REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.     6583-6584            0F 2008 (Arising out of S.L.P.(C) Nos. 3498-3499 of 2005)

T. VENKATESWARULU — APPELLANT

VERSUS

EXECUTIVE OFFICER, TIRUMALA TIRUPATHI DEVASTHANAMS & ORS.

— RESPONDENTS

J U D G M E N T

D.K. JAIN, J.:

Special leave granted.

2. These appeals are directed against a common judgment and

order  dated  8th July,  2004  passed  by  the  High  Court  of

Judicature,  Andhra  Pradesh  at  Hyderabad  in  Cross  Writ

Appeals  No.767  and  846  of  2000.   By  the  impugned

judgment, the Division Bench while reversing the decision

of the learned Single Judge has held that the appellant is

eligible for conversion as Assistant Executive Engineer only

with effect from 26th October, 1989 and not from an anterior

date when he passed the qualifying graduate examination

i.e. 28th August, 1983.

3. To understand the controversy involved, a few material facts

may be stated, which are as under:

The  appellant,  a  diploma  holder,  who  was  initially

sponsored  by  the  Employment  Exchange  for  the  post  of

“Supervisor”,  was  considered  and  appointed  as  a

“Draughtsman Grade-I” in Tirumala Tirupathi Devasthanams

(for  short  ‘TTD’)  on  3rd August,  1977.   The  post  of

Draughtsman Grade-I was considered to be lower to the post

of “Supervisor”.  On 17th March, 1978, by G.O. 563, the State

of Andhra Pradesh provided some promotional opportunities

to  the  Supervisors.   It  was  ordered  that  Supervisors  who

acquire  engineering graduate qualification may be promoted

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temporarily to the post of Junior Engineers.  The TTD Rules,

1978 came into force on 2nd August, 1978.  Under these Rules,

the only method of recruitment to the post of Junior Engineer

was  by  direct  recruitment  and,  therefore,  under  the  1978

Rules, there was no provision for promotion of Supervisors as

Junior  Engineers.   It  was  only  by  virtue  of  G.O.  563,

Supervisors,  who  had  acquired  BE  qualification  could  be

promoted  as a Junior  Engineer.   By G.O.  No.173 dated 8th

April, 1981, the post of Junior Engineer was re-designated as

Assistant Executive Engineer and the post of Supervisor was

re-designated as Assistant Engineer.

4. The appellant acquired BE Degree  on 28th August,  1983.

Aggrieved by the denial of the same benefit as was extended

to the Supervisors, the appellant filed a writ petition in the

High Court.   By judgment dated 22nd August,  1986,  TTD

was directed to consider the appellant’s case for promotion

as  Junior  Engineer,  re-designated  as  Assistant  Executive

Engineer, if he was otherwise eligible according to the rules.

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5. Pursuant to and in furtherance of the said direction by the

High  Court,  the  appellant  made  a  representation  to  the

authorities  concerned,  which  was  rejected  on  19th April,

1987 for the reason that he was found to be not eligible for

promotion as Assistant Executive Engineer under the TTD

Service  Rules,  1978.   The  appellant  challenged  the  said

order  by  filing  another  writ  petition,  which  was  again

disposed of on 30th March, 1990, with a direction to the TTD

Management  to  consider  the  appellant’s  case  taking  into

consideration the promotional channels set out for Category

5  employees  in  the  engineering  department,  meaning

thereby the appellant was to be considered for promotion on

the basis of the rules existing as on the date of the order.  It

may be noted that on 24th October, 1989, TTD Employees

Service Rules, 1989 (for short ‘the 1989 Rules’) had come

into force.  Pursuant to the said direction, the case of the

appellant  was  considered  under  1989  Rules  and  he  was

appointed,  on  conversion,  as  an  Assistant  Executive

Engineer with effect from 26th October, 1989, i.e. the date

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with effect  wherefrom the 1989  Rules  were  enforced  vide

G.O. Ms. No.1060.

6. Still being dissatisfied with the treatment meted out to him,

the appellant preferred yet another writ petition in the High

Court.   The  grievance  of  the  appellant  before  the  High

Court,  sans  unnecessary  details,  was  that:–  (i)  he  was

entitled  to  appointment  by  conversion  as  Assistant

Executive Engineer from the date next to the last date of his

qualifying  degree  examination  viz.  28th August,  1983,  (ii)

persons similarly situated like him had been appointed by

transfer  as  Assistant  Executive  Engineers  and  were

accorded the benefit of such promotion with effect from the

date  on  which  the  Management  of  TTD  by  Resolution

adopted G.O. Ms. No.563 dated 17th March, 1978 (order of

the  Government  granting   promotional  benefits  in  the

category  of  Assistant  Executive  Engineers  to  graduate

qualified  Supervisors)  and,  therefore,  the  action  of  the

Management  in  not  extending  a  similar  benefit  to  the

appellant  amounts  to  hostile  discrimination,  violative  of

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Article  14  and  16  of  the  Constitution  and  (iii)  on

representation  by  the  Supervisors,  the  TTD  Management

had  granted  benefit  in  the  promotional  post  of  Assistant

Executive Engineer to them with effect from the date of their

acquiring  graduate  qualification  in  Engineering,  which

benefit has been denied to him.

7. Refuting  the  allegations  made  by  the  appellant,  the  TTD

Management  stated  that  the  benefit  of  conversion  under

G.O. Ms. No. 563 dated 17th March, 1978, was granted by

the  State  Government  only  to  the  category  of  graduate

Supervisors for promotion to the post of Assistant Executive

Engineers and not to Draughtsman Grade-I, which benefit

continued  to  be  available  only  to  the  Supervisors  till  a

provision  was  made  in  the  1989  Rules  vide  G.O.  Ms.

No.1060  dated  24th October,  1989,  creating  a  channel  of

promotion for Draughtsman Grade-I also to the category of

Assistant  Executive  Engineers  on  acquisition  of  graduate

qualification.  It was, thus, pleaded that it was on account

of the said amendment that the appellant became eligible

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for the said promotion with effect from 26th October, 1989

and  was  given  promotion  accordingly  and  that  the  two

cadres of “Supervisors” and “Draughtsman Grade-I”  being

distinct, no element of discrimination was involved in not

extending the same benefit to the two cadres.

8. On  consideration  of  the  material  on  record,  the  learned

Single Judge finally concluded as under:

“It  is  admitted  by  the  TTD  that  though  the Supervisors who were given the benefit initially from the  date  of  resolution  of  the  Board  adopting  the orders of the Government, they were subsequently given the benefit  with effect from the date of their acquisition of  graduate qualification.  In  so far as the  petitioner  is  concerned,  it  is  stated  that  the Government has been addressed to clarify whether the case of the petitioner could also be considered for appointment as an Assistant Executive Engineer with effect from 29.08.1983, the date on which he acquired  the  graduate  qualification.   At  the  same time, it is averred that the petitioner is not eligible for conversion as Assistant Executive Engineer with retrospective  effect  from  29.08.1983.   Genuine reasons  are  not  advanced  by  the  respondent  in support  of  this  contention.   In  the  circumstances above, this court is of the considered view that the respondent TTD is obligated to consider the case of the  petitioner  for  extension  of  the  benefit  of conversion  to  the  category  of  Assistant  Executive Engineer with effect from the date next to the date he  acquired  graduate  qualification  on  par  with similarly  situated  persons  who were  extended  the

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said  benefit  viz.  Supervisors  who  had  acquired graduate  qualification.   Draughtsman  Grade-I  are entitled to the benefits of conversion consequent on acquisition  of  graduate  qualification,  and  they should  be  treated  similar  to  the  category  of supervisors  who  have  been  extended  the  said benefit.  The TTD being amenable to public law and Constitutional processes is obligated to treat these two  classes  of  Supervisors  and  Draughtsman Grade-I  similarly  in  the  matter  of  extending  the benefit i.e. the date from which the conversion is to be  accorded  viz.  the  date  next  to  the  date  of acquisition of graduate qualification.”

9. Accordingly,  the  learned  Single  Judge  directed  the  TTD

Management  to  consider  the  case  of  the  appellant  for

promotion as Assistant Executive Engineer with effect from

29th August, 1983, the date on which he had acquired the

graduate qualification, within four months.

10.Being  aggrieved  by  the  decision  and  direction  of  the

learned  Single  Judge,  the  TTD Management  preferred  an

intra-  court  appeal  to  the  Division  Bench.   As  noted

hereinabove,  the  Division  Bench  reversed  the  decision  of

the learned Single Judge and consequently dismissed the

writ  petition.   It  appears  that  the  appellant  filed  an

application  before  the  High  Court  seeking  review  of

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judgment dated 8th July, 2004 but it was also dismissed on

1st October,  2004. The appellant, feeling aggrieved by the

judgment rendered by the Division Bench of the High Court,

is before us in these appeals.

11.We have heard learned counsel for the parties.

12.Mr. L. Nageswara Rao, learned senior counsel appearing on

behalf of the appellant submitted that the pay scales of the

“Draughtsman Grade-I” and “Supervisor” being one and the

same, the incumbents in the said post were to be treated

equally and, therefore, the appellant was also entitled to the

benefits  extended  to  the  Supervisors  under  Government

Orders, issued from time to time.  It was urged that on his

acquiring  BE  Degree,  the  appellant  was  eligible  for

promotion to the post of Junior Engineer by conversion in

terms of G.O. 563 dated 17th March, 1978 and then for re-

designation under G.O.173 dated 8th April, 1981, as in the

case of Supervisors.  It was argued that the appellant was

praying  for  parity  in  rank  with  the  Supervisors  and  not

equality with them.

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13.Per  contra,  Mr.  K.  Rajendra Chowdhary,  learned  counsel

appearing  on behalf  of  the  TTD Management,  supporting

the  view  taken  by  the  Division  Bench,  submitted  that

neither  prior  to  the  enforcement  of  1989  Rules  nor

thereafter  the  posts  of  Supervisors  and  Draughtsman

Grade-I  were  equivalent  posts  and/or  there  was  any

functional  or  pay  scale  parity.   It  was  only  by  virtue  of

G.O.1060 dated 24th October, 1989, that the employees in

the cadre of Draughtsman Grade-I, with BE Degree, became

eligible  for  recruitment  to the post  of Assistant Executive

Engineers.  It was, thus, submitted that in the absence of

any rules, regulations or Government Orders in that behalf,

the  appellant  could not be appointed as Junior  Engineer

(now Assistant  Executive  Engineer)  prior  to  24th October,

1989.   Learned  counsel  asserted  that  the  cadres  of

Draughtsman Grade-I  and Supervisor  being different,  the

appellant could not claim any parity with the Supervisors

prior to 26th October, 1989, when they were placed at par

with the Supervisors only as a feeder cadre for recruitment

to the post of Assistant Executive Engineer.  Relying on the

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decision of this Court in State of Andhra Pradesh & Anr.

Vs. K.S. Muralidhar & Ors.1, learned counsel argued that

the  crucial  date  for  all  intents  and  purposes  is  to  be

reckoned  on the  basis  of  the  actual  date  of  appointment

and not on the date of acquiring the degree qualification.

14.Having  bestowed  our  anxious  consideration  to  the  rival

submissions, in our view, there is no scope for interference

with  the  reasoning  and  the  conclusion  reached  by  the

Division Bench.  It is evident from the afore-extracted order

of the learned Single Judge that he accepted the stand of

the appellant to the effect  that the Draughtsman Grade-I

was at par with the Supervisor and, therefore, could not be

treated differently.  According to the learned Judge, being

amenable to public law and constitutional processes, TTD

was obligated to treat the two classes of Supervisors and

Draughtsmen Grade-I similarly in the matter of extending

the benefit  of conversion consequent to the acquisition of

graduation qualification by the Draughtsman Grade-I, as in

the case  of  Supervisors.   We feel  that in the light  of  the

1 (1992) 2 SCC 241

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factual position as emerging from the material  on record,

the learned Single Judge fell into an error in accepting the

plea of discrimination, for which there was no factual basis.

15.Since the plea of parity of Draughtsmen Grade-I with the

Supervisors  had  to  be  examined  on  the  touchstone  of

Articles  14  and  16  of  the  Constitution,  the  burden  was

upon the appellant to establish discrimination by placing on

record cogent materials.  For this purpose, the crucial factor

to be established is not only the functional parity of the two

cadres, but also the mode of recruitment, qualification and

the  responsibilities  attached  to  the  two  offices.   All  this

information is necessary to analyse the rationale behind the

State action in giving different treatment to two classes of

its  employees  and  then  determine  whether  or  not  an

invidious discrimination has been practised.  

16.In  the  instant  case,  there  is  not  even  a  whisper  in  the

pleadings on that aspect.  On the contrary, it is pointed out

by  the  Division  Bench  that  initially  the  scale  of  pay  of

Draughtsman  Grade-I  was  lower  to  the  scale  of  pay  of

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Supervisor.   The  scale  of  pay  of  Supervisor  was  430-20-

650-25-800  whereas  the  scale  of  pay  of  Draughtsman

Grade-I was 400-18-590-20-715.  The revised pay scale of

the  Supervisor  was  700-1200  and  Draughtsman  Grade-I

was 650-1100.  In 1986 when pay scales were revised, the

scale  of  pay  for  the  post  of  Draughtsman  Grade-I  and

Supervisor (Assistant Engineer) were made equal i.e. 1300-

60-1930-70-2630.  Thus, the Division Bench found that the

two  posts  did  not  carry  the  same  scale  of  pay  initially.

Moreover,  indubitably  all  the  aforenoted  Government

Orders, starting 17th March, 1978, giving certain benefits to

graduate Supervisors did not refer to Draughtsman Grade-I.

Even the decision taken by the TTD on 16th March, 1981,

adopting G.O. Ms. No.563 dated 17th March, 1978, did not

refer to the Draughtsman Grade-I and applied only to the

Supervisors  working  in  the  TTD

(civil/electrical/mechanical)  who  had  acquired  graduate

qualification in engineering for appointment by transfer as

Junior  Engineers  in  TTD.   No  one  from  the  cadre  of

Draughtsman  raised  any  demand  for  extending  similar

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benefit  to  them.   It  has  also  been  noted  by  the  Division

Bench that it was the policy of the Government to appoint

only  Supervisors  in Public  Works (Irrigation Department),

who  had  acquired  graduate  qualification  as  Junior

Engineers.  Under these circumstances, the Division Bench

found it difficult and in our opinion rightly, to accept the

submission  of  the  appellant  that  being  at  par  with  the

Supervisors, he was entitled to all  the benefits under the

Government Orders available to the graduate Supervisors.

17.It is well settled that equation of posts and determination

of pay scales is the primary function of the executive and

not  the  judiciary  and,  therefore,  ordinarily  courts  do  not

enter upon the task of job evaluation which is generally left

to expert bodies as several factors have to be kept in view

while evolving a pay structure.  Being a complex matter, the

court will interfere only if there is cogent material on record

to come to a firm conclusion that a grave error has crept in

such  an  exercise  and  court's  interference  is  absolutely

necessary  to  undo  the  injustice  being  caused.   (See:

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Secretary, Finance Department & Ors. Vs. West Bengal

Registration Service Association & Ors.2)

18.In  Devi  Prasad  &  Ors.  Vs.  Government  of  Andhra

Pradesh & Ors.3, a Government order was questioned on

the  ground  of  unreasonableness  in  the  matter  of  giving

weightage for promotion between two categories of servants

inducted  from  different  sources  on  the  ground  that  the

weightage  rule  was  violative  of  Article  14  of  the

Constitution.  Rejecting the challenge, this Court had said

that ultimately it is a matter of Government policy to decide

what weightage should be given as between two categories

of Government servants rendering somewhat similar kind of

service.   There may be that one group would suffer from

hardship  consequent  to  this  rule  and  the  weightage

conferred  thereby.   But  mere  hardship  without  anything

arbitrary in the rule does not cal1 for judicial intervention,

especially when it flows out of a policy which is not basically

illegal.  

2 1993 Supp (1) SCC 153 3 1980 Supp SCC 206

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19.From  a  resume  of  facts  set  out  hereinabove,  it  clearly

emerges  that  prior  to  1989  the  cadre  of  Draughtsman

Grade-I  was treated as a distinct class inasmuch as they

even did not figure in the feeder cadre for recruitment to the

post of Assistant Executive Engineer.  It  was only on 24th

October, 1989, by virtue of G.O. Ms. No.1660, a channel of

promotion  of  Draughtsman  Grade-I  to  the  category  of

Assistant  Executive  Engineer,  on  acquisition  of  graduate

qualification was created.  Though it does appear that the

appellant had been pursuing his remedy for promotion as

Assistant Executive Engineer under the TTD Service Rules,

1978  but  he  always  got  limited  relief  to  the  extent  that

direction was issued by the High Court for consideration of

his case, in terms of the rules existing at that relevant time.

Evidently,  when his writ petition was disposed of on 30th

March, 1990 with a direction to the TTD Management to

consider his case on the basis of the rules, which were in

force at that relevant point of time, he felt satisfied and did

not challenge the said order further.

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20.For all these reasons, we do not see any infirmity in the

decision of the Division Bench warranting our interference

in the  exercise  of  discretionary  and equitable  jurisdiction

under Article 136 of the Constitution.  In our judgment, the

appeals  have  no  substance  and,  therefore,  deserve  to  be

dismissed.

21.For the reasons aforesaid, the appeals must fail  and are

accordingly dismissed.  There will, however, be no order as

to costs.

…………………………………J.      (C.K. THAKKER)  

…………………………………J.      (D.K. JAIN)

NEW DELHI; NOVEMBER 7, 2008.  

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