999 and G.O.Ms.No.368 dated 18.8.1999 could not be sustained, except to the extent of prescription of the ratio of 1:14 between the two categories of Private Secretaries and Section Officers for promotion to the post of Assistant Secretary, and that a further restriction on the absolute number of posts that could be held by the Private Secretaries and restricting their promotional chances to higher posts of Deputy Secretary, Joint Secretary and Additional Secretary was unwarranted. The Tribunal held that, once Private Secretaries entered the stream of Assistant Secretaries, they were entitled to be considered for promotion to the next higher categories on the basis of their seniority in the feeder category, eligibility and suitability and that there was no necessity to lay down any further restrictions in this regard. The Tribunal held that even for the post of Assistant Secretary, the ratio of 1:14 itself would work as a limiting factor on the representation of both the categories and as the applicants belonged to the minor group they would only have lesser number of posts, that there was no necessity to impose any further restrictions with regards the number of posts to be given to the applicants or with regards their promotional prospects to further higher categories and that G.O.Ms.No.368 dated 18.8.1999, except to the extent of prescription of the ratio of 1:14 between Private Secretaries and the Section Officers for promotion to the post of Assistant Secretaries, and G.O.Ms.No.397 dated 20.9.1999 limiting the number of posts to only 10 at any given point of time, in respect of Private Secretaries occupying any of the posts of Assistant Secretaries, Deputy Secretaries, Joint Secretaries or Additional Secretaries to the Government, was not sustainable, was arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. The said G.Os were accordingly set aside. The Government was directed to follow the formula of 1:14, between Private Secretaries and Section Officers, for promotion to the post of Assistant Secretaries and to consider the case of Private Secretaries in the first vacancy and the case of Section Officers in the other 14 vacancies. Sri Nooty Rammohan Rao, learned counsel for the petitioners, would submit that, normally, an Assistant Section Officer puts in a minimum of 15 to 16 years service before he is promoted as a Section Officer and a further 8 to 12 years service as Section Officer before he is promoted to the post of Assistant Secretary, whereas a Private Secretary, under the earlier dispensation, became an Assistant Secretary within 10 years. Learned counsel would submit that what was sought to be restricted by the Rules, in G.O.Ms.No.397 dated 20.9.1999, was entry of Private Secretaries to the next higher categories of posts of Assistant Secretaries, and not the further promotion of those Private Secretaries who had already been promoted as Assistant Secretaries. Learned counsel would submit that the applicants, in both the O.As, were Private Secretaries when the O.As were filed, that it was not as if they had already been promoted as Assistant Secretaries or were espousing the cause of the Assistant Secretaries, that once a person was promoted as an Assistant Secretary his further promotion to the post of Deputy Secretary, Joint Secretary and Additional Secretary was only on the basis of his seniority in each of the feeder categories subject to suitability and eligibility and that no reference was thereafter made to his birth-mark as a Private Secretary. According to the learned counsel it was only for the purpose of promotion to the post of Assistant Secretary was this restriction brought forth by the Rules under G.O.Ms.NO.397 dated 20.9.1999, and the amendment, in effect, was that as long as there were ten persons, in the non- cadre posts of Assistant Secretaries, Deputy Secretaries, Joint Secretaries and Additional Secretaries put together, who initially belonged to the category of Private Secretaries, no further promotions would be effected to the post of Assistant Secretary from the category of Private Secretary. Learned counsel would submit that the rule only restricts entry of Private Secretaries to the next higher post of Assistant Secretary and once a Private Secretary is promoted as an Assistant Secretary, his further promotion as a Deputy Secretary, Joint Secretary and Additional Secretary is on the basis of his seniority in the cadre of Assistant secretary and the next higher feeder categories respectively, and not with reference to his birth mark as a Private Secretary. Learned counsel would draw support from the judgment of the Apex Court in R.K. Sabharwal v. State of Punjab[1] wherein promotion of candidates, belonging to Scheduled Castes and Scheduled Tribes, to higher posts under the reserved category was sought to be restricted in a similar manner. Learned counsel would submit that the Rules, as amended in G.O.Ms.No.397 dated 20.09.1999, is not discriminatory and that it merely identifies the total number of posts to be held by a particular category of employees. Learned counsel would contend that the source from which promotions are to be made and the manner and method of appointment are all matters in the realm of State policy which are neither justiciable nor amenable to judicial review under Article 226 of the Constitution of India. Learned counsel would submit that the birth mark theory, which found favour with the Tribunal, has, in fact, no application. Sri S. Satyam Reddy, learned counsel for the petitioners in W.P.No.8551 of 2001, would adopt the arguments and, in addition, submit that appointment to 1/3rd of the posts in the I.A.S. cadre is from the State Cadre and, as long as 1/3rd of the total posts in the I.A.S cadre is held from amongst those who originally belonged to the State Cadre, further entry of officers from the State cadre into the IAS cadre is prohibited and it is only when the total number of posts held by such officers falls below 1/3rd would a proportionate number of officers from the State Cadre be considered for appointment to the IAS cadre. Learned Special Government Pleader, appearing on behalf of the Learned Advocate General, would submit that G.O.Ms.No.368 dated 18.8.1999 does not prescribe the ratio of 1:14 and that the direction to follow the ratio of 1:14, in effect, amounts to framing of Rules by the Tribunal which is impermissible in law. Learned Special Government Pleader would submit that no employee has an indefeasible right to have his conditions of service remain unchanged, that reduction of chances of promotion is not a condition of service and that no employee can claim that the chances of promotion which he had at the inception should never be changed or reduced subsequently. Learned Special Government Pleader would submit that the Tribunal erred in holding that there was a change in the conditions of service, when, in fact, all that was done was only to limit entry, of Private Secretaries to the Secretaries to the Government, for promotion to the posts of Assistant Secretaries, making it dependent on the number of non-cadre posts already occupied, by employees from the Private Secretaries category, as Assistant Secretaries, Deputy Secretaries, Joint Secretaries and Additional Secretaries to the Government. Learned Special Government Pleader would submit that the conditions prescribed, by the amendment in G.O.Ms.No.397 dated 20.9.1999, is a policy choice of the Government, and unless it is held to be in violation of the fundamental rights guaranteed under Part III of the Constitution of India, the validity of the said Rules cannot be impeached. Learned Special Government Pleader would contend that the Rules in G.O.Ms. No.397 dated 20.9.1999, made under the Proviso to Article 309 of the Constitution of India, are legislative in character and as such the burden lies heavily on the person who challenges its validity to show that the classification is so arbitrary as to be in violation of Articles 14 and 16 of the Constitution of India. Learned Special Government Pleader would emphasize that as a result of the amendment of the Rules, under G.O.Ms.No.397 dated 20.09.1999, the future entry of employees, from the category of Private Secretaries to the Secretaries to the Government, to the higher post of Assistant Secretaries is restricted and that, on promotion as Assistant Secretaries, they are treated on par with the other Assistant Secretaries, promoted from the category of Section Officers, for being considered for further promotions to the next higher posts of Deputy Secretary and above, and it is only their inter-se seniority in the Assistant Secretaries category which is determinative and not their earlier birth mark as a Private Secretary. Learned Special Government Pleader would place reliance on State of Mysore Vs. G. N. Purohit[2]; Union of India Vs. N. Y. Apte[3]; Chandra Gupta, I. F. S. Vs. Secretary, Government of India, Ministry of Environment and Forests[4]; All India Federation of Central Excise Vs. Union of India[5]; Kuldeep Kumar Gupta Vs. Himachal Pradesh State Electricity Board[6] and Dwarka Prasad Vs. Union of India[7]. Sri M. Surender Rao, learned counsel for the respondents, would submit that the impugned amendment, in effect, identifies candidates on the basis of their original birth mark. Learned counsel would submit that the Rules, as amended under G.O.Ms. No.397 dated 20.9.1999, makes promotion of Private Secretaries, to higher posts of Assistant Secretaries, contingent upon vacation of office by erstwhile Private secretaries holding the posts of Assistant Secretaries, Deputy Secretaries, Joint Secretaries and Additional Secretaries, and that the last four lines of the amendment introduced through Rule 3, in G.O.Ms. No.397 dated 20.9.1999, is arbitrary and in violation of Articles 14 and 16 of the Constitution of India. The relevant portion of Rule 3 reads thus: “………..A private Secretary shall be promoted as Assistant Secretary within the said earmarked 10 posts only on vacation of a post of Assistant Secretary, Dy. Secretary, Joint Secretary, Additional Secretary” Learned counsel would submit that since promotion of Private Secretaries, to the posts of Assistant Secretaries, is made contingent on the vacation of the post of Assistant Secretary, Deputy Secretary, Joint Secretary, Additional Secretary, by persons whose birth mark is that