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CASE NO.: Appeal (civil)  2963 of 2008

PETITIONER: A. Satyanarayana & Ors

RESPONDENT: S. Purushotham & Ors

DATE OF JUDGMENT: 24/04/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO.      2963          OF 2008 (Arising out of SLP (C) No.17064 of 2006) With Civil Appeal No.__2964___ of 2008 (Arising out of SLP (C) No.10137 of 2007)

S.B. Sinha, J.

1.      Leave granted. 2.      Interpretation of GOMs. No.368 dated 18.8.1999 is in question in  these appeals which arise out of a judgment and order dated 21.8.2006  passed by a Division Bench of the Andhra Pradesh High Court in Writ  Petition Nos.8551/01, 14651/2000 and 16842/2000.  3.      Respondents herein were Private Secretaries (PSs) of the Secretaries  of the Government of Andhra Pradesh.  Appellants of the Civil Appeal  arising out of SLP (C) No.10137 of 2007 are the Section Officers (SOs)  working in the Secretariat of the Government of Andhrapradesh. 4.      Indisputably, the post of ’Private Secretary’ (PS) as also that of the  ’Section Officer’ (SO) are the feeder posts for promotion to the post of  Assistant Secretary.          The total number of posts in the cadre of Sections Officers was 365.   Indisputably, 10 PSs attached to the Secretaries of the Government of   Andhra Pradesh have to undergo training for a period of two years as a SO.  The number of PSs at a given point of time was 25.  The promotional  channel to the post of Assistant Secretaries was the SO.  5.      By reason of GOMs No.1059 dated 15.7.1960, the State issued a  notification providing for promotion to the post of Assistant Secretary also  from the cadre of PSs.         On or about 16.6.1971, GOMs No.58 was issued whereby and  whereunder Andhra Pradesh General Services \026 class XXVIII was  constituted.  SOs of different departments including Law, Finance  Management as also of any other department were put in different  categories.  However, in view of the fact that  the PSs were not having any  promotional channel or avenue for further promotion, with a view to obtain  suggestions so as to avoid stagnation in service, the Government of Andhra  Pradesh constituted a Committee known as B.N. Raman Committee.  The  said Committee submitted its report making its recommendations, pursuant  whereto and in furtherance whereof, G.O. No.538 was issued on 6.11.1982  inserting Rule 3B in the Rules, which is to the following effect : "In the said rules, after rule 3.A the following rule  shall be added, namely:- ’3B. Special provision for the appointment of  personal Assistants to secretaries to Government as  Section Officers:-

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a)      Notwithstanding anything in sub-rule (a) of  Rule 3, the personal Assistant to Secretary to  Government (including; private secretary and  Government personal Assistant to principal  Secretary/Additional Chief Secretary/Second  Secretary/Ex-officio Secretary to Government)  shall be eligible for appointment as section officer,  provided he gives an option for considering him to  such appointment and the option once exercised by  him for appointment as section officer shall be  final and irrevocable."

6.      The PSs could be transferred to the posts of SOs by obtaining an  option in that behalf as laid down in G.O. No.504 dated 21.10.1983. On or  about 1.5.1984, the promotional avenue for the PSs to the post of Assistant  Secretary was introduced prescribing 1:19 quota between PSs and SOs for  promotion to the post of Assistant Secretary.  The said ratio of 1:19 was  given retrospective effect w.e.f. 6.11.1982 by GOMs.364 dated 16.6.1984.   An amendment was made in the Rules by GOMs No.81 dated 21.2.1985 in  terms whereof the ratio of 1:19 fixed for promotion, between the PSs and  SOs was made applicable from 1.5.1984 instead of 6.1.1982.  The Rules  were suitably amended in terms of the proviso appended to Article 309 of  the Constitution of India w.e.f. 17.7.1985 whereby and whereunder training  for a period of two years for the PSs was made compulsory.  A further  amendment was made for appointment from the posts of PS to the posts of  SOs on tenure basis by a Government Order dated 18.12.1985.  An  amendment was also made in the Rules for making the posts of PS as the  feeder category for promotion to the posts of Assistant Secretary by reason  of GOMs. No.525 dated 21.9.1989. 7.      Representations were made to the State by the Andhra Pradesh  Secretariat Association to review the said Rules with regard to the ratio fixed  therefor.  Representations in that behalf were also received by the State from  Andhra Pradesh State Typist and Stenographers Association.   8.      The issue was placed before the Cabinet Sub-Committee on Service  and Related Matters.         A report was submitted.  The recommendations made by the Cabinet  Sub-Committee were considered by the Government.  Noticing that out of  the permanent cadre strength of SOs was 365 and that of the PSs was 25 and  as 10 PSs occupy the posts of SOs, the ratio between PSs and SOs worked  out at 14:1.  It was decided that a cycle of 15 vacancies may commence with  SOs, having regard to the number of employees in the said cadre.  It was  furthermore noticed that the cadre strength of all the non-cadre officers from  Assistant Secretary to Additional Secretary except Law and Finance and  Planning, as it stood then, was 151.         It was opined that having regard to the said ratio, the number of posts  required to be earmarked for the category of PS to Secretary of Government  in the ministerial line should be 10.  By reason of the impugned G.O., it was  directed : "The Government, accordingly revise the criteria  for promotion from the category of Section  officers and Private Secretaries to Secretaries to  Government to the categories of Assistant  Secretary to Government and upto Additional  Secretary to Government (Non-cadre).  Based on  the permanent cadre strength of both the  categories; 10 (ten) posts only are to be earmarked  for promotion from the category of Private  Secretary to Secretary to Government to the  categories of Assistant Secretary to Government  and upto the Additional Secretary to Government  (non-cadre).  Accordingly the Government hereby  order that the number of Private Secretaries to  Secretaries to Government or Deputy Secretary to  Government or Joint Secretary to Govrnment or

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Additional Secretary to Government (Non-cadre)  shall not exceed 10 (ten) in number at any given  point of time.  These orders shall come into force  with immediate effect. The Government also order coincident that the  promotions be so regulated with immediate effect  so as to ensure the maintenance of the above  criteria between Section Officers and Private  Secretaries to Secretaries to Government while  effecting promotions to the post of Assistant  Secretary to Government from the two feeder  categories of Section Officer and Private Secretary  to Secretary to Government The Government  further order that promotion from the category of  Private Secretary to Secretary to Government to  and in the categories of Assistant Secretary to  Government and upto Additional Secretary to  Government shall be limited and confined to the  above 10 (ten posts of Assistant Secretary/Deputy  Secretary/Joint Secretary/Additional Secretary by a  Private Secretary promotee, the next private  secretary be promoted to the feeder post of  Assistant Secretary with the said earmarked 10  posts."

       Pursuant thereto, the Rules were amended by GOMs no.397 dated  20.9.1999 in terms whereof Note 3 in Rule 3 was substituted which we  would notice a little later.  9.      Respondents herein filed an original application before the Andhra  Pradesh State Administrative Tribunal, inter alia, questioning the validity of  the said notification.   By reason of a judgment and order dated 14.2.2000, the said original  applications were allowed, holding : "In the circumstances, we hold that the impugned  GOMs No.397 G.A. (Ser.B) Department dated  20.9.1999 and GOMs. No.368 G.A.(Ser.B)  Department dated 18.8.1999 cannot be sustained  except to the extent of prescription of the ratio  1:14 for promotion to the post of Assistant  Secretaries only, between the two feeder categories  of PSs and SOs.  Further restrictions on the  absolute number of posts that could be held by the  PSs and restricting the promotional chances to the  posts of Deputy Secretary Joint Secretary and  Additional Secretary, are unwarranted.  As already  stated, the applicants, once they enter the stream of  Assistant Secretaries should be considered for  promotion to the higher categories on the basis of  their seniority in the feeder categories and  eligibility and suitability.  There is absolutely no  necessity to lay down any further restriction in this  regard.  Even for the post of Assistant Secretary,  we hold that the ratio of 1:14 itself will work as a  limiting factor on the representations of both the  categories in the posts of Asst. Secretaries, as the  applicants belong to the minor group, they will  have only lesser number of posts.  There is  absolutely no necessity to impose further  restriction with regard to the number of posts to be  given to the applicants or with regard to the  promotional prospects to further higher categories.   Accordingly, we hold that the impugned G.O.Ms.  No.368 G.A. (Ser.B) Dept. dated 18.8.1999 except  to the extent of prescribing a ratio of 1:14 between

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PSs and Section Officers for promotion to the post  of Assistant Secretary, and the impugned GOMs  No.397 GA (Ser.B) Dept., dated 20.9.1999  limiting the number of posts to Ten (10) only at  any given point of time in respect of Private  Secretaries to Secretaries to Government,  occupying any of the posts Asst. Secretary or  Deputy Secretary to Government (non-cadre) are  not sustainable as the same are arbitrary,  discriminatory and violative of Article 14 and 16  of the Constitution of India and are accordingly set  aside."

It was directed : "While following the formula of 1:14 between  Private Secretaries and Section Officers for  promotion to the category of Assistant Secretaries,  the respondents will consider the case of the  Private Secretaries in the first vacancy and  thereafter, consider the cases of Section Officers  for the other 14 vacancies."

10.     Appellants aggrieved by and dissatisfied therewith filed writ petitions  before the Andhra Pradesh High Court.  By reason of the impugned  judgment, the said writ petitions have been allowed holding that the said  Rule is not unconstitutional, stating : "The permanent cadre strength of Section Officers  is 355 posts as against the permanent cadre  strength of private Secretaries to the Secretaries to  the Government is 25 posts.  The ratio between the  permanent cadre strength of Sections Officers on  the one hand and the Private Secretaries on the  other is 355:25 or 14:1.  The permanent cadre  strength of non-cadre officers (other than in Law,  Finance & Planning Departments), i.e., from  Assistant Secretaries to Additional Secretaries is  151 posts.  With a view to enable both Private  Secretaries and Section Officers to have reasonable  opportunities of upward movement to these non- cadre officers posts of Assistant Secretaries and  above upto Additional Secretaries, in proportion to  their permanent cadre strength of 14:1, the  Government decided to fix an upper limit on the  total number of non-cadre posts which can be held  by the Private Secretaries category as 10 posts  leaving the other 141 posts to the Section Officers.   As there were already more than 10 non-cadre  officers from the Private Secretaries category, it  was decided to restrict entry of Private Secretaries  to the non-cadre officers posts till the existing  number of non-cadre officers, from the Private  Secretaries category fell below 10.  While the  Private Secretaries, on promotion as Assistant  Secretaries, were integrated with the other  Assistant Secretaries and treated on par with them  for further promotion to the posts of Deputy  Secretaries and above, entry of persons from the  Private Secretaries category, for promotion to  Assistant Secretaries category, was restricted.   While the impugned amendment is no doubt  peculiar and instead of the normal practice of  prescribing a ratio or a quota or the total number of  posts which may be held by persons from one of  the feeder categories on promotion to a higher

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category, the total number of posts to be held by  them in the non-cadre posts of Assistant  Secretaries, Deputy Secretaries, Joint Secretaries  and Additional Secretaries have been clubbed  together and a maximum limit of 10 posts has been  prescribed to be filled up from the Private  Secretaries category, that, by itself, would not  render the impugned amendment to the Rules ultra  vires Articles 14 and 16 of the Constitution of  India."

       It was opined that the principles of judicial review do not permit the  courts to examine as to whether prescription of another criteria would have  been more beneficial or not for that would, in effect, amount to sitting over  the judgment over the policy choice of the rule making authority. 11.     Mr. L.N. Rao and Mr. P.P. Rao, learned senior counsels appearing for  the appellants would submit : 1.      Keeping in view the constitutional principles laid down under Articles  14, 16, 320 and 335 of the Constitution of India, the cap of not more  than 10 posts to be held at any time by the PSs channel in all the posts  of Secretaries is not permissible in law.    2.      The Government in a situation of this nature although was entitled to  revise the ratio of promotion from 1:19 to 14:1 based on the then  existing relative strength of two cadres should have rational nexus  with the object of promotion.   3.      There being total integration of Private Secretaries and Section  Officers at the level of Assistant Secretaries, no further discrimination  on the basis of birthmark or otherwise could have been provided for. 12.     Mr. M.L. Verma, learned senior counsel appearing on behalf of the  State of Andhra Pradesh and Mr. Iyer, learned senior counsel appearing on  behalf of the respondents, on the other hand, would urge : A.      The impugned Rules having not prescribed for a restriction on  promotion to the posts of Deputy Secretary onwards on merit having  not provided for, the judgment of the High Court is unassailable. B.      Having regard to the ratio prescribed by the Rules being 14:1 in a  cycle of 15, the Rule provides for a formula for being worked out and  is, thus, merely clarificatory in nature.   C.      Under the old rule, the ratio was 1:19 in terms whereof only 7.5 posts  out of 151 posts could to be allotted to the Private Secretaries; by  reason of the amended Rule now 10 posts would be available to the  incumbents of the said cadre and, thus, is beneficial to the appellant.   D.      The State would stick to the ratio for promotion to the post of  Assistant Secretaries between SOs and PSs at 141:10 and the same  under no circumstances would be disturbed.   E.      No pleading in regard discrimination having been raised before the  Tribunal, the same should not be permitted to be raised for the first  time before this Court.   F.      The State having taken a conscious decision after long deliberations  and upon due application of mind not only on the report of the Raman  Committee but also on the basis of the report of the Cabinet Sub- Committee, this Court should not interfere with the impugned rule as  by reason thereof rights of employees of being two different and  distinct categories had been adjusted.   13.     Before embarking upon the rival contentions raised before us, we may  place on record that the number of posts of SOs was 365, out which 355  belonged to the regular Column and 10 were PSs who had been undergoing  training.  The number of posts, however, has since gone up to 533.  The  number of posts of PSs which were earlier 25 has now gone upto 30.          Quota in ordinary parlance would mean proportionate share.  The  State, indisputably, when provides for two different sources as feeder posts  for promotion to a higher post, it is entitled to fix quota.  The Tribunal, at the  outset it may be noticed, committed an error in directing the State to  consider promotion to the Private Secretaries in the ratio of 1:14 whereas in  terms of Rules, it should be 14:1.  Before us, learned counsel appearing on

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behalf of the appellants conceded in regard to this aspect of the matter.   14.     Indisputably, the Rules for recruitment to the post of PSs and SOs are  different.  Qualifications prescribed therefor are also different.  Presumably,  the nature and quantum of the work are also different. 15.     The total number of posts in Assistant Secretaries, Deputy Secretary,  Joint Secretary and Additional Secretary are as under :

Name of the Post Number of posts Assistant Secretary 101 Deputy Secretary 30 Joint Secretary 15 Additional Secretary 05

       Out of the aforementioned posts the ratio of SOs and PSs is :                 Assistant Secretary                     94 :  7                 Deputy Secretary                        28 : 2                 Joint Secretary                 14 : 1                 Additional Secretary            5 : 0         It is not necessary for us to notice all the provisions of the Rules.  We  may, however, take notice of the fact that Rule 3 prescribes the method of  appointment.  The channel of promotion to the posts of Additional Secretary,  Joint Secretary, Deputy Secretary and Assistant Secretary to the Government  is as under :

"Additional Secretary to  government (Non-Cadre)  other than in the law and  Finance and Planning  (Finance) Department By promotion of Joint  Secretary to Government  (Non-Cadre) in the  Department of  Secretariat other than  Law and Finance and  Planning (Finance)  Department

Joint Secretary to  Government (Non- Cadre) in the  Departments of  Secretariat other than  Law and Finance and  Planning (Finance)  Department (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.

Assistant Secretary to

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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.                  By reason of GOMs No.397 Note 3 of Rule 3 was substituted in the  following terms : "NOTE (3) : The cases of Private 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 upto the Additional Secretary to  Government shall be limited and confined to 10  (ten) posts only at any given point of time.  A  Private Secretary shall be promoted 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."

16.     It does not speak of any quota.  It confines the number of posts to 10  at any given point of time.  The number of 10 posts can be filled up only on  vacation of a post of Assistant Secretary/Deputy Secretary/Joint Secretary/  Additional Secretary. 17.     The affidavit affirmed on behalf of the State as also the Respondent  No.3 herein categorically show that ordinarily in a given situation 10 PSs

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would be working as SOs.  The Tribunal, as noticed hereinbefore, directed  the State to fix the quota of SOs vis-‘-vis PSs at 14:1 wrongly recorded as  1:14.  The State as also the Private Secretaries filed writ applications  questioning the said direction. 18.     The stand which was taken before us, however, is that the limiting the  number of posts to be held by PSs was limited to 10 having regard to the  quota of promotion being fixed at 14:1 so as to enable the cycle of 15 to be  worked out.   We have noticed hereinbefore, although it does not appear from the  impugned GOMs that the State intends to strive to maintain the ratio of 141  to 10 in the posts of Assistant Secretaries onwards. 19.     Various examples have been sought to be placed before us as a result  whereof the ratio may get disturbed in given cases.  It is stated, that out of 15  posts, three may go to PSs and 12 to the SOs. 20.     We, however, are of the opinion that the validity or otherwise of a  quota rule cannot be determined on surmises and conjectures.  Whereas the  power of the State to fix the quota keeping in view the fact situation  obtaining in a given case must be conceded, the same, however, cannot be  violative of the constitutional scheme of equality as contemplated under  Articles 14 and 16 of the Constitution of India.  There cannot be any doubt  whatsoever that a policy decision and, in particular, legislative policy should  not ordinarily be interfered with and the Superior Courts, while exercising  its power of judicial review, shall not consider as to whether such policy  decision has been taken mala fide or not.  But where a policy decision as  reflected in a statutory rule pertains to the field of subordinate legislation,  indisputably, the same would be amenable to judicial review, inter alia, on  the ground of being violative of Article 14 of the Constitution of India.  {See  Vasu Dev Singh & Ors. v. Union of India & Ors. [2006 (1) SCALE 108] and  State of Kerala & Ors. v. Unni & Anr. [(2007) 2 SCC 365]. 21.     The High Court, therefore, in our opinion, was not wholly correct  when it opined that a policy decision cannot be a subject matter of judicial  review.  If the State has the power to fix a quota, the Rule underlying the  legislative policy must stop at that and the necessary consequences thereof  must ensue.  Indisputably, again although the State was entitled to provide  for quota as also a guideline as to how the roster should work out itself, but  thereby it cannot be permitted to put a cap on promotion for the entire  service period. 22.     While saying so, we are not unmindful of the legal principle that  nobody has a right to be promoted; his right being confined to right to be  considered therefor.   23.     Similarly, the power of the State to take a policy decision as a result  whereof an employee’s chance of promotion is diminished cannot be a  subject matter of judicial review as no legal right is infringed thereby. 24.     However, such a Rule must apply to both the groups.  Promotion to a  higher post from the officers of a particular cadre would depend upon a large  number of factors \026 a person may retire; he may be departmentally  proceeded against, he may be sent on deputation; he may resign; Cessation  of employment, thus, may be on various grounds.  If the number of posts is  limited despite uncertainty with regard to arising of any vacancy on any  higher post, the validity of such a rule would be open to question. 25.     The Superior Courts, while exercising their power of judicial review,  must determine the issue having regard to the effect of the subordinate  legislation in question.   There must exist a rational nexus between the  impugned legislation and the object of promotion.  Promotions are granted  to a higher post to avoid stagnation as also frustration amongst the  employees.  This Court, in a large number of decisions, has emphasized the  necessity of providing for promotional avenues. [See Food Corporation of  India and Ors. v. Parashotam Das Bansal and Ors. [Civil Appeal No.991 of  2008 decided on 5.2.2008].  The State, keeping in view that object, having  found itself unable to provide such promotional avenue, provided for the  scheme of Accelerated Career Progress (ACP).  The validity and effect of  the impugned legislation must be judged keeping in view the object and  purport thereof.  This Court would apply such principle of interpretation of  statute which would enable it to subserve the object in place of subverting  the same.

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26.     Whereas, on the one hand, it has been contended before us that all  future promotions that is promotion from the post of Assistant Secretary  upwards are given on merit, on the other hand, a cap of 10 posts has been  made for all the four categories of posts.  It is one thing to say that the State  evolves a policy of prescribing a reasonable quota at all levels of the  promotion but it would be another thing to say that while totally ignoring the  question of birthmark, a few posts shall be identified only on the basis of the  original posts held by the employee concerned.   27.     To the said extent, the rule maintain a birthmark which runs counter to  the decisions of this Court in Dwarka Prasad & Ors. v. Union of India &  Ors. [(2003) 6 SCC 535].         Although mere chance of promotion is not a fundamental right, but  right to be considered therefor is.  In that view of the matter, any policy  whereby all promotional avenues to be promoted in respect of a category of  employees for all time to come cannot be nullified and the same would be  hit by Article 16 of the Constitution of India.   28.     It has not been disputed before us that a panel is required to be  prepared every year.  The High Court, in its judgment, has considered the  question only with reference to upward mobility.           From the Rules, it furthermore appears that even the SOs can be  transferred to the posts of PSs.  Who would be holding what post, even at a  subordinate level, may, thus, be a question of chance.  It has been contended  that whereas an Assistant normally has to put in a minimum of 15 to 16  years of service before he is promoted as a SO and further 8 to 12 years  service as a SO before he is promoted to the post of Assistant Secretary; a  PS could become Assistant Secretary within a period of 10 years.  Our  attention has further been drawn to the fact that at one point of time all the  five posts of Additional Secretaries had been occupied by persons from the  Private Secretary stream.   They allegedly have other chances of promotion  to the posts of Commercial Officers etc.   29.     Grievances of SOs have been taken into consideration for the purpose  of fixation of a ratio of 1:19 amendeding the same  to 14:1.  No exception  thereto can be taken but hardship faced by a section of employees in the past  by itself cannot be a ground to deprive another section of their constitutional  and legal right. 30.     We are, therefore, of the opinion that whereas ordinarily the ratio  should not be disturbed, the same should not lead the court to a conclusion  that such a policy has to be accepted although it takes away the right of a  class of employees.   31.     We have no doubt in our mind that before a rule is declared ultra  vires, the same must be held to be wholly arbitrary or irrational.  In any  event a plea of discrimination is based on adequate pleadings therefor would  be essential.  What, however, must be noticed by us is that the impugned  rule does not take into consideration the events which may take place in  future, as for example increase in the strength in the cadre.  If the number of  posts for promotion is limited to 10, even in a case like the present one  where the number of posts has gone up, only 10 posts can be filled up from  the cadre of the PSs although the same would contravene the ratio of 14:1.   If the Government intends to change the ratio, it may do so.  It may also  provide for separate rules providing for maintenance of two different cadres  at all levels.  But what is impermissible is laying down a condition  subsequent to adoption of a policy decision which defeats the object and  purport thereof.   32.     A statutory rule, it is a trite law, must be made in consonance with  constitutional scheme.         A rule must not be arbitrary.  It must be reasonable, be it substantive  or a subordinate legislation.  The Legislature, it is presumed, would be a  reasonable one.  Indisputably, the subordinate legislation may reflect the  experience of the Rule maker, but the same must be capable of being taken  to a logical conclusion.   33.     Applying the said principle, we are of the opinion that the impugned  Government Orders cannot be sustained.  They are set aside accordingly.   Appeals are allowed with costs.  Costs assessed at Rs.25,000/- (Rupees  twenty five thousand only.)