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PETITIONER: MD.  USMAN & ORS.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT29/04/1971

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N.

CITATION:  1971 AIR 1801            1971 SCR  549  1971 SCC  (2) 188

ACT: Andhra  Pradesh  Registration  Subordinate  Service  Special Rules,   r.   5--U.D.Cs.  and  L.D.Cs.  put   together   for recruitment to post of Grade-II Sub-registrars-If  violative of Art. 14 of Constitution. Recruitment   on  seniority--cum--merit   basis-Preferential qualifications considered-Validity of recruitment.

HEADNOTE: The validity of the recruitment of the appellants as  Grade- II Sub-registrars as well as the vires of r. 5 of the Andhra Pradesh Registration Subordinate Service Special Rules under which  the recruitment was made, were challenged by some  of the respondents.  The rule deals with the qualifications for being recruited as Grade II sub-registrars.  It put’ in  one class  for the purpose of recruitment, both U.D.Cs. as  well as L.D.Cs. It was therefore contended that the rule violated Art. 14 of the Constitution by treating unequals as  equals. The  High Court held that the recruitment was in  accordance with the rule, but struck down the rule as violative of Art. 14. In appeal to this Court, HELD:     (1)   (a)   U.D.Cs.  and  L.D.Cs.  belong   to   a district  wise  cadre,  that is, promotion  from  L.D.C.  to U.D.C.   is  made  district-wise.   Since  the  chances   of promotion  from  L.D.C.  to U.D.C. in  one  district  differ materially  from that of another, a L.D.C. in  one  district may  be promoted as a U.D.C. much earlier than a  L.D.C.  in another  district who may be his senior, more  efficient  or may possess the same or better qualifications.  But Grade-II sub-registrars  are  in  a  statewise  cadre.   Though   the position  of a U.D.C. is superior to a L.D.C, if  the  State treated U.D.Cs. as superior to L.D.Cs. while recruiting  for a  statewise cadre, it would result in great injustice to  a large  section  of  the clerks, because  of  the  fortuitous circumstance of a L.D.C. in a particular district becoming a U.D.C. in that district.  Therefore, the State was justified in not Classifying the U.D.Cs. and L.D.Cs. separately. (b)  Though there was an anomaly in the case of L.D.Cs.  and U.D.Cs. serving in the same district, the anomaly could  not have  been avoided.  The validity of the rule  has  to  be judged by assessing its overall effect and not by picking up

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exceptional  cases.  Further, the rule provides for giving preference to the U.D.Cs. who had put in service of 5  years or more. [552H-553F] (2)  The selection in the present case was made on the basis of  seniority-cum-merit.  A list of all the clerks,  U.D.Cs. as  well as L.D.Cs., was prepared in the order of  seniority as L.D.Cs. and fitness of each person was considered.  Also, those persons who were entitled to be given preference under the  rules were considered separately and recruited  in  the first instance.  The method adopted was the most  reasonable one and was in accordance with the rule. [553H-554B]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 153 of 1971. 550 Appeal from the judgment and order dated October 21, 1970 of the  Andhra  Pradesh High Court in Writ Appeal  No.  240  of 1968. B.   V.   Subrahamanyam  and  G.  Narayana  Rao,   for   the appellants. P.   Ram Reddy and P. P. Rao, for respondents Nos. 1 and 2. M.   Natesan, Venkataramhiah and K. Jayaram, for respondents Nos. 3 to 21. The Judgment of the Court was delivered by Hegde, J.-The principal question that arises for decision in this  appeal by certificate is as to the vires of Rule 5  of the Andhra Pradesh Registration Subordinate Service  Special Rules, to be hereinafter referred as "the rules".  The  High Court  has  struck down this rule on the ground that  it  is violative  of Art. 14 of the Constitution.  As a  result  of that conclusion, it has also quashed the recruitment of some of  the respondents made in March, 1965 for being posted  as Sub-Registrars Grade-11. The petitioners as well as respondents No. 3 onwards in  the Writ  Petition were serving as clerks, either in  the  upper division  or in the lower division, in the Registration  and Stamps  Department  including the office  of  the  Registrar General  of Births, Deaths and Marriages and the  Office  of the  Registrar  of the Firms.  Some of the  respondents  had been recruited by the Inspector General of Registration  and Stamps,   Andhra  Pradesh  for  being  appointed   as   Sub- Registrars.   The  petitioners challenged  the  validity  of their  recruitment  on various grounds, by means of  a  Writ Petition under Art. 226 of the Constitution.  But that peti- tion was summarily dismissed by a single Judge of the Andhra Pradesh High Court.  Thereafter, the matter was taken up  in appeal  to  a Division Bench of that  Court.   The  Division Bench rejected all the contentions of the petitioners except one viz. that rule 5 of the rules is ultra vires Art. 14  of the Constitution.  As a result. of that conclusion it struck down  the  impugned recruitments.  Only two  questions  were presented before us for decision viz :               (i)   whether  rule  5 of the rules  is  ultra               vires Art. 14 of the Constitution; and               (ii)  whether the recruitments made are not in               accordance with the rules. At  this stage, it may be mentioned that the High Court  has held that the impugned recruitments were made in  accordance with 551 the rules.  In other words, the second question was  decided against the petitioners. We shall first take up the question as to the vires of  rule

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5. The rules provide for the promotion to the posts of  Sub- Registrar as well as for recruitment to those posts.  Rule 2 provides  that  a post of Grade-I  Sub-Registrar  should  be filled by promotion from Grade-11 Sub-Registrar.  So far  as Grade  II  Sub-Registrars  are concerned,  they  are  to  be appointed either by promotion from reserve Sub-Registrars or by   "recruitment  by  transfer  from  the  clerks  of   the Registration  and Stamps Department including the Office  of the  Registrar General of Births, Deaths and  Marriages  and the Office of the Registrar of the Firms." Rule 5 deals with qualifications   for  being  recruited  as   Grade-11   Sub- Registrars.  That rule reads :               "Qualifications   : -No  person   shall   be               eligible  for  appointment  to  the   category               mentioned   below  unless  he  possesses   the               qualification shown.               Category and qualifications               1.    Sub-Registrars, II Grade :-(i) Must be a               permanent  clerk  and must have served  for  a               period of not less than seven years on duty as               clerk   in   the   Registration   and   Stamps               Department  including the office of the  Regi-               strar-General of Births, Deaths and  Marriages               and the Office of the Registrar of Firms;               (ii)  Must have passed the Registration  Test;               and               (iii)(1)   Must  have  taken  at   the   final               examination  at  the  end  of  his  school  or               college   course,   one   of   the   following               languages, namely :--               Telugu, Hindi, Oriya, Kannada, Tamil, Urdu  or               Marathi, or               (2)   Must   have   passed   the    Government               Translation Test or the Second Class  Language               Test-Full Test.               "(iv)  Must  have  passed  the  second   class               language  Test-Full Test-in a  language  other               than that taken for S.S. L. C. or University."               Preference  shall be given to persons who,  in               addition  to the qualifications  specified  in               items (i) to (iii) possess a degree in Law  of               University   in   the  State  or   any   other               equivalent  qualification  or  a  Pleader-ship               Certificate in the First Grade or who have put               in five years service in               552               the  category of Upper Division Clerks in  the               Registration Department." It  was  urged that this rule is violative Art.  14  of  the Constitution  because  though  among the  clerks  there  are U.D.Cs., as well as L.D.Cs., yet all of them had been put in one  class  for  the purpose of  recruitment.   As  per  the Ministerial  Service  Rules the U.D.Cs. had to  be  selected from  the L. D. Cs. after the L. D. Cs. had put  in  certain number  of  years of service and after they had  passed  the Accounts Test as well as the Registration Test.  A U. D.  C. holds  superior  post to that of a L. D. C.  His  salary  is higher and his conditions of service are better than that of a  L. D. C. Hence it was urged that as rule 5 treats  U.  D. Cs.  as  well  as  L. D. Cs. as equal  for  the  purpose  of recruitment  for the post of a Grade II  Sub-Registrar,  the rule  violates the doctrine of equality.  According  to  the petitioners the equality doctrine is attracted not only when equals  are treated as unequals but also where unequals  are treated  as  equals.   It was contended  on  behalf  of  the

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petitioners that a statutory provision may offend Art. 14 of the Constitution both by finding differences where there are none  and by making no difference where there is  one.   The proposition of lam( advanced on behalf of the petitioners is unexceptionable.   This Court ruled in  Kunnathat  Thathunni Moopil Nair v. The State of Kerala another(1) that when  the statute obliged every person who held land to pay tax at the flat rate prescribed, whether or not he made any income  out of the property, or whether or not the property was  capable of   yielding  any  income,  there  being  no   attempt   at classification in the provisions of the statute, the Statute denied   equality   before   law   because   of   lack    of classification.   Similar views have been expressed by  this Court  in other decisions.  It is not necessary to refer  to those decisions. On the other hand it was argued on behalf of the  contesting respondents that before considering the vires of rule 5,  we must first ascertain the reason behind the rule to find  out whether  in  fact there is discrimination.   The  contesting respondents do not ’deny that the position of a U. D. C.  is superior  to  that of a L. D. C. But according  to  them  it became  necessary for the State to pool together the  U.  D. Cs. as well as the L. D. Cs. for the purpose of  recruitment in question for the following reasons:- The  Grade  II  Sub-Registrars are  in  a  state-wise  cadre whereas  the U. D. Cs. and L. D. Cs. belong to  a  district- wise  cadre.   Promotion from L. D. C to U. D.  C.  is  made district-wise.  The chances of promotion from L. D. C. to U. D. C. in one district (1) [1961] 3 S.C.R. 77. 553 materially differs from another district.  It depends on the number of posts available in a particular district.  In  one district a L. D. C. may be promoted as a U. D. C. as soon as he puts in a service of 5 years, whereas in another district a  L. D. C. possessing the same or better qualifications  as well as efficiency may not be promoted as a U. D. C. for  15 years or more.  That being so while making recruitment to  a state-wise  cadre it was not possible for the State to  make distinction  between  the L. D. Cs. and the U. D.  Cs.   The only  reasonable basis that could have been adopted  was  to treat  the  U.  D. Cs. and L. D. Cs. as one  class  for  the purpose  of  recruitment.   But at the same  time  the  rule provides for giving preference to the U. D. Cs. who had  put in  a service of 5 years or more.  There is force  in  these contentions though there may be some anomaly in the case  of L.  D. Cs. and U. D. Cs. serving in the same district.   But that anomaly cannot be avoided.  The validity of a rule  has to  be  judged by assessing its over-all effect and  not  by picking up exceptional cases.  What the court has to see  is whether  the  classification made is a just one  taking  all aspects into consideration.  On the facts before us we are unable to agree that for  the purpose  of recruitment with which we are  concerned  herein the State should have classified the U. D. Cs. and L. D. Cs. separately.  If the State had treated the U. D. Cs. as being superior  to  the  L.  D.  Cs.  for  the  purpose  of   that recruitment  it  would  have resulted in  a  great  deal  of injustice to a large section of the clerks.  The  fortuitous circumstance of an officer in a particular district becoming a U. D. C. would have given him an undue advantage over  his seniors  who  might  have been as  efficient  or  even  more efficient than himself, merely because they chanced to serve in some other district.  For the reasons mentioned above, we do not think that in the present case the State can be  said

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to have treated unequals as equals.  The rule of equality is intended to advance justice by avoiding discrimination.   In our opinion the High Court by overlooking the reason  behind Rule  5 came to the erroneous conclusion that the said  rule violated Art. 14 of the Constitution. We  agree with the High Court that there is no substance  in the  petitioners’ contention that the impugned  recruitments were  not made in accordance with Rule 5. It is  clear  from the affidavit filed on behalf of the State and the Registrar that  the  Registrar  had considered the  case  of  all  the qualified  clerks, but the Registrar thought that  the  best basis  for  recruitment  was to prepare a list  of  all  the clerks,  U. D. Cs. as well as L. D. Cs. arranging the  names in  the  order  of seniority as L.  D.  Cs.  and  thereafter consider each name and reject the unfit.  In other 454 words, the selection was made on the basis of seniority-cum- merit -the seniors among the clerks were selected  subject to suitability.  Those persons who were entitled to be given preference  under the rules were considered  separately  and recruited at the first instance.  Only thereafter the  other recruitments were made.  The rules do not prescribe that the recruitment  should be made on the basis of merit and  merit alone.   Bearing in mind the fact that the recruitment  with which  we  are concerned in this case is  a  recruitment  by transfer which means recruitment from among, the ministerial officials, the method adopted by the Registrar appears to us to be the most reasonable one. In  the  result  this appeal is allowed, the  order  of  the Division  Bench of the High Court is set aside and  that  of the  single  judge restored.  In the  circumstances  of  the case, we direct the parties to bear their own costs in.  all the courts. V.P.S. Appeal allowed.. 555