Thote Bhaskara Rao vs A.P. Public Service Commission And ... on 25 November, 1987 Equivalent citations: 1988 AIR 830, 1988 SCR (2) 35, AIR 1988 SUPREME COURT 830, 1988 LAB IC 989, 1987 5 JT 464, 1988 (1) ATLT 30, (1988) 2 LAB LN 154, 1988 UJ(SC) 1 283, 1987 SCC (SUPP) 587, (1987) 4 JT 464 (SC), 1988 SCC (L&S) 251, (1988) 1 CURLR 128 Author: L.M. Sharma Bench: L.M. Sharma, A.P. Sen PETITIONER: THOTE BHASKARA RAO Vs. RESPONDENT: A.P. PUBLIC SERVICE COMMISSION AND OTHERS. DATE OF JUDGMENT25/11/1987 BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) SEN, A.P. (J) CITATION: 1988 AIR 830 1988 SCR (2) 35 1987 SCC Supl. 587 JT 1987 (4) 464 1987 SCALE (2)1166 CITATOR INFO : D 1988 SC1369 (15) ACT: Andhra Pradesh State Judicial Service Rules: Rules 2(15)(a) and 12-District Munsif-Recruitment of-Eligibility conditions-Experience in 'Government Service'-Whether service in Hindustan Shipyard, a Government of India Undertaking can be equated to 'Government service.'. Constitution of India, 1950: Articles 12 and 14- Hindustan Shipyard, a Government of India undertaking-Though 'State' for purposes of Part III of the Constitution-Whether service in such undertaking 'Government service'- Classification based on difference in nature of service under Government and that of other services- Whether valid- Proviso to Rule 12 of Andhra Pradesh State Judicial Service Thote Bhaskara Rao vs A.P. Public Service Commission And ... on 25 November, 1987  1 Rules-Validity of. HEADNOTE: % The appellant who had enrolled himself as an Advocate on 24.2.77 and practised law till 1.4.81 when he was appointed in the service of the Hindustan Shipyard, an undertaking owned by the Government of India, applied for the post of a District Munsif, in pursuance of an advertisement dated 25.4.84 issued by the respondent No. 1- Andhra Pradesh Public Service Commission for filling up, by direct recruitment, of vacancies reserved for the Scheduled Castes. His application was rejected by the respondent No. I, as in its opinion, he did not fulfil the necessary qualification fixed under Rule 12 of the Andhra Pradesh State Judicial Service Rules and was, therefore, ineligible for appointment. The appellant challenged the aforesaid decision before the High Court. A Single Judge allowed the writ petition and directed the first respondent to consider the appellant's candidature. The Letters Patent Appeal filed by the respondent was allowed and the writ petition was dismissed. In the appeal by special leave, the appellant contended that as he had practised for a requisite period immediately prior to his entering 36 service of Hindustan Shipyard, an undertaking owned by the Government of India, he must be held to be qualified for appointment, that no distinction ought to be made between experience acquired in Government service and the one in any other service, whether public or private in nature, that this discrimination was illegal and ultra vires and that the word "Government" should be deleted from the proviso to Rule 12 so as to save it from the vice of discrimination. The respondents opposed the appeal on the ground that the appellant was not in Government service. Dismissing the appeal, ^ HELD: 1.1 There is no doubt that the expression "Government service" mentioned in the proviso to Rule 12 of the Andhra Pradesh State Judicial Service Rules includes service either under the State Government or the Government of India. Sub-rule (15)(a) of Rule 2 explains that the expression "recruited direct" would refer to a candidate including a person in the service of Government of India or the Government of State to be recruited directly subject to service conditions mentioned therein. [39A-B] In the instant case, the Hindustan Shipyard, although a fully owned undertaking of the Central Government cannot be equated with the Government or State except for the purpose of part III of the Constitution. The undertaking has a Thote Bhaskara Rao vs A.P. Public Service Commission And ... on 25 November, 1987  2 separate legal entity. The expression "State" does not by reason of Article 12 of the Constitution include the undertaking except for the limited purpose which is not attracted in the present case. The appellant who is in the service of Hindustan Shipyard and is wt serving directly the Union of India cannot take advantage of the proviso. [38E-F] 1.2 What is forbidden by the Constitution is discrimination between persons who are substantially in similar circumstances or conditions. An equal treatment does not arise as between persons governed by different conditions and different sets of circumstances. It is obviously permissible to classify persons into groups and such groups may be differently treated if there is a reasonable basis for such difference or distinction. [39C-D] Having regard to the'difference in the nature of service under the Government and that of the other services, therefore, a classification based on that line cannot be struck down on the ground of illegal discrimination. The Proviso to Rule 12 must be held to be valid and effective. [39D-E] 37 JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3400 of 1987. From the Judgment and order dated 23.1.1986 of the Andhra Pradesh High Court in Writ Appeal No. 22 of 1985. M.K. Ramamurthi, Attar Singh and G.N. Rao for the Appellant. T.V.S.N. Chari for the Respondents. The Judgment of the Court was delivered by SHARMA, J. The appellant's application for appointment as a District Munsif by the State of Andhra Pradesh in the quota reserved for Scheduled Castes was rejected by the Andhra Pradesh Public Service Commission (briefly described as the 'Commission'), respondent No. 1, which the appellant challenged before the Andhra Pradesh High Court by a writ petition. The learned Single Judge allowed the prayer and directed the first respondent to consider the candidature of the appellant for the appointment in question. The respondents challenged the decision under Clause 15 of the Letters Patent in the High Court in Writ Appeal No. 22 of 1985. The appeal was allowed and the writ petition was dismissed. We have granted leave under Article 136 of the Constitution allowing the appellant to appeal against the said decision. 2. The appointment of District Munsifs is regulated by Andhra Pradesh State Judicial Service Rules (hereinafter referred to as the Rules). In response to an advertisement issued by the 'Commission' Thote Bhaskara Rao vs A.P. Public Service Commission And ... on 25 November, 1987  3 for filling up a large number of vacancies of District Munsifs by direct recruitment, the appellant applied. Subsequently a second advertisement was issued on 27.5.1984 with reference to vacancies reserved for Scheduled Castes, and the appellant made a second application. His present claim is with respect to these reserved posts. 3. After passing the Law Examination the appellant got himself enrolled as an Advocate on the rolls of the State Bar Council on 24.2.1977 and practised law till 31.3.1981. On 1.4.1981 he was appointed in the service of Hindustan Shipyard, an undertaking owned by the Government of India, and claims to have remained in charge of the legal cell. As stated earlier, he applied in pursuance of the second advertisement dated 27.5.1984 notified by the 'Commission- In the opinion of the 'Commission' the appellant did not fulfil the necessary qualification fixed under the Rules, and was therefore ineligible for appointment. 4. The Rules have laid down three modes for appointment, namely, by direct recruitment, by promotion and by transfer. Rule 12 requires inter alia as an essential qualification for a candidate for appointment as a District Munsif that he should be in actual practice and should have been so engaged for not less than 3 years in a court of civil or criminal jurisdiction. Since the appellant was not in actual law practice, reliance has been placed on his behalf on the Proviso tc the aforementioned Rule, which is quoted below: "Provided that in the case of a person who is already in Government service and who applied for appointment to the post of District Munsif by direct recruitment, he must have actually practised for a period of not less than 3 years immediately prior to the date of his entering the Government service." 5. It is contended that as the appellant had practised for a requisite period immediately prior to the date of his entering the service of Hindustan shipyard, he must be held to be qualified for appointment. The appellant's claim is being refuted by the respondents on the ground that he was not in Government service. The stand of the respondents appears to be well founded. The Hindustan Shipyard, although a fully owned undertaking of the Central Government, cannot be equated with the Government or State except for the purposes of Part-III of the Constitution. The undertaking has a separate legal entity. The expression "State" does not by reason of Article 12 of the Constitution include the undertaking except for the limited purpose which is not attracted in the present case. 6. Mr. Ramamurthy, the learned counsel for the appellant, appreciating this position, contended that the word "Government'. should be deleted from the Proviso mentioned above, so as to save it from the vice of discrimination. The argument is that no distinction ought to be made between the experience which a candidate acquires in Government service and the experience one acquires in any other service, whether public or private in nature. The learned counsel urged that it is true that the appellant cannot claim to be qualified on the strength of the Proviso as it stands now but to save it from being struck down as illegal, the Court should omit the word 'Government'. Thote Bhaskara Rao vs A.P. Public Service Commission And ... on 25 November, 1987  4 7. There is no doubt that the expression "Government service" mentioned in the Proviso includes service either under the State Government or the Government of India. Sub- rule (15)(a) of the definition Rule 2 explains that the expression "recruited direct" would refer to a candidate including a person in the service of Government of India or the Government of a State to be recruited directly subject to certain conditions mentioned therein. The learned counsel for the respondents, therefore, rightly said that a servant under the Government of India must be included within the scope of the Proviso. Mr. Ramamurthy, learned counsel for the appellant, fairly conceded that the appellant who is in the service of Hindustan Shipyard and is not serving directly the Union of India cannot take advantage of the Proviso, if the same as it stands is held to be legally valid. The attack is on its vires on the ground of illegal discrimination. We do not find any merit in this submission. What is forbidden by the Constitution is discrimination between persons who are substantially in similar circumstances or conditions. An equal treatment does not arise as between persons governed by different conditions and different sets of circumstances. It is obviously permissible to classify persons into groups and such groups may be differently treated if there is a reasonable basis for such difference or distinction. Having regard to the difference in the nature of service under the Government and that of the other services, therefore, a classification based on that line cannot be struck down on the ground of illegal discrimination. The Proviso in question must be held to be valid and effective 8. The High Court in the writ appeal while upholding the Proviso has interpreted it differently which does not appear to be correct. However, since the learned counsel for the respondents while defending the decision whereby the appellant's writ application was rejected, has stated that the interpretation put by the Division Bench was not correct and he does not support it, it is not necessary to consider that aspect in detail. 9. In view of our finding in paragraph 7 above, upholding the validity of the Proviso, as it is, the appellant must fail. Before closing, however, we would like to point out that the appellant cannot succeed even if the enabling provision in the Proviso relaxing the qualification clause of Rule 12 is held to be ultra vires. Besides, we have serious doubt whether a court can reframe a rule and give effect to it as suggested on behalf of the appellant, but we do not consider it necessary to deal with this aspect any further. In the result, the appeal fails and is dismissed but, in the circumstances, without costs. N.P.V. Appeal dismissed. Thote Bhaskara Rao vs A.P. Public Service Commission And ... on 25 November, 1987  5