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PETITIONER: MOHAMMAD SHUJAT, ALI & ORS. etc.

       Vs.

RESPONDENT: UNION OF INDIA & ORS. etc.

DATE OF JUDGMENT03/05/1974

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. RAY, A.N. (CJ) KHANNA, HANS RAJ MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A.

CITATION:  1974 AIR 1631            1975 SCR  (1) 449  1975 SCC  (3)  76  CITATOR INFO :  R          1975 SC  73  (13)  E          1975 SC2089  (6)  R          1976 SC 490  (166,207,212)  F          1977 SC 713  (2)  D          1977 SC1233  (14)  RF         1979 SC 478  (120)  R          1980 SC 452  (49)  R          1981 SC1699  (12)  R          1985 SC1272  (3)  R          1986 SC1830  (39)  F          1987 SC 367  (10)  R          1987 SC 415  (8,9)  D          1987 SC1527  (33)  RF         1987 SC1676  (20)  E          1989 SC 307  (5,6,8)  R          1989 SC1247  (8)  E&R        1989 SC1308  (3,5,6,7)  E&D        1989 SC1624  (11)  D          1989 SC1713  (10)  R          1990 SC 166  (13)

ACT: States Reorganisation Act, 1956, Proviso to Section  115(7)- Variation  of conditions of service  applicable  immediately before  November  1, 1956, to the  disadvantage  of  persons allotted  to serve in a State--"Previous  approval"  meaning of. Andhra Pradesh Engineering Service Rules.  1966-Non-graduate Supervisors from Hyderabad State. promotion of-Reduction  of in  18  and ultimately to 1 in 24-Sec.  115(7).  Proviso  to States Reorganisation Act, if attracted. Constitution  of India, 1950, Articles 14  &  16-Educational qualification  valid  basis for  classification-Fixation  of quota for Promotion of graduate supervisors and non-graduate supervisors, if discriminatory. Educational qualifications, equivalence of--Decision of  the Govt., when can be interfered with,

HEADNOTE:

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The   petitioners/appellants   were   holders   of    Upper Subordinate or Overseers.  Civil Engineering certificates of Osmania  Engineering  College and they were  all  originally recruited  to  the cadre of Sub-Overseers in  the  Hyderabad Service  of Engineers in the erstwhile State  of  Hyderabad, and  with  the  exception of: one,  they  were  promoted  as Supervisors   prior   to  1st  November   1956,   when   the reorganisation  of  States  took  place  under  the   States Reorganisation Act, 1956.  Now on the reorganisation of  the State  of  Andhra Pradesh. the posts of Supervisors  in  the erstwhile State of Hyderabad were equated with the posts  of Junior Engineers/Supervisors in the State of Andhra  Pradesh in accordance with the principles for equation of posts laid down  at  the  Conference of Chief  Secretaries  of  various States  held  on  30th April and  1st  May,  1956.   Certain criteria  were laid down at this Conference for fixation  of inter  se  seniority of officers holding  equivalent  posts. The Sub-Engineers from the erstwhile State of Hyderabad were promoted  as  Assistant  Engineers  with  effect  from  31st October,  1956, afternoons and they came to be  allotted  to the State of Andhra Pradesh as Assistant Engineers.   Though the Andhra Rules continued to govern the Engineering Service in  the  State of Andhra Pradesh by Way  of  exception.  the Government  of  Andhra  Pradesh, in  consultation  with  the officer  deputed  by the Government of India  to  advise  on problems  relating  to integration of  services.  issued  an order dated 7th April, 1960. directing that all employees of the  erstwhile State of Hyderabad would be governed  by  the Hyderabad Rules for promotion after, 1st November, 1956,  to posts  one stage above those held by them immediately  prior to 1st November, 1956.  It was, however, made ’clear in this order  that subsequent promotions after one stage  promotion would  be governed by the Andhra Rules or the Rules made  by the  Government  of  Andhra Pradesh.   The  State  Board  of Technical  Education,  a  high-powered  body  comprising  of administrators, educationists and technical experts, at  its meeting  held  on  1st June,. 1962,  agreed  with  the  view expressed  by  the  Special Committee that  the  US  or  OCE certificates of the Osmania Engineering College could not be equated with LCE, or IME or LEE diplomas.  The Government of Andhra Pradesh then, reconsidered the question in the  light of  the opinion expressed by the Special Committee  and  the State  Board of Technical Education and took the  view  that the  contention  of the non-graduate, Supervisors  from  the erstwhile  State of Hyderabad was not tenable.  The  Central Government affirmed the decision of the Government of Andhra Pradesh    after   giving   due   consideration    to    the representations  of  these non-graduate supervisors  an  the basis of the recommendations of the Advisory Board. Meanwhile,  on  22nd  February  1967,  the  Andhra   Pradesh Engineering  Rules,.  1966,  were made by  the  Governor  of Andhra Pradesh in exercise of the powers conferred under the Proviso  to  Article 309 of the Constitution.  There  was  a substantial  change made by the Andhra Pradesh Rules in  the mode of recruitment to the posts of Assistant Engineers.  By the  new clause 2(c)(2) substituted in the place of the  old clause on 12th January, 1968, the ratio of 450 promotion  between  graduate  Supervisors  and  non-graduate Supervisors  was  altered and instead of two  out  of  three vacancies being filled by graduate Supervisors, three cut of four  vacancies were to be filled by  graduate  Supervisors, with  the  result  that the cyclic  order  of  rotation  now consisted of twenty-four instead of eighteen vacancies.  The appellants,  thereupon preferred writ petitions in the  High

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Court  of  Andhra Pradesh. challenging the validity  of  the orders  dated 3rd October, 1960, and 14th February, 1963  as also  of  the  Andhra Pradesh Rules  on  various  legal  and constitutional  grounds.  The Full Bench ,of the High  Court rejected  the contentions of the, appellants  and  dismissed the  writ  petitions.  After  obtaining  certificates,  they preferred  these appeals.  In W.P. No. 218 of 1970 filed  in this  Court  under  Article  32  of  the  Constitution,  the petitioners  hold LCE diplomas.  Some of them were  directly recruited  as Supervisors in the State of Andhra.  prior  to 1st  November. 1956. and others were directly  recruited  as Supervisors  in  the State of Andhra Pradesh  subsequent  to ,hat  date.   Their grievance was that  the  Andhra  Pradesh Rules adversely affected them and others directly  recruited as non-graduate Supervisors. The  petitioners/appellants contended that (i) the  decision of the Government of Andhra Pradesh (which was confirmed  by the Government of India) treating US and OCE certificates of the  Osmania Engineering College as inferior to US  and  LCE diplomas of the College of Engineering, Guindy and LCE,  LME or  LEE,  diplomas of any other recognised  institution  and equating them with US or OCE certificates of the College  of Engineering.  Guindy, was erroneous and should be set aside; (ii)   The  non-graduate  Supervisors  from  the   erstwhile Hyderabad  State  who  were, prior to  1st  November,  1956, entitled  to  have  50% ,of the vacancies in  the  posts  of Assistant Engineers available to them for promotion, are now entitled  to have only one out of twenty-four  vacancies  in ’the  posts  of Assistant Engineers available  to  them  for promotion.   In  as much as the Andhra  and  Andhra  Pradesh Rules varied to their disadvantage the conditions of service applicable to them immediately prior to 1st November.  1956. they were ineffectual and void by reason of contravention of the  mandatory requirement of the proviso to Sec. 115,  sub- section  (7) of the States Reorganisation Act,  1956;  (iii) The promotions made from and after 1st November. 1956.  upto 22nd February 1967, should be reviewed on the basis that the Hyderabad  Rules  governed  the  promotion  of  non-graduate Supervisors from the erstwhile Hyderabad State, because  the promotion  from  the posts of Supervisors to  the  posts  of Assistant Engineers from and after 1st November 1966,  being one  stage  promotion,  the promotion was  governed  by  the Hyderabad  Rules  unto 22nd February, 1967, when  they  were superseded by the Andhra Pradesh Rules: and (iv) The  Andhra Pradesh  Rules  in  so  far  as  they  discriminate  between graduate Supervisors and non-graduate Supervisors by  fixing initially  the ratio ,of three to one between  graduate  and non-graduate Supervisors for the purpose of promotion to the posts of Assistant Engineers are violative of Article 14  of the Constitution of India and hence void. Dismissing the appeals and the writ petitions, HELD  :  (1)  The  question  in  regard  to  equivalence  of educational qualifications is a technical question based, on proper  assessment and evaluation of the relevant.  academic standards and practical attainments of such  qualifications. It is only where the decision of the Government is shown  to be  based  oft extraneous or  irrelevant  considerations  or actuated  by  mala  fides or  irrational  and  perverse  ,or manifestly  wrong that the Court would reach out its  lethal arm  and  strike down the decision of  the  Government.   It cannot  be said in the present case that the view  taken  by the Government of Andhra Pradesh suffered from any of  these infirmities.   Nothing  could be alleged on  behalf  of  the petitioners appellants against those constituting the  High- powered expert body.  It may also be noted that even in  the

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erstwhile State of Hyderabad itself, US and OCE certificates of  Osmania, Engineering College were not. treated on a  par with LCE, LME or LEE diplomas. [466B-E] (ii)The  Limitation imposed by the proviso  to  sub-section (7)  of Section 115 of the States Reorganisation Act,  1956, is  that  the State cannot vary the  conditions  of  service applicable  immediately before 1st November,, 1956,  to  the disadvantage of persons allotted to serve in connection with the affairs of the State, except with the previous  approval of the Central Government.  Now the only right in regard  to promotion which the condition of service immediately 451 prior   to  1st  November,  1956,  gave   the   non-graduate Supervisors from the erstwhile Hyderabad State was the right to  be considered for promotion to 50% of the posts of  Sub- Engineers.  A rule which confers a right of actual promotion or  a  right  to  be considered  for  promotion  is  a  rule prescribing a condition of service.  This proposition can no longer be disputed in view of several pronouncements of this Court. [468C-E; H] Mohammad Bhakar v. Krishna Reddy, 1970 Service law  Reporter 768,  State  of Mysore  v. G. B. Purohit, C.A. No.  2281  of 1965,  decided on 25th January 1967. and Ramchandra  Shankar Deodhar & Ors. v. The State of Maharashtra, W.P. No. 299  of 1969, decided on 12th November, 1973, referred to and relied on. Now. here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment  of the  Andhra  Pradesh Rules was that the number of  posts  of Assistant  Engineers available to  non-graduate  Supervisors from  the  erstwhile  Hyderabad  State  for  promotion,  was reduced  from  50% to 33-1/3%. then to one in  eighteen  and ultimately  to  one  in  twenty  four.   The  right  to   be considered for promotion was not affected but the chances of promotion  were severely reduced.  This did  not  constitute variation   in   tile  condition   of   service   applicable immediately prior to 1st November, 1956, and the proviso  to Section 115, sub-section (7) was not attracted. [469D] Even  if  the  application  of  the  Andhra  Rules  and  the enactment  of Andhra Pradesh Rules constituted variation  in the  condition of service in regard to promotion  applicable immediately prior to 1st Nov. 1956. to the disadvantage:  of non-graduate Supervisors from the erstwhile Hyderabad State, there  was  previous approval of the Central  Government  to such variation and the requirement of the proviso to section 115, sub-section (7) was satisfied.  It will be evident from the memorandum dated 11th May, 1957, and particularly  para- graph  6 read with paragraph 3 that. so far as  departmental promotion  is  concerned, the  Central  Government-told  the State Governments that they might, if they so desire, change the  conditions of service and for this purpose  they  might assume  the  previous  approval  of  the  Central  Govt.  as required  by the proviso to Sec. 115 sub-section  (7).   The conditions of service specifically dealt with in paragraph 3 of  the ’memorandum included those relating to  departmental promotion  and  under  paragraph 6 of  the  memorandum,  the Central  Government  gave  its  previous  approval  to   any alteration  which  the  State  might wish  to  make  in  the conditions  of service relating to  departmental  promotion, because in the opinion of the Central Government, they  did- not  need  to  be  protected.   The  argument  against  such construction  is  not valid.  In the setting  in  which  the proviso   to  section  115(7)  is  placed.  the   expression "previous  approval" would include general approval  to  the variation  in  the  conditions  of  service  within  certain

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limits, indicated by the Union Government. [469G; 470EF] N.Raghavendra  Rao v. Deputy Commissioner, South  Canara. Mangalore,  [1964] 4 S.C.R., 549, and N. Subba Rao v.  Union of  India,  A.I.R.  1973  S.C.  69,  followed  View   contra expressed  in Mohammed Bhaker’s case, G D. Vaid v. State  of Punjab  [1972]  1 S.C.R. 896 and State of Haryana v.  S.  J. Bahadur [1973] 1 S.C.R. 249 not followed. (ii)It  can  hardly be disputed that tinder  the  Hyderabad Rules,  the Post on,-- stage above that of  Supervision  was the post of Sub-Engineer and it was only from the post  Sub- Engineer  that  promotion  lay  to  the  post  of  Assistant Engineer.   Now  the  cadre  of  Sub-Engineers  having  been abolished  by  the  Government of Andhra  Pradesh  from  1st November.  1956  with  a  view  to  absorb  and’  assimilate officers holding the post of Sub-Engineer immediately  prior to  1st  November 1956, in the Engineering  service  of  the State  of  Andhra  Pradesh, the  Government  promoted  these officers as Assistant Engineers and they were placed en bloc below  the Assistant Engineers of the Telangana  and  Andhra regions in seniority.  But this does not mean that the  post of Sub-Engineer was equaled with that of Assistant  Engineer in  the State of Andhra Pradesh.  The post  of  Sub-Engineer was abolished and there was no question of equating it  with the  post  of  Assistant Engineer.  The  post  of  Assistant Engineer  was, therefore, not a post of one stage  promotion from  the  post  of Supervisor.  Contention  based  on  rule 42(h)(i)  of  the  Andhra  Pradesh  Rules  has-also  to   be rejected,  because, in the first place, the Hyderabad  Rules did  not  provide for promotion directly from  the  post  of Supervisor to the post of Assistant 452 Engineer,  and secondly, under the Hyderabad Rules,  a  non- graduate  Supervisor  would  not  have  been  qualified  for promotion to the post of Assistant Engineer.[1474H;  475A-D; 476E-F] (iv)This  Court  has held  that  educational  qualification could form a valid basis for classification. [479C] State of Mysore v. Narasing Rao [1968] 1, S.C.R. 407, (Union of India v. Dr. (Mrs.) S. B. Kohli, [1973] 3 S.C.C. 592, and State of Jammu and Kashmir v. Triloki  Nath Khosa, [1974]  1 S.C.C. 19, relied on. Morey v. Doud, 354 U.S. 457, 473 referred to. But, where graduates and non-graduates are both regarded  as fit and, therefore, eligible for promotion, it is  difficult to   see.  how  consistently  with  the  claim   for   equal opportunity, any differentiation can be made between them by laying  down  a  quota  of promotion  for  each  and  giving preferential  treatment to .graduates over non-graduates  in the fixation of such quota.  The result of fixation of quota of  promotion for each of the two categories of  Supervisors would be that when a vacancy arises in the post of Assistant Engineer,  which.  according to the quota  is  reserved  for graduate  Supervisors, a non-graduate Supervisor  cannot  be promoted to that vacancy, even if he is senior to all  other graduate  Supervisors  and  more suitable  than  they.   His opportunity  for  promotion would be  limited  to  vacancies available for non-graduate Supervisors.  That would ,clearly amount to denial of equal opportunity to him.  But even  so, this  Court ,cannot be persuaded to strike down  the  Andhra Pradesh Rules in so far as they make differentiation between graduate and non-graduate Supervisors.  This differentiation is  not  something brought about for the first time  by  the Andhra  Pradesh  Rules.   It has always been  there  in  the Engineering Services of the Hyderabad and the Andhra States. The  graduate  Supervisors  have always been  treated  as  a

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distinct  and separate class from  non-graduate  Supervisors both  under the Hyderabad Rules as well as under the  Andhra Rules  and they have never been integrated into  one  class. In fact. under the Andhra Rules, a different nomenclature of Junior  Engineers  was given to graduate  Supervisors.   The same differentiation into two classes also persisted in  the reorganised State ,of Andhra Pradesh with regard to the  pay scale  and also in the common gradation list of  Supervisors finally  approved  by  the Government  of  India.   The  two categories  of  Supervisors were thus never fused  into  one class, and no question of unconstitutionality could arise by reason  of  differential.  treatment being  given  to  them. [480C-D; 481C-D; F-G]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petitions Nos. 385 of 1969  and 218 of 1970. Petitions under Art. 32 of the Constitution of India.  Civil Appeals Nos. 601 to 605 and 954, 955 of 1972. From the judgment and order dated the 21st/29th January 1972 of  the  Andhra Pradesh High Court in W. Ps.   Nos.  169/68, 1721,  3407/69,  3784  & 5677/70, and 626  and  47  of  1970 respectively. H.S.  Gururaja, S. Markandeya and P. K. Pillai,  for  the petitioners/ appellants. M.K.   Ramamurthy   and   B.   Parthasarathy,   for   the petitioners/ respondents. S. P. Nayar and P. C. Kapur,for respondents. P.   Ram Reddy and A. V. V. Nair, for respondents. P.   Ram Reddy and P. P. Rao, for the respondents. M.   S. K. Sasthi and B. Parthasarthy, for respondents. Y.   S.  Chitale, M. J. Rao, P. L. N. Sharma and G. N.  Rao, for the intervener/respondents. The Judgment of the Court was delivered by BHAGWATI,  J.-These writ petitions and appeals  are  broadly divisible  into  two groups, one group  consisting  of  Writ Petition No. 385 of 453 1969 and Civil Appeals Nos. 601-605 and 954-955 of 1972  and the  other consisting of Writ Petition No. 218 of 1970.   We shall  first state the facts in regard to Writ Petition  No. 385  of 1969 and Civil Appeals Nos. 601-605 and  954-955  of 1972 and then proceed to deal with Writ Petition No. 218  of 1970 which raises a slightly different dispute. Writ Petition No. 385 of 1969 and Civil Appeals Nos. 601-605 and  954-955 of 1972 concern a dispute which has been  going on since the last over fifteen years in regard to absorption and  integration  of Supervisors of the erstwhile  State  of Hyderabad  in  the Engineering Service  of  the  reorganised State  of Andhra Pradesh.  It would be convenient  to  start the   narration   of  facts  with  a  description   of   the organisation and structure of the Engineering Service in the erstwhile State of Hyderabad, for the petitioners/appellants were Supervisors belonging to that Service immediately prior to  the reorganization of the States on 1st  November,  1956 and  it  is  their contention that  on  absorption  and  in- tegration into the Engineering Service of the newly  formed- State  of Andhra Pradesh, equality of opportunity  has  been denied  to  them by the State of Andhra  Pradesh  and  their conditions   of   service  have  been   altered   to   their disadvantage without complying with the requirement of  law. The   Hyderabad  Service  of  Engineers  consisted  of   two sections,  one  called State Service and  the  other  called

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Subordinate  Service.   The State Service comprised  of  two classes, namely, Class 1 and Class 11.  Class 1 consisted of superior  posts of Chief Engineer,  Superintending  Engineer and  Executive Engineer and Junior Scale posts of  Assistant Engineers,  while  Class  11  consisted  of  posts  of  Sub- Engineers.   The Subordinate Service consisted, inter  alia, of  posts  of Supervisors,  Sub-Overseers,  Tracers,  Stores Managers etc. in descending order of rank.  The posts in the State  Service  were  gazetted posts,  while  those  in  the Subordinate   Service  were  non-gazetted.   The  rules   of recruitment  to  the  posts  in State  Service  as  well  as Subordinate  Service  were  made by the  Rajpramukh  of  the Hyderabad  State by a notification dated 28th May,  1954  in exercise  of powers conferred under the proviso  to  article 309  of  the  Constitution.   The  posts  of  Sub-Overseers, according  to  these  rules,  which  may  for  the  sake  of convenience be described as the Hyderabad Rules, were to  be filled  by  direct  recruitment  from  amongst  persons  who possessed   LCE,  LME  or  LEE  or  equivalent  diploma   or certificate  of  any recognized institution.   There  was  a certificate course called the Upper Subordinate (hereinafter referred to as US) Course which was conducted by the Osmania Engineering  College upto 1951 and thereafter from  1952  it was  replaced by another course called the  Overseers  Civil Engineering (hereinafter briefly referred to as OCE)  Course which was also a certificate course conducted by the Osmania Engineering College.  The US and OCE certificates awarded by the Osmania Engineering College were regarded as  sufficient qualifications  for direct recruitment to the posts of  Sub- Overseers.   The posts next above those of Sub-Overseers  in the  hierarchy were those of Supervisors.  Fifty percent  of the  posts  of  Supervisors  were to  be  filled  by  direct recruitment  from amongst persons who were either  graduates in   civil  or  mechanical  engineering  of   a   recognized university or possessed "a diploma or a certificate from  an institution recognized by the Institute of Engineers (India) as exempting from Parts A and B of its As- 454 sociated Membership Examination", while the remaining  fifty percent  were  to be filled by  promotion  of  Sub-Overseers subject to the condition that Sub-Overseers who held only US or  OCE certificates should have put in at least  six  years service.   It was common ground between the parties that  US and OCE certificates of Osmania Engineering College were not regarded  as  sufficient  to qualify  a  person  for  direct recruitment  as Supervisor, while LCE, LME and LEE  diplomas were  accepted as sufficient.  There was only one  exception to this rule and that was made by a notification dated  18th November, 1955 which provided that during the years 1954 and 1955  the  student  who stands first in  the  US  Course  of Osmania  Engineering College shall be eligible for  appoint- ment  to the post of Supervisor.  It might appear that  even earlier  there was such a rule providing that a student  who obtained  first  class  first in OCE  Examination  could  be directly  recruited as Supervisor and support for  existence of such rule was sought from the fact that petitioners  Nos. 1  and 2 in petition No. 385 of 1969 who stood  first  class first in OCE Examination held in 1943 and 1944  respectively were directly recruited as Supervisors.  But it was  pointed out  by  the  learned counsel appearing  on  behalf  of  the respondents that petitioners Nos.  1 and 2 were not directly recruited as Supervisors, but their initial recruitment  was as  Sub-Overseers  and having regard to the fact  that  they stood  first  class  first in  OCE  Examination,  they  were immediately  promoted as Supervisors and these two  solitary

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instances were, therefore, not symptomatic of any  exception to  the rule that US and OCE certificates did not qualify  a person  for direct recruitment as Supervisor.  The posts  of Sub-Engineers  constituted  the  next higher  stage  in  the hierarchy  of the Engineering Service.  They were  Class  II posts  carrying a pay-scale of Rs. 250400.  The  recruitment to the posts of Sub-Engineers was to be wholly by  promotion from  Supervisors.   Fifty percent of the posts  of  Sub-En- gineers  were to be filled by promotion of  Supervisors  who were graduates in engineering and fifty percent by promotion of  Supervisors  who  held LCE.  LME or  LEE  or  any  other equivalent  diploma or certificate or US or OCE  certificate of Osmania Engineering College.  There, were two  conditions which  were  required to be satisfied  before  a  Supervisor could  be eligible for promotion : one was that if he was  a adulate.  he should have put in at least six years’  service as Supervisor and if lie was not a graduate, he should  have put  in at least fifteen years, service as  Supervisor,  and the  other was that he should have passed  the  departmental examination for Assistant Engineers.  So far as the posts of Assistant  Engineers next above those of Sub-Engineers  were concerned, seventy-five percent were to be filled by  direct recruitment  and only tile remaining twenty-five percent  by promotion  of  Sub-Engineers.  But  all  Sub-Engineers  were not eligible for promotion as Assistant Engineers only those Sub-Engineer who were graduates and who were below ;.he  age of forty-five years were qualified to be promoted.  The  net result of these provisions was that those who merely held US or  OCE  certificate of Osmania  Engineering  College  were, barring  the limited and exceptional cases already  referred to,  not  eligible for direct recruitment to  the  posts  of Supervisors; they were eligible for initial appointment only in  the  cadre of Sub-Overseers; they could be  promoted  to fifty  percent of the vacancies in the posts of  Supervisors only  after they had put in a minimum service of  six  years and then also they had to put in a 455 minimum service of fifteen years as Supervisors before  they could  be eligible for being promoted as  Sub-Engineers  and there the chances of promotion available to them came to  an end,  for  they  could not go further  and  be  promoted  as Assistant   Engineers.   The   petitioners/appellants   were holders  of  US or OCE certificates of  Osmania  Engineering College and they were all originally recruited to the  cadre of Sub-Overseers, and, with the exception of one, they  were promoted as Supervisors prior to 1st November, 1956 when the reorganization  of  the States took place under  the  States Reorganization   Act,  1956.   The  effect  of  the   States Reorganization Act, 1956 was that the Telengana  territories of the erstwhile State of Hyderabad were added to the  State of  Andhra  and  with the added territories,  the  State  of Andhra came to be known as the State of Andhra Pradesh.  The petitioners/appellants  who  were  immediately  before   1st November, 1956, serving as Supervisors in the Telengana area of  the  erstwhile  State of Hyderabad,  were  allotted  for service  in  the  State of Andhra Pradesh  and  they  became Supervisors  in  the  State of Andhra Pradesh  as  from  1st November, 1956. The  position  in regard to the  Engineering  Service  which obtained in the State of Andhra prior to 1st November,  1956 was  different.  The territories of the State of  Andhra  at one time formed part of the State of Madras and,  therefore, the Special Rules for the Madras Engineering Service  issued under  the notification dated 28th September, 1953  and  the Special Rules for the Madras Engineering Subordinate Service

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issued  under the notification dated 30th  September,  1953- both under the Proviso to article, 309 of the  Constitution- governed the constitution and recruitment to the Engineering Service-in the State of Andhra.  The Engineering Service  in the State of Andhra was divided into State Service and  Sub- ordinate Service.  The State Service comprised the posts  of Chief   Engineer,   Superintending   Engineers,    Executive Engineers  (Special  Grade), Executive  Engineers  (Ordinary Grade)  and  Assistant  Engineers,  while  the   Subordinate Service  comprised  inter  alia the  Rosts  of  Supervisors, Overseers, Head Draftsmen and Civil Draftsmen.  It will  be- seen that there were no posts of Sub-Overseers in the  State of  Andhra but instead there were posts of  Overseers.   The qualifications  prescribed for appointment to the  posts  of Overseers  were  any one of the following :  (1)  degree  in engineering,  civil  or  mechanical, of  Madras,  Andhra  or Anamalai University, to which the name of Osmania University was  added after the addition to the Telengana area  to  the State  of  Andhra or B.Sc. (Eng.) degree  of  Banaras  Hindu University,  (2) diploma in engineering of, the  College  of Engineering.   Gundy,  which was regarded as  equivalent  to degree  in  engineering,  (3) US of.   LCE  diploma  of  the College of Engineering, Guindy or LCE or LME diploma awarded by  the Technological Diploma Examination Board,  Madras  or Andhra. (4) certificate of having passed sections A and B of AMIE  (Ind.) Examination and (5) Lower Subordinate  (herein- after  referred to as LS) or OCE certificate of the  College of Engineering Guindy.  The next above in the hierarchy were the posts of Supervisors.  The appointments to the posts  of Supervisors could be made either by direct recruitment or by promotion  of  Overseers or Civil Draftsmen I,  II  and  III Grades.  The necessary qualifications for eli- 11-Ll77Sup.CI/75 456 gibility  for  appointment as Supervisor were  the  same  as those for appointment as Overseer with this difference  that LS or OCE certificate of the College of Engineering,  Guindy was  not  regarded as sufficient for direct  recruitment  as Supervisor.   It will thus be seen that according to  Andhra Rules,  the  minimum  qualification  necessary  for   direct recruitment  to  the  posts of Supervisors  was  US  or  OCE diploma of the College of Engineering, Guindy or LCE or  LME diploma  of  the Technological  Diploma  Examination  Board, Madras or Andhra.  The Supervisors who possessed  University degree   in  engineering  or  diploma  of  the  College   of Engineering, Guindy, which, as stated above, was regarded as equivalent  to  degree in engineering,  were  designated  as Junior  Engineers.   So  far  as  the  posts  of   Assistant Engineers   were   concerned,  there  were  two   modes   of recruitment;  one  by direct recruitment and  the  other  by promotion.   The promotions were to be made from  the  cate- gories of Junior Engineers, Supervisors and Draftsmen.   Two out  of  every  three vacancies in the  posts  of  Assistant Engineers were to be filled by promotion of Junior Engineers while  the third was to be filled by promotion from  amongst (i)  directly  recruited Supervisors possessing  US  or  LCE diploma of the College of Engineering, Guindy or certificate of having passed sections A and B of AMIE (Ind.) Examination and  having  put  in not less than five  years’  service  as Supervisors which was later increased to ten years’  service with  effect  from  12th February,  1966,  (ii)  Supervisors promoted   from  the  rank  of  Overseers  and  either   (a) possessing  US or LCE diploma of the College of  Engineering Guindy  or certificate of having passed sections A and B  of AMIE  (Ind.)  Examination and having put in  not  less  than

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fifteen  years’  service,  or  (b)  possessing  LS  or   OCE certificate of the College of Engineering, Guindy and having put  in not less- than twenty years’ service as  Supervisors and   (iii)  Draftsmen  First  Grade  and   Head   Draftsmen possessing  the  same qualifications as those  mentioned  in clause  (ii)  above.  It may be noted that in the  State  of Andhra  there  were  no  posts  of  Sub-Engineers  and   the promotion-  was direct from the posts of Supervisors to  the posts  of Assistant Engineers.  But the posts  of  Assistant Engineers  were Class 11 posts carrying a pay-scale  of  Rs. 250-400  unlike  the  posts of Assistant  Engineers  in  the Hyderabad  State  which were Class 1 posts carrying  a  pay- scale  of Rs. 300-600.  Since on the reorganization  of  the States,  the  State  of Andhra did not cease  to  exist  but continued as such with the territories of the Telengana area added to it and the State of Andhra Pradesh was merely a new name  given to it, the Engineering Service of the  State  of Andhra continued as the Engineering Service of the State  of Andhra  Pradesh  and the Madras  Engineering  Service  Rules dated  28th  September,  1953  and  the  Madras  Engineering Subordinate   Service  Rules  dated  30th  September,   1953 (hereinafter  collectively referred to as the Andhra  Rules) continued to govern the Engineering Service in the State  of Andhra Pradesh from and after 1st November, 1956. Now  on the reorganization of the State of  Andhra  Pradesh, the posts of Supervisors in the erstwhile State of Hyderabad were equated with the posts of  Junior-Engineers/Supervisors in  the  State  of Andhra Pradesh  in  accordance  with  the principles for equation of posts laid down at the conference of  Chief Secretaries of various States held on  30th  April and 1st May, 1956.  Certain criteria were also laid down 457 at  this  conference for fixation of inter se  seniority  of officers holding equivalent posts and on the basis of  these criteria  a  provisional  common gradation  list  of  Junior Engineers/Supervisors from Telengana and Andhra regions  was approved  by  an order dated 20th April, 1963  made  by  the Government  of  Andhra  Pradesh.   This  provisional  common gradation    list   was   communicated   to    the    Junior Engineers/Supervisors after the High Court of Andhra Pradesh was  approached  for necessary orders in that  behalf.   The petitioners/appellants  did  not  object  to  the  positions assigned  to them in the provisional common  gradation  list but  the  principal  representation made by  them  was  that promotions  which  had been made provisionally  pending  the reparation  of the provisional common gradation list  should be  reviewed  so  as to bring them in  conformity  with  the ranking in the provisional common gradation list, as  stated categorically  by  the Government of Andhra Pradesh  in  its memorandum  dated  26th November, 1956 and directed  by  the Government  of India by its letter dated 11th  March,  1959. The   provisional  common  gradation  list  was   thereafter finalised by the Government of Andhra Pradesh in  accordance with  the decision of the Government of India under  section 115(5) of the States Reorganisation Act, 1956 and the  final gradation  list  was  published under an  order  dated  23rd November,  1967  by the Government of Andhra  Pradesh.   The final  gradation  list  consisted of  two  parts,  one  part showing  the inter se seniority of Junior Engineers and  the other  showing  the  inter  se  seniority  of  non-graduate’ Supervisors  and  it was directed that the  final  gradation list   shall  come  into  force  retrospectively  from   1st November,  1956.   It  may be pointed out  that  the  Junior Engineers  shown  in the first part of the  final  gradation list  included not only Junior Engineers from Andhra  region

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but  also graduate Supervisors from Telengana  region.   The petitioners/appellants  being  merely holders of US  or  LCE certificate of Osmania Engineering College were naturally in the second part of the final gradation list relating to non- graduate Supervisors. So far as the posts of Sub-Engineers in the erstwhile  State of  Hyderabad  were  concerned,  there  was  difficulty   in assimilating  these posts in the set up of  the  Engineering Service  in  the State of Andhra Pradesh as  there  were  no posts  in  the Andhra region corresponding to the  posts  of Sub-Engineers.  The Government of Andhra Pradesh, therefore, by  an  order  dated 24th May,  1957,  directed  that  fresh recruitment to the posts of Sub-Engineers should be  stopped with  a view to doing away with this category of posts.   No fresh   recruitment  to  the  posts  of  Sub-Engineers   was accordingly made from and after 1st November, 1956.  But the question  was as to what should be done with regard  to  the officers  holding  the posts  of  Sub-Engineers  immediately prior   to  1st  November  1956  and  how  they  should   be integrated in the Engineering Service of the State of Andhra Pradesh.   Pending the determination of this  question,  the Government  of Andhra Pradesh by an order dated 23rd  March, 1959  promoted  the  Sub-Engineers  to  act  temporarily  as Assistant Engineers’ Thereafter the question was  considered by   the  Advisory  Committee  and  on  the  basis  of   the recommendations  made  by the Advisory Committee,  an  order dated  22nd December, 1960 was issued by the  Government  of Andhra Pradesh laying down certain principles to be followed in regard to absorption and integration of the 458 Sub-Engineers.  These principles were that the Sub-Engineers working  as  such immediately prior to  1st  November,  1956 should  be promoted as Assistant Engineers with effect  from 31st  October,  1956 afternoon and included in the  list  of Assistant Engineers of both the regions as on 1st  November, 1956 and assigned ranks after the Assistant Engineers in the combined  list,  and out of these Sub-Engineers,  those  who were eligible for promotion as Assistant Engineers under the Hyderabad  Rules should be given the Telengana scale of  pay of  Assistant Engineers and those who were not  so  eligible should  be  given  the  Andhra scale  of  pay  of  Assistant Engineers.   The necessary directions in  implementation  of these principles were given by the Government of Andhra Pra- desh  by an order dated 31st August, 1961.  The  result  was that the Sub-Engineers from the erstwhile State of Hyderabad were  promoted as Assistant Engineers with effect from  31st October, 1956 afternoon and they came to be allotted to  the State  of  Andhra Pradesh as Assistant  Engineers,  the  pay scale  of  graduates  being the Telengana scale  of  pay  of Assistant Engineers and the pay scale of non-graduates being the Andhra scale of pay of Assistant Engineers.  This action of the Government of Andhra Pradesh was indirectly confirmed by  the  Government  of  India  by  its  letter  dated  24th December, 1965 which directed that the following equation of posts  should be adopted for drawing up the final  gradation list :- CATEGORY IV Assistant Engineer  (Hyderabad) Assistant Engineer  (Hyderabad) Sub-Engineer   (Hyderabad) Sub-Engineer   (Andhra) Note I : The Sub-Engineers of Hyderabad should be placed  en bloc below the Assistant Engineers from both the regions. Note If : The Sub-Divisional Officers of Hyderabad should be placed en bloc at the bottom of the category.

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The  Sub-Engineers who were promoted as Assistant  Engineers with retrospective effect from 31st October, 1956  afternoon were thus directed to be placed en bloc below the  Assistant Engineers  from  both the regions in  the  common  gradation list. The  Andhra  Rules, as we have already  seen,  continued  to govern  the  Engineering  Service in  the  State  of  Andhra Pradesh and, therefore, it would seem that promotions in the Engineering Service from and after 1st November, 1956  would have been required to be made in accordance with the  Andhra Rules.    But   the  Government  of   Andhra   Pradesh,   in consultation  with the officer deputed by the Government  of India  to  advise  on problems relating  to  integration  of services,  issued an order dated 7th April, 1960  directing, by  way  of exception, that all employees of  the  erstwhile State of Hyderabad would be governed by the Hyderabad  Rules for  promotion after 1st November, 1956 to posts  one  stage above those held by them immediately prior to 1st  November, 1956.   It  was,  however, made clear  in  this  order  that subsequent  promotions  after one stage promotion  would  be governed  by  the  Andhra Rules or the  Rules  made  by  the Government  of  Andhra  Pradesh.   There  was   considerable controversy before us as to what would be one stage 459 promotion  in  case of Supervisors  from  Telengana  region; whether  it  would  include  promotion  from  the  posts  of Supervisors  to  the  posts  of  Assistant  Engineers.   The petitioners/appellants  contended  that the  posts  of  Sub- Engineers  having  been equated to the  posts  of  Assistant Engineers,  promotion from the posts of Supervisors  to  the posts  of  Assistant  Engineers  was  one  stage   promotion governed  by  the Hyderabad Rules, while, according  to  the respondents, it was not one stage promotion and in any event it was governed by the Andhra Rules and not by the Hyderabad Rules.   We  shall presently examine  this  controversy  but before  we do so we may complete the narration of facts  re- levant  to this issue.  The next event was that  the  Andhra Pradesh State and Subordinate Service Rules, 1962 were  made by  the  Governor of Andhra Pradesh by an  order  dated  7th March,  1962.  Clause (h) (i) was introduced in Rule  42  of these  Rules  by  an order dated 21st July,  1965  and  that clause was in the following terms :               "Nothing  in  these rules or  in  the  Special               Rules  shall disqualify or shall be deemed  to               have  ever  disqualified an  employee  of  the               erstwhile  Government  of  Hyderabad  who  was               allotted to the State of Andhra Pradesh  under               section 115 of the States Reorganisation  Act,               1956 for promotion or recruitment by transfer,               on or after the 1st November, 1956, to a  post               one stage above that held by him prior to  the               said date; if in the opinion of the appointing               authority   such   person  would   have   been               qualified for promotion or for appointment any               such  post  under  the  Hyderabad  Cadre   and               Recruitment  Rules  applicable  thereto,   had               recruitment to such post been regulated by the               last mentioned Rules." We  shall  have  occasion to refer to this  clause  in  some detail  when we examine the arguments advanced on behalf  of the parties. Now  under  the Hyderabad  Rules,  non-graduate  Supervisors including the petitioners/appellants who merely possessed US or  OCE  certificates of Osmania  Engineering  College  were entitled to be considered for promotion to fifty per cent of

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the   posts   of  Sub-Engineers  and,   according   to   the petitioners/appellants,  the  posts of  Sub-Engineers  being equated with those of Assistant Engineers from 1st November, 1956, their right to be considered for promotion extended to fifty per cent of the posts of Assistant Engineers.  But the Government  of Andhra Pradesh followed the Andhra  Rules  in promotion  from  the  posts  of  Supervisors  to  those   of Assistant  Engineers from and after 1st November’  1956  and according to the Andhra Rules, only 33 1/3rd. percent of the posts of Assistant Engineers were available for promotion to non-graduate  Supervisors.  The ratio of one to one  in  the matter  of promotion between graduate Supervisors  and  non- graduate Supervisors, which prevailed in the erstwhile State of  Hyderabad,  was  thus altered to two  to  one  when  the Supervisors from the erstwhile State of Hyderabad came to be allotted   to   the   State   of   Andhra   Pradesh.     The petitioners/appellants  did not have any  serious  grievance about  this alteration in the ratio because  otherwise  they were treated on a par with non-graduate Supervisors from the Andhra region, US or OCE certificate of Osmania  Engineering College  held by them being regarded as equivalent to US  or LCE diploma of the College of Engineering, Guindy and LCE 460 or  LME diploma of the State Board of  Technical  Education, Andhra or Andhra Pradesh.  But this state of affairs did not continue for long, because the Government of Andhra  Pradesh by  an  order  dated  3rd October,  1960  decided  that  OCE certificate-and  that  would also apply  to  US  certificate because OCE course was the same as the earlier US  course-of the Osmania Engineering College be recognised as  equivalent to OCE certificate, which was the same as LS certificate, of the College of Engineering, Guindy.  This decision evoked  a storm  of protest from the non-graduate Supervisors  of  the erstwhile  State  of Hyderabad because the  effect  of  this decision  was that, if they held US or OCE  certificates  of the  Osmania Engineering College, which most of.  them  did, they would have to put in twenty years’ service as  Supervi- sors  for being eligible for promotion, whereas  Supervisors from  Andhra region, most of whom possessed LCE, LME or  LEE diploma  would qualify for promotion on completion  of  five years’ service--.which was later on increased to ten  years’ service-if directly recruited and fifteen years’ service, if promoted  from  the  rank of  Overseers.   The  ion-graduate Supervisors  from  the  erstwhile State  of  Hyderabad  made representations to the Government of Andhra Pradesh as  well as  the  Government of India and contended that  the  parity which prevailed till then between US or OCE certificates  of the  Osmania Engineering College, on the one hand, and  LCE, LME  or  LEE  diplomas on the other, should not  be  set  at naught.    The  Government  of  Andhra   Pradesh   thereupon constituted  a  Special Committee consisting  of  the  Chief Engineer  (General),  Principal of the  Osmania  Engineering College,  Director  of Technical  Education  and  Additional Secretary  to  the  Government Public  Works  Department  to consider these representations and the Special Committee  at its  meeting held on 21st April, 1961 came to  the  decision that  US  and OCE certificates of  the  Osmania  Engineering College  were not equivalent to LCE or LME or LEE  diplomas, The  question  was  then  referred to  the  State  Board  of Technical   Education,  which  was  a  high   powered   body comprising  of administrators, educationists  and  technical experts,  such  as  Secretaries to  the  Government  in  the Education  and  other Departments, the  Director  of  Public Instruction, the Secretary of the Regional Committee of  the All  India Committee for Technical Education, retired  Chief

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Engineers as also Chief Engineers in office, and  principals of  Engineering Colleges in the State.  The State  Board  of Technical Education examined the question thoroughly and  in great  detail  and  at its meeting held on  1st  June,  1962 agreed with the view expressed by the Special Committee that US  or OCE certificates of the Osmania  Engineering  College could  not be equated with LCE or LME or LEE diplomas.   The Government of Andhra Pradesh then reconsidered the  question in  the  light  of  the opinion  expressed  by  the  Special Committee  and  the State Board of Technical  Education  and taking  the  view that the contention  of  the  non-graduate Supervisors  from the erstwhile State of Hyderabad  was  not tenable,  the State of Andhra Pradesh passed an order  dated 14th February, 1963 which was in the following terms               "(i)  In modification of the orders issued  in               G.O.  Ms. No. 2400 P.W.D. dated 3-10-1960  the               Government  recognise the qualification of  US               and O.C.E., courses of               461               Osmania  University  also in addition  to  the               qualifications   already  prescribed  in   the               Andhra Rules and adopted in Andhra Pradesh for               purpose   of  recruitment  to  the  posts   of               Overseers.               (ii)  The   contention   of   the    Hyderabad               Engineer’s  Association to recognise U.S.  and               O.C.E. qualifications as equivalent to L.C.E.,               L.M.E.  and  L.E.E. Diplomas  of  the  Osmania               University  or  L.C.E. Diploma  of  the  State               Board of Technical Education is not tenable as               the former qualifications are definitely lower               than  the latter diploma mentioned  above  and               accordingly   direct  that  they   cannot   be               accepted as equivalent to one another." The  depressing effect brought about by the order dated  3rd October 1960 on the promotion of Supervisors holding US  and OCE  certificates of the Osmania Engineering College to  the posts  of Assistant Engineers was thus confirmed  under  the order dated 14th February, 1963.  This led to the filing  of Writ Petitions Nos. 853 of 1962 and 735 of 1963 in the  High Court  of  Andhra Pradesh challenging the  validity  of  the orders dated 3rd October, 1960 and 14th February, 1963,  but the High Court dismissed these writ petitions as  premature, suggesting  that the question of equivalence of US  and  OCE certificates  of  the  Osmania Engineering  College  may  be referred to the Government of India.  The Government Pleader appearing on behalf of the State agreed to this  suggestion, though according to the State this question did not strictly fall  within  the  terms  of  section  115  of  the   States Reorganisation  Act, 1956.  The Additional Secretary to  the Government of Andhra Pradesh accordingly addressed a  letter dated  9th January, 1965 to the Secretary to the  Government of  India, Ministry of Home Affairs explaining  the  reasons why  the  Government of Andhra Pradesh had  decided  not  to treat  US  and OCE certificates of the  Osmania  Engineering College as equivalent to LCE, or LME or LEE diplomas, but to regard them as equivalent only to US or OCE certificates  of the  College  of  Engineering, Guindy.   The  Government  of India,  by  its letter dated 17th March,  1966,  upheld  the stand taken by the Government of Andhra Pradesh and rejected the plea of the non-graduate Supervisors from the  erstwhile State-  of Hyderabad as untenable.  There was again a  batch of  writ petitions, being Writ Petition No. 645 of 1967  and other  allied  writ petitions, in the High Court  of  Andhra Pradesh challenging the decision of the Government of Andhra

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Pradesh  as confirmed by the Government of the of  India  in regard  to  equivalence of US and OCE  certificates  Osmania Engineering  College.  These writ petitions were heard by  a Division Bench consisting of Jaganmohan Reddy, C.J., (as  he then  was)  and Kondaiah, J., and by a judgment  dated  23rd February, 1968 the Division Bench held inter alia that there was  nothing to show that the decision of the Government  of Andhra  Pradesh--confirmed  by the Government  of  India  to treat  US  and OCE certificates of the  Osmania  Engineering College  as  inferior  to LCE, LME or LEE  diplomas  and  to regard them as equivalent only to LS or OCE certificates  of the  College  of  Engineering,  Guindy  was  irrational   or perverse,  and  in  any  event, it  was  not  shown  by  the petitioners that US and OCE certificates 462 of  the Osmania Engineering College were equivalent to  LCE, LME  or  LEE  diplomas and accordingly  dismissed  the  writ petitions.   The  petitioners in these  writ  petitions,  on rejection  of their applications for leave to appeal by  the High Court, preferred applications for special leave,  being Special Leave Petitions Nos. 749, 751, 773 and 729 of  1968, but  these applications for special leave were  rejected  by this Court by order made on 27th February, 1969. Meanwhile,  on 22nd February, 1967, the Andhra  Pradesh  En- gineering  Service Rules, 1966 (hereinafter referred  to  as Andhra  Pradesh Rules) were made by the Governor  of  Andhra Pradesh in exercise of   the  powers  conferred  under   the Proviso to article 309.  The Andhra Pradesh Rules superseded the Hyderabad Rules as also the portion of the Andhra  Rules consisting  of the Madras Engineering Service Rules.   There was a substantial change made by the Andhra Pradesh Rules in the mode of recruitment to the posts of Assistant Engineers; Clause  2(c) (1) of the Andhra Pradesh Rules  provided  that 37-1/2% of the vacancies in the posts of Assistant Engineers shall  be filled by direct recruitment while clause (2)  (c) directed  that  the  remaining 62-1/2%  vacancies  shall  be filled in the following manner               Out of every 3 vacancies successively  arising               in the posts of Assistant Engineers, so far as               qualified   and   suitable   candidates    are               available,  the first two shall be  filled  or               reserved  to  be  filled  by  recruitment   by               transfer  from  among  the  Junior   Engineers               specified  under Group ’A’, in  the  following               table and the third vacancy shall be filled or               reserved  to  be  filled  by  recruitment   by               transfer  from  among  those  specified  under               Group ’B’ thereof.                                 GROUP ’A’               Junior   Engineers  of  the   Andhra   Pradesh               Engineering Subordinate Service.                                 GROUP ’B’               Supervisors,  draughtsmen  Special  Grade  and               draughtsmen   L.  Grade  of  the  A.P.   Engg.               Subordinate Service.               Provided that out of every three vacancies  of               Assistant   Engineers   to   be   filled    by               recruitment by transfer from among Supervisors               or  Draughtsmen,  so  far  as  qualified   and               suitable  candidates are available, the  first               two shall be filled by recruitment by transfer               from  among  the Suprs.  or  Draughtsmen  with               L.C.E.or  L.E.E.  diploma  or  any  equivalent               qualification and the third shall be filled by               recruitment   by  transfer  from   among   the

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             Supervisors   or   Draughtsmen   with    lower               Subordinate   Diploma   of  the   College   of               Engineering,  Guindy or the Upper  Subordinate               Diploma of the College of Engineering, Hydera-               bad, or any equivalent qualification. 463 The  appointments under which Sub-Rule shall be made in  the order  of  rotation specified below in every  circle  of  18 vacancies 1.   Junior Engineer.        10.   Junior Engineer. 2.   Junior Engineer.        11.   Junior Engineer. 3.   Supervisor-Direct recruit. 12. Supr. direct recruit. 4.   Junior Engineer.            13.    Junior Engineer. 5.   Junior Engineer.             14.   Junior Engineer. 6.   Overseer-promotee Supr.       15.  Draughtsmen    first grade. special with LCE qualification 7.   Junior Engineer.              16.  Junior Engineer. 8.  Junior Engineer.               17. Junior Engineer. 9.   Overseer-promotee Supr. with L.S. 18.  Draughtsmen with                                       L.S. Guindy or Diploma   of   the College of Engg.,  U. S of Osmania Guindy,   or   Upper Subordinate           University. Diploma   of   the College of Engi- neering, Hyderabad. This  clause was substituted by a new clause 2(c)  (2)by  an amendment made in the Andhra Pradesh Rules by a notification dated  12th  January,  1968  and  by  the  new  clause  thus substituted   the  ratio  of  promotion   between   graduate Supervisors  and  non-graduate Supervisors was  altered  and instead  of  two  out of three  vacancies  being  filled  by graduate Supervisors, three out of four vacancies were to be filled  by  graduate Supervisors, with the result  that  the cyclic  order  of  rotation  now  consisted  of  twenty-four vacancies  instead  of  eighteen.  The net  effect  of  this amendment was that instead of one out of- eighteen. only one out of twenty-four vacancies became available for  promotion to  Supervisors from the erstwhile Hyderabad holding  US  or OCE certificates of the Osmania Engineering College and that too, when their turn arrived in the cyclic order. The  appellants  thereupon preferred writ petitions  in  the High Court of Andhra Pradesh challenging the validity of the orders  dated 3rd October, 1960 and 14th February,  1963  as also  of  the  Andhra Pradesh Rules  on  various  legal  and constitutional grounds.  Having regard to the importance  of the question involved these writ petitions were referred  to a  Full Bench and by a judgment dated 21st July,  1972,  the Full  Bench rejected the contentions of the  appellants  and dismissed  the  writ petitions.  There were also  two  other cases  before the Full Bench, namely, Writ Petition No.  470 of 1970 and Writ Appeal No. 626 of 1970, and they were  also disposed  of  in  the same manner by the  Full  Bench  by  a separate judgment dated 29th January, 1972.  The appellants, after obtaining certificates from the High Court,  preferred Civil  Appeals  Nos.  601-605 and 954-955 of  1972  in  this Court.  The petitioners also filed Writ Petition No. 385  of 1969   directly  in  this  Court  under  Art..  32  of   the Constitution claiming substantially the same reliefs as were sought in the writ petitions in the High Court. 464 The  petitioners/appellants urged the following  contentions in support of the writ petition and appeals:               A.    The decision of the Government of Andhra               Pradesh  contained  in the  orders  dated  3rd               October,   1960  and  14th   February,   1963-               confirmed  by the Government of India  by  its

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             letter dated 17th March, 1966-treating US  and               OCE  certificates of the  Osmania  Engineering               College as inferior to US and LCE diplomas  of               the  College of Engineering, Guindy  and  LCE,               LME  or LEE diplomas of any  other  recognised               institution  and equating them with LS or  OCE               certificates  of the College  of  Engineering,               Guindy was erroneous and should be set aside.               B.    The  non-graduate Supervisors  from  the               erstwhile  Hyderabad  State  were,  under  the               condition   of  service  applicable  to   them               immediately  prior  to  1st  November,   1956,               entitled   to  have  fifty  percent   of   the               vacancies in the posts of Assistant  Engineers               available  to  them for  promotion.   But  the               Andhra  Rules,  which  were  applied  by   the               Government  of Andhra Pradesh from  and  after               1st  November,  1956, made available  to  non-               graduate  Supervisors  only one third  of  the               vacancies in the posts of Assistant Engineers.               To  make  things  worse,  the  Andhra  Pradesh               Rules,  as they stood in their unmended  form,               made only one out of eighteen vacancies in the               posts  of  Assistant Engineers  available  for               promotion to the non-graduate Supervisors from               the  erstwhile Hyderabad State holding  US  or               OCE  certificates of the  Osmania  Engineering               College and, under the amended Andhra  Pradesh               Rules,  only one out of twenty four  vacancies               in  the posts of Assistant Engineers was  made               available  to them for promotion.  The  Andhra               Rules  and Andhra Pradesh Rules, thus,  varied               to their disadvantage the condition of service               applicable  to them immediately prior  to  1st               November,  1956  and since  these  Rules  were               applied  and/ or enacted without the  previous               approval of the Central Government, they  were               ineffectual  and void to the extent  to  which               they  made  such  variations,  by  reason   of               contravention of the mandatory requirement  of               the proviso to section 115, sub-section (7).               C.    The   promotion   from  the   posts   of               Supervisors   to   the  posts   of   Assistant               Engineers  from and after 1st  November,  1956               was  one  stage promotion, and  therefore,  by               reason  of the order dated 7th April, 1960  as               also  under  rule  42 (h) (i)  of  the  Andhra               Pradesh  State and Subordinate Service  Rules,               1962,  it was governed by the Hyderabad  Rules               upto  22nd February, 1967 when  the  Hyderabad               Rules  were superseded by the  Andhra  Pradesh               Rules.  The promotions made by the  Government               of  Andhra Pradesh to the posts  of  Assistant               Engineers  from and after 1st  November,  1956               were,  however,  on the basis  of  the  Andhra               Rules, which provided a more               465               unfavorable   ratio  of  promotion  for   non-               graduate Supervisors than the Hyderabad Rules.               The  petitioners/ appellants were,  therefore,               entitled  to claim that promotions  made  from               and   after  1st  November,  1956  upto   22nd               February, 1967 should be reviewed on the basis               that   the   Hyderabad  Rules   governed   the               promotion of non-graduate Supervisors from the

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             erstwhile Hyderabad State.               D.    The  Andhra Pradesh Rules in so  far  as               they discriminate amongst different categories               of  non-graduate  Supervisors by  reserving  a               vacancy  for  each  category  of  non-graduate               Supervisors  in the cyclic order  of  rotation               for  the purpose of promotion in the posts  of               Assistant  Engineers contravene  the  equality               clause contained in article 14 and are to that               extent void. We may now state the facts relating to Writ Petition No. 218 of  1970.   The petitioners in this writ petition  hold  LCE diploma  and  some  of  them  were  directly  recruited   as Supervisors  in the State of Andhra prior to  1st  November, 1956  and the others were directly recruited as  Supervisors in  the  State of Andhra Pradesh subsequent  to  that  date. Since the Andhra Pradesh Rules adversely affected the  peti- tioners   and   other   directly   recruited    non-graduate Supervisors, the petitioners filed the present writ petition in this Court under article 32 of’ the Constitution  praying that the Andhra Pradesh Rules be quashed and set aside in so far as they affect the petitioners and promotions made  from and  after  1st November, 1956 should be  reviewed  on  the; basis  of  the final common gradation  list  of  Supervisors published under the order dated 23rd November, 1967  without any  discrimination  on  the  ground  of  qualifications  by holding  that the Andhra Pradesh Rule,-, altering the  ratio one   to  one  between  graduates  and   non-graduates   and prescribing  different  qualifying  period  of  service  for directly   recruited  graduate  Supervisors   and   directly recruited non-graduate Supervisors for promotion to the post of Assistant Engineers are unconstitutional and void. There was one contention urged on behalf of the  petitioners in support of the writ petition and it was as follows :               E.    The  Andhra Pradesh Rules in so  far  as               they discriminate between graduate Supervisors               and   non-graduate   Supervisors   by   fixing               initially  the ratio of three to  one  between               graduate    Supervisors    and    non-graduate               Supervisors  for the purpose of  promotion  to               the posts of Assistant Engineers are violative               of article 14 and hence void.               We may now proceed to examine the  contentions               urged on behalf of the  petitioners/appellants               in these writ petitions and appeals.               Re.  A This  contention  has  been adequately  dealt  with  in  the judgment  given by the division Bench of the Andhra  Pradesh High Court on 23rd 466 February,  1960 in Writ Petition No.. 645 of 1967 and  other allied petitions and the judgment of the Full Bench impugned in  these appeals.  We are substantially in  agreement  with the  reasons which have weighed with the Division Bench  and the  Full  Bench in rejecting this contention.  It  must  be noted  that  the  question  in  regard  to  equivalence   of educational qualifications is a technical question based  on proper  assessment and evaluation of the  relevant  academic standard, and ,practical attainments of such  qualifications and  where  the decision of the Government is based  on  the recommendation  of  an  expert  body  which  possesses   the requisite  knowledge,  skill and  expertise  for  adequately discharging  such  a  function,  the  Court,  uninformed  of relevant   data  and  unaided  by  the  technical   insights necessary for the purpose of determining equivalence,  would

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not  lightly disturb the decision of the Government.  It  is only  where  the decision of the Government is shown  to  be based on extraneous or irrelevant considerations or actuated by mala fides or irrational and perverse or manifestly wrong that  the  Court would reach out its lethal arm  and  strike down  the decision of the Government.  Here in  the  present case it cannot be said that the view taken by the Government of  Andhra  Pradesh  that US and  OCE  certificates  of  the Osmania Engineering College were not equivalent to US or OCE diploma of the College of Engineering, Guindy or LCE, LME or LEE  diploma  of any other recognised  institution  suffered from  any  of these infirmities.  It was based  on  the  re- commendation  of an expert high powered body like the  State Board  of  Technical Education consisting  of  distinguished administrators, educationists and technical experts  against whom   nothing   could   be  alleged  on   behalf   of   the petitioners/appellants.    The  State  Board  of   Technical Education  included  inter  alia  Principals  of   different engineering  ,colleges  in the State, the Secretary  of  the Regional  Committee of the All India Committee on  Technical Education,  retired Chief Engineers as also Chief  Engineers in  office  who would be expected to be  familiar  with  the academic  standards and practical content of  the  different qualifications  and the decision taken by the Government  of Andhra  ’Pradesh on the basis of the recommendation  of  the State Board of Technical Education could not be regarded  as unreasonable  or perverse ,or manifestly wrong nor could  it be said to be mala fide or based on extraneous or irrelevant considerations.   Indeed, the Government of  Andhra  Pradesh could not do better than relay on the recommendation of  the State Board of Technical Education.  The Full Bench as  well as the Division Bench of the Andhra Pradesh High Court  have in fact shown in their respective judgments, on a comparison of the duration and content of the respective courses,  that US and OCE certificates of the Osmania Engineering  College, were,  both from the point of view of academic  learning  as also  from  the  point  of  view  of  practical  experience, inferior to US or LCE diploma of the College of Engineering, Guindy  or LCE, LME or LEE diploma of any  other  recognised institution.   It may also be pointed out that even  in  the erstwhile State of Hyderabad itself, US and OCE certificates of the Osmania Engineering College were not treated on a par with LCE, LME or LEE diploma.  Firstly, an Overseer  holding US or OCE certificate of the Osmania Engineering College was required to put in at least six years service                             467 before  he  could be eligible for  promotion  as  Supervisor while a Sub-Overseer holding LCE or LME diploma did not have to put in any minimum qualifying service for the purpose  of promotion as Supervisor.  Secondly, US or OCE certificate of the  Osmania Engineering College was regarded as  sufficient qualification  only  for  recruitment to the  post  of  Sub- Overseer, while LCE or LME diploma qualified for recruitment not only to the post of Sub-Overseer but also to the post of Supervisor.  It is, therefore, not possible to overturn  the decision  of  the  Government  of  Andhra  Pradesh   denying equivalence  of  US  and, OCE certificates  of  the  Osmania Engineering  College with LCE, LME or LEE diplomas.  It  may be  noted  that  the Central Government  also  affirmed  the decision  of the Government of Andhra Pradesh by its  letter dated  17th  March, 1966.  Even if it be  assumed  that  the Central Government had the exclusive power under the  States Reorganisation  Act,  1956  to bring  about  integration  of services  in the reorganised State of Andhra  Pradesh,  this decision of the Central Government, contained in the  letter

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dated   17th  March,  1966  is  sufficient  to   meet.   the requirement  of  the statute and it must be upheld  for  the same  reasons  as the decision of the Government  of  Andhra Pradesh.   There  was a further ground  of  attack  levelled against  the  decision  of the  Central  Government,  albeit faintheartedly,  and  that  was that  the  decision  of  the Central Government was arrived at solely on the basis of the communication  dated  9th  January, 1965  addressed  by  the Additional Secretary to the Government of Andhra Pradesh  to the  Secretary to the Government of India, Ministry of  Home Affairs  without giving any opportunity to the  non-graduate Supervisors  from  the  erstwhile  Hyderabad  State  to  put forward their case.  This charge is plainly unsustainable as it  is evident from paragraph 9 of the affidavit dated  27th July,  1970  filed by K. P. Singh, Under  Secretary  to  the Government  of India, Ministry of Home Affairs in  reply  to Writ Petition No. 85 of 1969, and it can hardly be disputed, that   the   representations  made,  by   the   non-graduate Supervisors  from the erstwhile Hyderabad State against  the decision  of the Government of Andhra Pradesh  contained  in the  Order  dated 3rd October, 1960 were  forwarded  to  the Central Government and it was after giving due consideration to these representations on the basis of the recommendations of  the Advisory Board which consisted of experts, that  the Central  Government affirmed the decision of the  Government of Andhra Pradesh by its letter dated 17th March, 1966.  The present  contention  of  the  petitioners/appellants.  must, therefore, be rejected. Re.  B: This contention rests on the applicability of the proviso to section,  115, sub-section (7) of the States  Reorganisation Act, 1956.  Subsection 115 regards as follows               "Nothing  in this section shall be  deemed  to               affect  after the appointed day the  operation               of the provisions of Chapter 1 of Part XIV  of               the Constitution in relation to  determination               of  the  conditions  of  service  of   persons               serving in connection with the affairs of  the               Union or any State."               468               The  effect of this sub-section is inter  alia               to  preserve the power of the, State  to  make               rules  under article 309 of  the  Constitution               laying  down  the  conditions  of  service  of               persons allocated to serve in connection  with               the  affairs  of the State.  But  there  is  a               proviso  which  imposes a  limitation  on  the               exercise  of this power and that proviso  runs               as .under :               "Provided  that  the  conditions  of   service               applicable  immediately before  the  appointed               day  to the case of any person referred to  in               sub-section  (1) or sub-section (2) shall  not               be varied to his disadvantage except with  the               previous approval of the Central Government." The  limitation  imposed by the proviso is  that  the  State cannot vary the conditions of service applicable immediately before  1st November, 1956 to the, disadvantage  of  persons allotted  to  serve in connection with the  affairs  of  the State,  except  with the previous approval  of  the  Central Government.   The  question  which,  therefore,  arises  for consideration is whether the application of the Andhra Rules for promotion from the posts of Supervisors to the posts  of Assistant  Engineers from and after 1st November,  1956  and the enactment of the Andhra Pradesh Rules on 22nd  February,

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1967  together  with their amendment on 12th  January,  1968 varied  to  their disadvantage the condition of  service  in regard  to promotion applicable to non-graduate  Supervisors from  the  erstwhile Hyderabad State  immediately  prior  to first  November,  1956, without the prior  approval  of  the Central  Government.   ’Now  the only  right  in  regard  to promotion  which the condition of service immediately  prior to 1st November, 1956 gave to non-graduate ,Supervisors from the erstwhile Hyderabad State was the right to be considered for  promotion  to  fifty  per cent of  the  posts  of  Sub- Engineers but the argument of the petitioners/appellants was that  the posts of Sub-Engineers were equated with those  of Assistant  Engineers,  and  therefore,  their  right  to  be considered  for  promotion under the  condition  of  service applicable  to them immediately prior to 1st November,  1956 extended  to  fifty  per  cent of  the  posts  of  Assistant Engineers.   This was the premise which formed the basis  of the  contention  of  the  petitioners/appellants  that   the condition of service applicable to non-graduate  Supervisors from the erstwhile Hyderabad State immediately prior to  1st November, 1956 was varied to their disadvantage without  the prior  approval of the Central Government.  We  will  assume with the petitioners/appellants that the premise is correct, but  even  so,  .there are at least two  answers  which  are sufficient    to    repel    this    contention    of    the petitioners/appellants. In the first place, it is not correct to say that there  was any  variation  in  the condition of service  in  regard  to promotion  applicable to; non graduate Supervisors from  the erstwhile  State  of  Hyderabad  immediately  prior  to  1st November,  1956.   It is true that a rule  which  confers  a right  of actual promotion or a right to be  considered  for promotion  is  a rule prescribing a  condition  of  service. This  proposition  can  no longer be  disputed  in  view  of several  pronouncements  of  this Court  on  the  point  and particularly the decision in Mohammed                             469 Bhakar  v.  Krishna  Reddy(1)  where  this  Court,  speaking through  Mitter,  J.,  said : "Any rule  which  affects  the promotion of a person relates to his condition of  service." But when we speak of a right to be considered for promotion, we  must  not confuse it with mere chance  of  promotion-the latter would certainly not be a, condition of service.  This Court point out in State of Mysore v. G. B. Purohit(2)  that though a right to be considered for promotion is a condition of service, mere chances of promotion are not.  A rule which merely  affects chances of promotion cannot be  regarded  as varying  a condition of service.  What happened in State  of Mysore  v.  G.  B. Purohit(2) was  that  the  district  wise seniority  of Sanitary Inspectors was changed to State  wise seniority  and as a result of this change,  the  respondents went down in seniority and became very junior.  This, it was urged,  affected  their  chances  of  promotion  which  were protected under the proviso to section 115, sub-section (7). This  contention was negatived and Wanchoo, J., as  he  then was,  speaking on behalf of this Court observed: It is  said on behalf of the respondents that as their chances of promo- tion  have  been affected their conditions of  service  have been changed to their disadvantage.  We see no force in this argument because chances of promotion are not conditions  of service."  Now, here in the present case, all that  happened as  a result of the application of the Andhra Rules and  the enactment of the Andhra Pradesh Rules was that the number of posts  of  Assistant  Engineers  available  to  non-graduate Supervisors  from the erstwhile Hyderabad State  for  promo-

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tion,  was reduced : originally it was fifty per cent,  then it  became thirty-three and one third per cent, then one  in eighteen and ultimately one in twenty-four.  The right to be considered for promotion was not affected but the chances of promotion  were severely reduced.  This did  not  constitute variation in the condition of service applicable immediately prior to 1st November, 1956 and the proviso to section  115, sub-section (7) was not attracted.  This view is  completely supported  by the decision, of a Constitution Bench of  this Court  in Ramchandra Shankar Deodhar & Ors. v. The State  of Maharashtra.(3) Secondly,  even if the application of the Andhra  Rules  and the enactment of Andhra Pradesh Rules constituted  variation in  the  condition,  of  service  in  regard  to   promotion applicable  immediately prior to 1st November, 1956  to  the disadvantage of non-graduate Supervisors from the  erstwhile Hyderabad State, there was previous approval of the  Central Government to such variation and the requirement of the pro- viso to section 115, sub-section (7) was satisfied.  On 11th May,  1957, the Central, Government addressed  a  memorandum No. S.O. SRDI-IARM-57 to all State Governments.  The Central Government pointed out in paragraph 2 of the memorandum that the  question of protection to be afforded in the matter  of various   service   conditions  to  personal   affected   by reorganization was discussed with the State  representatives at   conferences   held   with  them   and   after   careful consideration  of the views expressed at these  conferences, the Central Government had (1) 1970   Service Law Reporter 768. (2)  C.A. No. 2281 of 1965, dec. on 25th January, 1967. (3)  W.P. No. 299 of 1969, dec. on 12th November, 1973 470 decided  that  the  conditions  of  service  in  regard   to substantive  pay  of  permanent  and  temporary   employees, special  pay,  leave  rules,  pension,  provident  fund  and dearness allowances applicable to personnel affected by  the reorganisation immediately prior to the appointed day should be protected, but so far as conditions of service in  regard to     travelling    allowance,     discipline,     control, classification, appeal, conduct, probation and  departmental promotion  were  concerned, paragraph 3  of  the  memorandum stated that the decision of the Central Government was  that : "it would not be appropriate to provide any protection  in the  matter  of  these  conditions".   Paragraph  6  of  the memorandum then proceeded to state :               "In  respect of such conditions of service  as               have  been  specifically- dealt  with  in  the               preceding  paragraphs, it win be open  to  the               State Governments to take action in accordance               with  the  decisions conveyed therein  and  so               long  as State Governments act  in  conformity               with  those  decisions, they  may  assume  the               Central Government’s approval in terms of  the               proviso  to sub-section (7) of section 115  in               the  States ReOrganisation Act.  In all  other               cases  involving  condition  of  service   not               specifically   covered   in   the    preceding               paragraphs, it will be necessary for the State               Government  in terms of the  above  provisions               before  any action is taken to vary  the  pre-               vious conditions of service of an employee  to               his disadvantage. It  will  be evident from the  memorandum  and  particularly paragraph   6  read  with  paragraph  3  that,  so  far   as departmental promotion is concerned, the Central  Government

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told  the  State  Governments that they might,  if  they  so desire,  change  the  conditions of  service  and  for  this purpose  they  might  assume the previous  approval  of  the Central  Government  as required by the proviso  to  section 115, subsection (7).  The conditions of service specifically dealt  with in paragraph 3 of the memorandum included  those relating to departmental promotion and under paragraph 6  of the  memorandum,  the Central Government gave  its  previous approval to any alteration which the State Governments might wish  to  make  in the conditions  of  service  relating  to departmental  promotion,  because,  in the  opinion  of  the Central Government, they did not need to be protected.   The only   argument  which  could  be  advanced   against   this construction  of the memorandum was that a  general  omnibus approval granted in advance to any variation which might  be made  in the conditions of service relating to  departmental promotion  could  not  be regarded  as  ’previous  approval’ within  the  meaning  of the proviso to  section  115,  sub- section  (7).   But this argument stands  concluded  by  the decision  of  a  Constitution  Bench of  this  Court  in  N. Raghavendra  Rao  v.  Deputy  Commissioner,  South   Kanara, Mangalore.(1) The question which arose for determination  in that  case was whether the Mysore General Services  (Revenue Subordinate  Branch) Recruitment Rules, 1959 were made  with the  previous approval of the Central Government  under  the proviso  to section 115, sub-section (7).   The  respondents relied on the memoran-                             471 dum  as  amounting  to  previous  approval  of  the  Central Government  to the alteration in the conditions  of  service relating  to  promotion made by the Mysore  General  Service (Revenue Subordinate Branch) Recruitment Rules, 1959.   This contention  of the respondents was accepted and it was  held by  this  Court  that the memorandum  amounted  to  previous approval  within the meaning of the proviso to section  115, sub-section  (7)  to the making of Mysore  General  Services (Revenue   Subordinate  Branch)  Recruitment  Rules,   1959. Sikri, J., as he then was,    speaking   on  behalf   of   a unanimous Court said :               "In  our opinion, in the setting in which  the               proviso  to  section  115(7)  is  placed,  the               expression "previous approval" would include a               general approval to the variation-in the  con-               ditions  of  service  within  certain  limits,               indicated by the Union Government.  It has  to               be   remembered   that   Art.   309   of   the               Constitution gives, subject to the  provisions               of  the Constitution, full powers to  a  State               Government  to make rules.  The proviso to  s.               115(7) limits that power, but that  limitation               is  removable  by the  Central  Government  by               giving   its  previous  approval.    In   this               context, we think that it could not have  been               the intention of Parliament that Service Rules               made  by  States would be  scrutinize  in  the               minutes  detail  by  the  Central  Government.               Conditions  vary from State to State  and  the               details   must  be  filled  by,   each   State               according  to  its  requirements.   The  broad               purpose  underlying the proviso to s. 115  (7)               of  the Act was to ensure that the  conditions               of  service should not be changed except  with               the prior approval of the Central  Government.               In  other words, before embarking  on  varying               the   conditions   of   service,   the   State

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             Governments  should obtain the concurrence  of               the  Central  Government.  In  the  memorandum               mentioned   above,  the  Central   Government,               ’after examining various aspects, came to  the               conclusion that it would not be appropriate to               provide  for any protection in the  matter  of               travelling   allowance,  discipline   control,               classification, appeal, conduct, probation and               departmental promotion.  In our opinion,  this               amounted  to  previous  approval  within   the               proviso  to  s. 115(7).  It may  be  mentioned               that by this memorandum the State  Governments               were required to send copies of all new  rules               to the Central Government for its information.               Therefore,  in our opinion, there is no  force               in the first contention of the learned counsel               for the petitioner. and we hold that the rules               were validly made." These observations made on behalf of a Bench of five  Judges of this Court are binding upon us.  Even otherwise they have our  full concurrence.  The view taken by the Court in  this case  is sound and commends itself to us.  In fact  that  is the only view possible on a conjoint reading of paragraphs 3 and  6 of the memorandum.  This decision leaves no room  for doubt   that.  by  issuing  the  memorandum   the   centrals Government gave its previous approval to any variation which might  be  made  in the conditions of  service  relating  to promotion within the 12.-Ll77 Sup CI/75 472 meaning of the proviso to section 115, sub-section (7).   No alteration   in  the  conditions  of  service  relating   to promotion could thereafter be struck down as invalid on  the ground of contravention of the mandatory requirement of  the proviso to section 115, sub-section (7). But  we  find that unfortunately in some of  the  subsequent decisions  of this Court the true ratio of the  decision  in Raghavendra  Rao’s  case(1)  does  not  seem  to  have  been properly appreciated and that decision has been sought to be explained  away  on  a ground which  appears  to  be  rather unconvincing.  The first decision in which a departure  from the  ratio in Raghavendra Rao’s case(2) was attempted to  be made  by  resort  to the process of  distinguishing  it  was Mohammed  Bhakar  v. Krishna Reddy.(2) The validity  or  the Amendment  Rules of 1966 made by the Governor of Mysore  was challenged  in that case on the ground that they varied  the condition  of service in regard to promotion  applicable  to Assistants  immediately,  prior  to 1st  November,  1956  by introducing a requirement that in order to qualify for  pro- motion  to  the cadre of Senior Assistant,  they  must  pass certain departmental examinations and this was done  without obtaining the previous approval of the Central Government as required by the proviso to section 115, sub-section (7).  On the  view taken in Raghavendra Rao’s case,(1)  the  previous approval  of the Central Government was already to be  found in the memorandum dated 11th May, 1957 and there was no need to  obtain the previous approval of the  Central  Government over again for the making of the Amendment Rules, 1966 but a Bench  of  three  judges of  this  Court  distinguished  the decision in Raghavendra Rao’s case,(1) by saying that :               "Before  the  High Court  great  reliance  was               placed  on  the  judgment  of  this  Court  in               Raghavendra  Rao v. Dy.   Commissioner,  South               Kanara(1)  wherein reference was made  to  the               memorandum   of  the  Central  Government   as

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             published by the Government of Mysore on  11th               May 1957 and it was argued that this  amounted               to  previous  approval within the  proviso  to               section  115 (7).  In our opinion, however,  a               general remark like that contained in the said               judgment  was  not  meant  to  lay  down   the               proposition  contended  for  viz.,  that   the               previous  approval of the  Central  Government               was not required for prescribing  departmental               examinations    as   a    qualification    for               promotion.... It appears to us that the letter               of  11th  May  1957 cannot  be  integrated  as               sought by the State of Mysore on the  strength               of   the   observations  of  this   Court   in               Raghavendra Rao’s case (supra)." and  held that since, apart from the memorandum  dated  11th May,  1957, the previous approval of the Central  Government had  not been obtained by the Governor of Mysore before  the making  of the Amendment Rules, 1966, they were  ineffective and  void.  With the greatest respect to the learned  Judges who  decided this case. we do not think they were  right  in explaining  away the decision in Raghavendra Rao’s  ,case(3) in  the  manner  they  did.  We  are  afraid  they  did  not correctly  appreciate  the  true ratio of  the  decision  in Raghavendra Races (1) [1964] 7 S.C.R. 549. (2) [1970] Service Law Reporter 768. 473 case,  (supra) for there can be no doubt that if  they  had, they  could not have, consistently with that decision,  come to-the  conclusion that the Amendment Rules, 1966 were  made by  the Governor of Mysore without the previous approval  of the Central Government. We  may then refer to the decision of a Bench of two  Judges of  this  Court  in G. D. Vaid v. State  of  Punjab.(1)  The question in this case was whether the Punjab Police Clerical Service  (State Service Class III) Rules, 1960, which  dealt with promotion, were made with the previous approval of  the Central  Government  as required by the proviso  to  section 115,  sub-section  (7).   The appellant,  who  asserted  the validity   of  these  Rules,  relied  on  the  decision   in Raghavendra Rao’s case (supra) for showing that these  Rules were  made  with  the  previous  approval  of  the   Central Government and there was no contravention of the proviso  to section 115, subsection (7).  Jaganmohan Reddy, J., speaking on  behalf of the Court, however, negatived the plea of  the appellant in the following words :               "The Appellant says that in Raghavendra Rao v.               Deputy  Commissioner South Kanara  this  Court               had  observed that the previous approval  will               be  presumed.   This construction would  be  a               misreading   of  the  judgment....  The   cir-               cumstances in which such a direction was given               justified  this  Court  from  coming  to   the               conclusion that ’previous approval’ was  given               to the making of the rules.  In any case in  a               subsequent decision of this Court in  Mohammed               Bhakar & Ors. v. Krishna Reddy & Ors.  (supra)               it  was explained that generally  the  remarks               like that contained in Raghavendra Rao’s  case               were  not  meant to lay down  the  proposition               contended   for  namely  that   the   previous               approval  of  the Central Government  was  not               required    for    prescribing    departmental               examinations    as   a    qualification    for

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             promotion.....  There is in our view no  force               in  the  contention  urged  by  the  appellant               before  us that the rules of 1960 made by  the               Punjab  Government  must  be  deemed  to  have               received the previous approval of the  Central               Government.   The proviso to sub-sec.  (7)  of               sec.   115  is  clear  and   categorical   and               therefore   previous  approval  must  not   be               presumed  but  must  be  either  categorically               given  or that approval  becomes  unmistakably               apparent  from the correspondence between  the               State, Government and the Central Government." These  observations  are  plainly in  contradiction  of  the decision in Raghavendra Rao’s case.  It is indeed  difficult to see bow the Rules in question could be said to have  been made without the previous approval of the Central Government when  this Court said in so many terms in Raghavendra  Rao’s case  that  "the Central Government came to  the  conclusion that  it  would  not  be  appropriate  to  provide  for  any protection  in  the matter--of departmental  promotion"  and "this  amounted to previous approval within the  proviso  to section 115, subsection (7)".  Perhaps the Division Bench in this case was driven to (1)  [1972] 1 S.C.R. 896. 474 adopt this rather unconvincing line of reasoning because  it was  faced with the decision in Mohammed Bhakar  v.  Krishna Reddy,.  (supra) and had to find some way of reconciling  it with the decision it) Raghavendra Rao’s case. (supra) The  last decision to which we may refer in this  connection is the decision of a Bench of three Judges of this Court  in State of Haryana v. S. J. Bahadur(1) Hegde, J., speaking  on behalf  of  the  Court, reiterated that  the  scope  of  the Memorandum dated 11th May, 1957 had been considered by  this Court  in  Mohammed Bhakar v. Krishna Reddy (supra)  and  in that  case  it was held by this Court  that  the  memorandum "cannot be considered as permitting the State Governments to alter any conditions of service relating to the promotion of the  affected Government servants".  We have  already  shown bow  this  view taken: in Mohammed Bhakar v.  Krishna  Reddy (supra)  and  followed  in G. D. Vaid  v.  State  of  Punjab (supra)  runs counter to the decision in  Raghavendra  Rao’s case  (supra) and we need riot add anything more to what  we have  already  said in this connection.  We affirm  the  de- cision   in  Raghavendra  Rao’s  case  and  hold  that   the memorandum  dated  11th  May,  1957  constituted   ’previous approval’  of the Central Government to any variation  which might  be  made  in the conditions of  service  relating  to promotion within the meaning of the proviso to section  115, sub-section  (7).   We may point out that  the  decision  in Raghavendra Rao’s case (supra) has been cited with  approval by a Bench of five Judges of this Court as recently as  23rd August, 1972 in N. Subba Rao v. Union of India. (2) It must, therefore, be concluded that in any view of the, matter  the Andhra Rules and the Andhra Pradesh Rules did not contravene the proviso to section 115, subsection (7). Re.  C : That  takes  us  to  the next ground  of  complaint  of  the petitioners/    appellants.    The   contention    of    the petitioners/appellants under this head of complaint was that by  reason  of  the decision of  the  Government  of  Andhra Pradesh  contained in the order dated 7th April,  1960,  the Supervisors from the erstwhile Hyderabad State including the petitioners/appellants were governed by the Hyderabad  Rules in  the  matter of promotion to a post one stage  above  the

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post of Supervisor held by them on the appointed day’, i.e., 1st  November, 1956.  The post of Sub-Engineer  having  been equated  with  the  post of Assistant  Engineer,  urged  the petitioners/appellants, one stage promotion from the post of Supervisor  was  to  the  post  of  Assistant  Engineer  and consequently,   promotion  of  the  Supervisors   from   the erstwhile Hyderabad State to the post of Assistant  Engineer was  governed by the Hyderabad Rules and not by  the  Andhra Rules from and after 1st November, 1956 and promotions  made on  the basis of Andhra Rules must accordingly  be  reviewed and adjusted.  This contention of the petitioners/appellants is, in our opinion, untenable and cannot be accepted. It  can hardly be disputed that under the  Hyderabad  Rules, the post one stage above that of Supervisor was the post  of Sub-Engineer (1) [1973] 1, S.C.R. 249.          (2) A.I.R. 1973 S.C. 69. 475 and it was only from the post of Sub-Engineer that promotion lay  to  the  post  of  Assistant  Engineer.   The  post  of Assistant  Engineer was, therefore, not a post of one  stage promotion  from  the Post of Supervisor.  Now the  cadre  of Sub-Engineers  was  abolished by the  Government  of  Andhra Pradesh  with  effect from 1st November, 1956 and  some  way had,  therefore,  to  be  found  to  absorb  and  assimilate officers holding the post of Sub-Engineer immediately  prior to  1st  November, 1956 in the Engineering  Service  of  the State of Andhra Pradesh.  The,, Government of Andhra Pradesh accordingly  promoted these officers as Assistant  Engineers with effect from 31st October, 1956 afternoon so that on 1st November,  1956 when the reorganisation of the  States  took place,  they  were Assistant Engineers  drawing  either  the Telengana scale of pay or the Andhra scale of pay  according as  they were graduates or non-graduates and they  could  be integrated in the same category as Assistant Engineers  from the Telengana and Andhra regions.  Since, however, they were not really and in fact Assistant Engineers immediately prior to 1st November, 1956 but were merely Sub-Engineers promoted as Assistant Engineers only for the purpose of  integration; they were paced en bloc below the Assistant Engineers of the Telengana  and Andhra regions in seniority.  Vide the  order of  the  Government of Andhra Pradesh dated  22nd  December, 1960  and  the letter of the Central Government  dated  24th December,  1965.   But this does not mean that the  post  of Sub-Engineer was equated with that of Assistant Engineer  in the  State of Andhra Pradesh.  The post of Sub-Engineer  was abolished and there was no question of equating it with  the post  of  Assistant  Engineer.   It was  only  in  order  to integrate  the  existing  incumbents of the  cadre  of  Sub- Engineers  for whom there was no corresponding cadre in  the State  of  Andhra Pradesh that a provision had  to  be  made promoting  them  as Assistant Engineers  with  retrospective effect  from  31st October, 1956 afternoon with  a  view  to assimilating  them in the category of  Assistant  Engineers, though  at the bottom of that category.  It is difficult  to imagine  how in these circumstances any promotion  could  be made  from the post of Supervisor to the post  of  Assistant Engineer  according to the Hyderabad Rules.  The  one  stage promotion  from the post of Supervisor contemplated  by  the Hyderabad  Rules  was  to  the  post  of  Sub-Engineer   and consequently, if the cadre of Sub-Engineer had continued  in the  reorganised  State of Andhra Pradesh, there can  be  no doubt that, according to the decision contained in the order dated 7th April, 1960, the promotion of Supervisors from the erstwhile Hyderabad State to the post of Sub-Engineer  would have been governed by the Hyderabad Rules.  But with a  view

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to  bringing about integration of the  Engineering  Service, the  cadre of Sub-Engineers was abolished by the  Government of Andhra Pradesh, and therefore, so far as- promotion  from the  post of Supervisor was concerned, the  Hyderabad  Rules ceased  to have application.  The Hyderabad Rules could  not govern promotion from the. post of Supervisor to the post of Assistant  Engineer, because no such promotion was  provided or  contemplated  in the Hyderabad Rules.  In fact,  if  the Andhra  Rules were not made applicable to  Supervisors  from the  erstwhile  Hyderabad  State,  all  further  chances  of promotion for such of them as were non-graduates would  have been barred, because under the Hyderabad Rules they could be promoted only to the post of Sub- 476 Engineer  and no higher and the cadre of  Sub-Engineers  was abolished.  The next higher stage of promotion from the post of Supervisor in the reorganised State of Andhra Pradesh was the  post of Assistant Engineer and promotion to  that  post could   be  governed  only  by-  the  Andhra   Rules   which contemplated  such promotion and made express provision  for it.    The  petitioners/appellants  were,   therefore,   not entitled  to  claim  that  Supervisors  from  the  erstwhile Hyderabad  State  should  have been  promoted  as  Assistant Engineers  in  the  reorganised  State  of  Andhra   Pradesh according to the Hyderabad Rules. The  petitioners/appellants then relied on rule 42(h)(i)  of the Andhra Pradesh State and Subordinate Service Rules, 1962 for  invoking the applicability of the Hyderabad  Rules,  in the  matter of promotion to the post of Assistant  Engineer. But  we fail to understand how rule 42(h)(i) can be  of  any assistance  to the petitioners/appellants.  Rule  42(h)  (i) provides  that  nothing in the Andhra Rules  or  the  Andhra Pradesh  Rules shall disqualify or shall be deemed  to  have ever disqualified a Supervisor from the erstwhile  Hyderabad State for promotion on or after 1st November, 1956 to a post one stage above that held by him and prior to the said date, if   in  the  opinion  of  the  appointing  authority   such Supervisor  would have been qualified for promotion to  such post under the Hyderabad Rules.  Here the post of  Assistant Engineer  to which Supervisors from the erstwhile  State  of Hyderabad  claimed to be promoted on or after 1st  November, 1956  was  undoubtedly  one stage above  that  held  by  the Supervisors,  there  being  no  intermediate  post  in   the reorganised   State,  but  it  cannot  be  said   that   the Supervisors  would have been qualified for promotion to  the post  of  Assistant Engineer under the Hyderabad  Rules,  if recruitment  to  the  post of Assistant  Engineer  had  been regulated  by the Hyderabad Rules.  In the first place,  the Hyderabad Rules did not provide for promotion directly  from the  post of Supervisor to the post of  Assistant  Engineer, and  secondly,  under the Hyderabad  Rules,  a  non-graduate Supervisor  would not have been qualified for  promotion  to the  post  of Assistant Engineer.  The contention  based  on Rule 42 (h) (i) must also, therefore, be rejected. Re.  D & E: Now we proceed to consider the challenge based on infraction of  articles  14  and 16 of the  Constitution.   Article  14 ensures  to  every  person equality  before  law  and  equal protection  of the laws and article 16 lays down that  there shall be equality of opportunity for all citizens in matters relating  to employment or appointment to any  office  under the  State.  Article 16 is only an instance or  incident  of the guarantee of equality enshrined in article 14 : it gives effect  to the doctrine of equality in the sphere of  public employment.  The concept of equal opportunity to be found in

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article  16 permeates the whole spectrum of an  individual’s employment   from   appointment   through   promotion    and termination to the payment of gratuity and pension and gives expression to the ideal of equality of opportunity which  is one  of  the great socioeconomic objectives set out  in  the Preamble  of  the Constitution The  constitutional  code  of equality and equal opportunity, however, does not mean  that the same laws must be applicable to all persons.  It 477 does  not  compel  the State to run "all  its  laws  in  the channels of general legislation".  It recognizes that having regard to differences and disparities which exist among  men and  things,  they  cannot  all  be  treated  alike  by  the application   of  the  same  laws’  "To   recognise   marked differences  that exist in fact is living law; to  disregard practical  differences  and  concentrate  on  some  abstract identities   lifeless   logic.(1)"  The   Legislature   must necessarily, if it is to be effective at all in solving  the manifold  problems which continually come before  it,  enact special  legislation  directed  towards  specific  ends  and limited  in its application to special classes of person  or things.   "Indeed,  the greater part or all  legislation  is special,  either in the extent to which it operates, or  the objects sought to be attained by it." We thus arrive at the point at which the demand for equality confronts   the   right  to  classify.   For   it   is   the classification  ’which  determines  the  range  of   persons affected  by  the special burden or benefit of a  law  which does  not apply to all persons.  This brings out a  paradox. The  equal  protection  of  the laws is  a  "pledge  of  the protection  of equal laws." But laws may classify.  And,  as pointed   out   by  Justice  Brewer,  "the  very   idea   of classification  is  that  of  inequality".   The  court  has tackled this paradox over the years and in doing so, it  has neither  abandoned  the demand for equality nor  denied  the legislative  right  to classify.  It has  adopted  a  middle course  of  realistic reconciliation.  It has  resolved  the contradictory  demands  of  legislative  specialization  and constitutional  generality  by  a  doctrine  of   reasonable classification.    This   doctrine   recognizes   that   the legislature may classify ,for the purpose of legislation but requires  that  the classification must be  reasonable.   It should ensure that persons or things similarly situated  are all  similarly treated.  The measure of reasonableness of  a classification  is  the degree of its  success  in  treating similarly those similarly situated. ( 2 ) But  the question is : what does this ambiguous and  crucial phrase ,,similarly situated" mean ? Where are we to look for the  test  of similarity of situation which  determines  the reasonableness of a classification ? The inescapable  answer is  that  we  must look beyond  the  classification  to  the purpose  of  the law.  A reasonable  classification  is  one which includes all persons or things similarly situated with respect  to  the  purpose of the law.  There  should  be  no discrimination  between one person or thing and another,  if as  regards  the  subject-matter of  the  legislation  their position  is  substantially  the same.   This  is  sometimes epigrammatically   described   by  saying  that   what   the constitutional  code  of  equality  and  equal   opportunity requires  is that among equals, the law should be equal  and that like should be treated alike.  But the basic  principle underlying the doctrine is that the legislature should  have the  right  to classify and impose special burdens  upon  or grant special benefits to persons or things grouped together under  the classification, so long as the classification  is

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of persons or things similarly (1)  Morey v.Doud, 354 U. S. 457, 473. (2)  "The  Equal protection of the Laws", 37 California  Law Review, 341. 478 situated with respect to the purpose of the legislation,  so that  all persons or things similarly situated  are  treated alike  by  law.  The test which has been  evolved  for  this purpose  is-and this test has been consistently  applied  by this  Court in all decided cases since the  commencement  of the Constitution-that the classification must be founded  on an  intelligible  differentia  which  distinguishes  certain persons or things that are grouped together from others  and that differentia must have a rational relation to the object sought to be achieved by the legislation. But  we have to be constantly on our guard to see that  this test  which  has  been  evolved as  a  matter  of  practical necessity with a view to reconciling the demand for equality with  the  need  for special  legislation  directed  towards specific  ends  necessitated  by  the  complex  and   varied problems  which  require  solution  at  the  hands  of   the legislature,  does not degenerate into rigid formula  to  be blindly  and mechanically applied whenever the  validity  of any  legislation  is called in  question.   The  fundamental guarantee  is  of  equal  protection of  the  laws  and  the doctrine of classification is only a subsidiary rule evolved by  courts to give a practical content to that guarantee  by accommodating it with the practical needs of the society and it should not be allowed to submerge and drown the  precious guarantee  of  equality’.  The  doctrine  of  classification should  not be carried to a point where instead of  being  a useful   servant,  it  becomes  a  dangerous   master,   for otherwise,  as pointed out by Chandrachud, J., in  State  of Jammu & Kashmir v. Triloki Nath Khosa,(1) "the guarantee  of equality will be submerged in class legislation masquerading as laws meant to govern well-marked classes characterised by different  and  distinct attainments." Overemphasis  on  the doctrine  of  classification  or an  anxious  and  sustained attempt  to  discover  some  basis  for  classification  may gradually  and  imperceptibly  deprive,  the  guarantee   of equality  of  its  spacious  content.   That  process  would inevitably    end   in   substituting   the   doctrine    of classification   for   the  doctrine  of  equality   :   the fundamental  right  to  equality before the  law  and  equal protection  of  the laws may be replaced by  the  overworked methodology  of classification.  Our approach to  the  equal protection clause must, therefore, be guided by the words of caution  uttered  by Krishna Iyer, J., in State of  Jammu  & Kashmir  v.  Triloki Nath Khosa(1)  :  "Mini-classifications based  on  micro-distinctions are false to  our  egalitarian faith    and    only   substantial    and    straightforward classifications  plainly promoting relevant goals  can  have constitutional  validity.   To overdo classification  is  to undo equality." It is in the light of these principles that we must  proceed to examine the constitutional validity of the Andhra Pradesh Rules.   The complaint of the petitioners under the head  of contention  E is that the Andhra Pradesh Rules  make  unjust discrimination  between graduates and non-graduates  in  the matter  of promotion of Supervisors as Assistant  Engineers. Now, whether we look at the unamended or the amended  Andhra Pradesh  Rules,  it is clear that graduate  Supervisors  are given    a   preferential   treatment   over    non-graduate Supervisors, in (1)  [9974] (1) S.C.C. 19.

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479 that  two out of every three vacancies initially, and  after the  amendment,  three out of every four  vacancies  in  the posts  of Assistant Engineers are reserved for promotion  of graduate  Supervisors and only the remaining one vacancy  is left to be filled by promotion of non-graduate  Supervisors. The  question is whether this preferential treatment can  be justified  on the basis of any reasonable classification  or it is arbitrary and irrational.  The law as it stands to-day is  clear that the burden is always on him who  attacks  the constitutionality   of  a  legislation  to  show  that   the classification  made by it is unreasonable and violative  of articles 14 and 16.  Has this burden been discharged by  the petitioners/   appellants  :  have  they  shown   that   the classification  of  Supervisors  into  graduates  and   non- graduates   for  the  purpose  of  promotion  as   Assistant Engineers  is unrelated to the object of the Andhra  Pradesh Rules, or in other words, it is arbitrary and unreasonable ? Now,   there  are  three  decisions  of  this  Court   where educational qualifications have been recognised as forming a valid  basis  for  classification.  In State  of  Mysore  v. Narasing  Rao(1)  this Court held  that  higher  educational qualifications  such as success in S.S.L.C. examination  are relevant considerations for fixation of higher pay scale for tracers  who  have passed the S.S.L.C. examination  and  the classification of two grades of tracers in Mysore State, one for matriculate tracers with higher pay scale and the  outer for non-matriculate tracers with lower pay scale, cannot  be said  to  be violative, of articles 14 or 16.   So  also  in Union  of  India v. Dr. (Mrs.) S. B. Kohli,  (2)  a  Central Health   Service   Rule  requiring  that  a   Professor   in Orthopedics  must have a post graduate degree in  particular speciality was upheld on the ground that the  classification made  on  the basis of such a requirement was  not  "without reference to the objectives sought to be achieved and  there can  be  no  question of discrimination".   A  very  similar question  arose in State of Jammu & Kashmir v. Triloki  Nath Khosa  (supra) where a rule which provided that only  degree holders  in  the  cadre  of  Assistant  Engineers  shall  be entitled  to be considered for promotion to the next  higher cadre  of Executive Engineers and diploma holders shall  not be eligible for such promotion, was challenged as  violative of  the equal opportunity clause.  This Court  repelled  the challenge  holding that "though persons  appointed  directly and  by  promotion were integrated into a  common  class  of Assistant Engineers. they could, for the purposes of  promo- tion  to the cadre of Executive Engineers, be classified  on the  basis  of  educational qualifications"  and  "the  rule providing   that  graduates  shall  be  eligible  for   such promotion  to  the exclusion ’of diploma holders",  was  not obnoxious to the fundamental guarantee of equality and equal opportunity.   But  from these decisions it cannot  be  laid down as an invariable rule that whenever any  classification is made on the basis of variant educational  qualifications, such  classification must be held to be valid.  irrespective of  the  nature  and purpose of the  classification  or  the quality  and  extent of the difference  in  the  educational qualifications.  It must be remembered that "life has (1) [1968] 1 S.C.R. 407. (2) [1973] 3 S.C.C. 592. 480 relations  not  capable always of division  into  inflexible compartments".   The moulds expand and shrink.  The test  of reasonable classification has to be applied in such case  on its  peculiar facts and circumstances.  It may be  perfectly

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legitimate for the administration to say that having  regard to  the nature of the functions and duties attached  to  the post,  for  the purpose of achieving  efficiency  in  public service,  only  degree  holders  in  engineering  shall   be eligible  for  promotion  and  not  diploma  or  certificate holders.  That is what happened in, State of Jammu & Kashmir v.  Triloki  Nath  Khosa  (supra)  and  a  somewhat  similar position also obtained in Union of India v. Dr. (Mrs.) S. B. Kohli.  (supra)  But where graduates and  non-graduates  are both regarded as fit and, therefore, eligible for promotion, it is difficult to see how, consistently with the claim  for equal  opportunity, any differentiation can be made  between them by laying down a quota of promotion for each and giving preferential  treatment to, graduates over non-graduates  in the  matter  of  fixation  of such  quota.   The  result  of fixation  of  quota of promotion for each of the  two  cate- gories of Supervisors would be that when a vacancy arises in the  post  of Assistant Engineer,, which, according  to  the quota  is reserved for graduate Supervisors, a  non-graduate Supervisor cannot be promoted to that vacancy, even if he is senior  to all other graduate Supervisors and more  suitable than  they.  His opportunity for promotion would be  limited only  to vacancies available for  non-graduate  Supervisors. That would clearly amount to denial of equal opportunity  to him.   When  there  is  a  vacancy  earmarked  for  graduate Supervisors, a non-graduate, Supervisor would be entitled to ask  :  "I  am  senior to the  graduate  Supervisor  who  is intended to be promoted.  I am more suitable than he is.  It is no doubt true that I am a non-graduate, but my not  being a graduate has not been branded as a disqualification.  I am regarded   fit   for  promotion  and,  like   the   graduate Supervisor,  I am equally eligible for being  promoted.   My technical equipment supplemented by experience is considered adequate   for  discharging  the  functions   of   Assistant Engineer.   Then why am I being denied the  opportunity  for promotion  and the graduate Supervisor is preferred?"  There can be no satisfactory answer to this question.  It must  be remembered that many of these non-graduate Supervisors might not  have been able to obtain degree in engineering  because they  came  from  poorer  families  and  did  not  have  the financial  resources to pursue degree course in  engineering and  not  because  they lacked the  necessary  capacity  and intelligence.   "Chill penury" might have " repressed  their noble rage".  It is of the essence of equal opportunity  for such  persons  with humble and depressing  backgrounds  that they  should have opportunity, through experience  or  self- study, to level up with their more fortunate colleagues who, by  reason  of favourable circumstances,  could  obtain  the benefits  of-higher education, and if they prove  themselves fit and more suitable than others, why should they be denied an  opportunity  to be promoted in a vacancy on  the  ground that  vacancy  belongs  to  Supervisors  possessing   higher educational qualifications.  As pointed out by Krishna Iyer, 481 J.,  in the State. of Jammu & Kashmir v. Triloki Nath  Khosa (supra) "the soul of Art. 16 is the promotion of the  common mans  capabilities, over-powering environmental  adversities and  opening up full. opportunities to develop  in  official life  without  succumbing to the sophistic argument  of  the elite that talent is the privilege of the few and they  must rule".   To  permit  discrimination  based  on   educational attainments  not  obligated by the nature of the  duties  of the  higher  post  is to stifle, the social  thrust  of  the equality   clause.   A.  rule  of  promotion  which,   while conceding  that non-graduate Supervisors are also fit to  be

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promoted as Assistant Engineers, reserves, a higher quota of vacancies for promotion for graduate Supervisors as  against non-graduate  Supervisors,  would clearly be  calculated  to destroy the guarantee of equal opportunity.  But even so, we do  not think we can be persuaded to strike down the  Andhra Pradesh Rules in so far as they make differentiation between graduate and non-graduate Supervisors.  This differentiation is  not  somethingbrought about for the first  time  by  the Andhra  Pradesh  Rules.   It has always been  there  in  the Engineering Services of the Hyderabad and the Andhra States. The  graduate  Supervisors  have always been  treated  as  a distinct  and separate class from  non-graduate  Supervisors both  under the Hyderabad Rules as well as the Andhra  Rules and  they have never been integrated into one class.   Under the  Hyderabad Rules, the pay scale of graduate  Supervisors was  Rs. 176-300, while that of  non-graduate.   Supervisors was  Rs. 140-300 and similarly, under the Andhra  Rules  the pay scale of’ non-graduate Supervisors was Rs. 100-250,  but graduate  Supervisors were started in this pay scale at  the stage of Rs. 150/- so that their pay-scale was Rs.  150-250. Graduate Supervisors and non-graduate Supervisors were  also treated differently for the purpose of promotion under  both sets of Rules.  In fact,, under the Andhra Rules a different nomenclature  of  Junior  Engineers was  given  to  graduate Supervisors.  The same differentiation into two classes also persisted’ in the reorganised State of Andhra Pradesh.   The pay-scale of JuniorEngineers was always different from  that of   non-graduate  Supervisors  and  for  the   purpose   of promotion,  the  two  categories of  Supervisors  were  kept distinct  and  apart under the Andhra Rules even  after  the appointed  day.   The common gradation list  of  Supervisors finally  approved by the Government of India also  consisted of two parts, one part relating to Junior’ Engineers and the other  part  relating to nongraduate Supervisors.   The  two categories  of  Supervisors were thus never fused  into  one class  and  no question of  unconstitutional  discrimination could  arise by reason of differential treatment  beinggiven to them.  Condition E cannot, therefore, prevail and must be rejected. That takes us to contention D. So far as this contention is- concerned, we do not think we can be called ’upon to  decide it.   It does not form the subject matter of  Writ  Petition No. 385 of 1969.  There is no complaint in this petition  in regard to the classificationof non-graduate Supervisors into different categories and reservation 482 of vacancy for each category in the cyclic order of rotation for promotion to the posts of Assistant Engineers.  When  we turn  to  the  judgment of the Full Bench  impugned  in  the appeals,  we find that there is discussion in that  judgment in  regard to the rotational system of promotion  prescribed under  the  Andhra  Pradesh Rules, but  that  discussion  is mainly  in  the  context  of  an  argument  challenging  the different proportions of vacancies allotted to graduate  and non-graduate  Supervisors.  No specific contention seems  to have  been advanced directly impugning the  distribution  of the  vacancies allotted to non-graduate Supervisors.  It  is true  that  there  is  reference  in  the  judgment  to  the distribution  of  the  non-graduate  Supervisors’  quota  of vacancies   amongst   different  classes   of   non-graduate Supervisors,  but that reference is on account of  the  fact that the respondents relied on this factor as justifying the rotation  system  as between graduate Supervisors  and  non- graduate Supervisors.  It is indeed difficult to see how the Full  Bench  could  have  possibly  examined  the  challenge

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against   distribution   of  vacancies   amongst   different categories  of non-graduate Supervisors in the cyclic  order of  rotation  when such challenge did not arise out  of  any averments in the writ petitions, and moreover, all  directly recruited non-graduate Supervisors and promotee non-graduate Supervisors  holding LCE, LME or LEE diplomas, who would  be affected  by an adverse decision, were not before  the  High Court.  We are of the view that in the absence of  necessary averments ’in regard to this challenge in the writ petitions before  the High Court as also in Writ Petition No.  385  of 1969  before  this Court and particularly  the  non-graduate Supervisors,  who would be affected by an adverse  decision, not  being  before the High Court or this Court  to  contest such  challenge, it was not possible for the High Court  and it is equally not possible, for this Court to entertain this challenge   and  examine  its  validity  on   merits.    We, therefore, refuse to consider contention D. We  accordingly  dismiss  the writ  petitions  and  appeals. There will, however, be no order as to costs all throughout. V. M. K.               Petitions and appeals dismissed. 483