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CASE NO.: Appeal (civil)  1712-1713 of 2002

PETITIONER: P.Sudhakar Rao & Ors

RESPONDENT: U.Govinda Rao & Ors

DATE OF JUDGMENT: 02/05/2007

BENCH: A.K. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

1.      These appeals are  directed against  the Full Bench decision of  the High Court of Andhra Pradesh in Writ Petition Nos.5922 & 6360  of 1999  by which the Full Bench has set aside the order of the  Andhra Pradesh Administrative Tribunal at Hyderabad. Hence, the  present appeals. 2.      Shorn of detailed facts, principal question arises for our   consideration is  the validity of the rule by which retrospective  seniority benefit was given  to the Junior Engineers by G.O.Ms. No.54  Irrigation (Service IV-2) dated 15.2.1983.  Relevant amendment  which is the subject matter of present controversy reads as under :

               " In exercise of the powers conferred by the  proviso to Article 309 of the Constitution of India,  the  Governor of Andhra Pradesh hereby makes the  following amendments to the Special Rules for the  Andhra Pradesh Engineering Service, issued in  G.O.Ms. No.285 PWD, dated 22.2.1967 and as  subsequently amended from time to time. 2.      The amendments hereby  made shall be deemed  to have come into force from the 28th February, 1972.

                       AMENDMENT         In the said Special Rules : (1)     In Rule 2, the entry in column 2 of the Table  against category-6 Junior Engineers, shall be lettered  as Clause (a) and after it is so lettered the following  entry shall be added namely:         "(b)    Recruitment by transfer of Supervisors of  the Andhra Pradesh Engineering Subordinate  Service who have acquired the B.E. or A.M.I.E.  (India) qualification and who are approved  probationers in that category. NOTE :  The Provisions  of General Rule 6 shall not  appointment either by the direct recruitment or by  transfer to the category of Junior Engineers". 2.      In column (2) and of the Table  under rule 4  against the category of Junior Engineers, the  following entries shall be added at the end namely: Recruitment by transfer Must possess B.E.  or A.M.I.E, (India) qualification  in Civil or                                            Mechanical Engineering.

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3.      After  Note (2) below the Table under Rule 4 the  following shall be inserted namely : Note (3)  A Supervisor who is appointed by transfer  as Junior Engineer on or after 28.2.1972 shall be  entitled  to count 1/3rd of the Service rendered as  Supervisor before appointment as Junior Engineer,  subject to a maximum of 4 years weightage for the  purpose of computing the service as Junior Engineer,  which will render eligible for consideration for  promotion as Asst. Engineer, and subject to the  following conditions:                 (i)     The seniority of a Supervisor, who is  appointed as Junior Engineer shall be fixed in the  category of Junior Engineers with reference to the  notional date arrived at after giving weightage of  service aforesaid;                 (ii)    A Supervisor who is appointed as  Junior Engineer shall put in a minimum service of  one year on duty as Junior Engineer, after such  appointment, and a total service of five years as  Junior Engineer, inclusive of the period given as  weightage to become eligible for promotion as Asst.  Engineer;           (iii)         No Supervisor shall ordinarily be  eligible for appointment as Junior Engineer, unless  he has put in a minimum service of three years as  supervisor;                 (iv)    A Supervisor with less than three  years of service, who is appointed as Junior  Engineer for any special reasons shall not be entitled  to any weightage of his past service as Supervisor".

3.      This litigation has a very long history and we will refer to  relevant part of the history in our judgment wherever it is necessary  but the core issue before us is the validity of this Rule.  This rule was  challenged by the direct recruit Junior Engineers  coming from  various parts of the State before the Andhra Pradesh Administrative  Tribunal, Hyderabad by filing various original applications. A  preliminary objection was raised that  the original applications were  not maintainable as the Tribunal has no jurisdiction to examine this  controversy as the rule had already been up-held by this Court in  Devi Prasad & Ors. v. Government of Andhra Pradesh & Ors.   etc. [ 1980 Supp. SCC 206] and  State of Andhra Pradesh & Anr.  v. K.S.Muralidhar & Ors. etc. [(1992) 2 SCC 241].  As against this, it  was contended that in both these cases amendment to the rule was  not in issue and what was in issue was only  the executive  instructions issued prior to the amendment.  It was submitted that the  matters were not decided on merits.  4.      The question of   seniority and promotion in the Engineering  Department of the State of Andhra Pradesh has been dragging since  last 40 years.  It was also pointed out that at the time of formation of  the State in the year 1956, there was a single P.W.D. Engineering  Department. The Madras Engineering Service Rules issued in  G.O.Ms. No.2690 Public (Services)  dated 28.9.1953 applied to the  State  Services which included  the category of the post of Assistant  Engineer ( now called as Deputy Executive Engineer) as the initial  category. The appointment to the other higher categories in the State  Service like Executive Engineer, Superintending Engineer and Chief  Engineer was being made by promotion from the  immediate lower  category. The Madras Engineering Subordinate Service Rules framed  in G.O.Ms. No.2732, Public (Services)  dated 30.9.1953 governed the  conditions of service of the subordinate Services which included the  posts of Junior Engineer, Supervisor, Draughtsman Grade  I etc.  These Rules were continued in the State of Andhra Pradesh with  suitable adaptation.  In the year 1960, four separate Engineering

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Departments were formed.  The Andhra Pradesh Engineering Service  Rules, 1966 were issued on 22.6.1967 under proviso to  Article 309  of the Constitution of India which replaced the Madras Rules.  Thereafter, separate Rules under proviso to Article 309 of the  Constitution were also framed in the State known as Subordinate  Engineering Service for other three Engineering Departments  namely, R & B Department, Public health and Municipal Engineering  Department and Panchayat Raj Engineering Department.  In Madras  State, the posts of Junior Engineer and Supervisor  were both in  Subordinate Engineering Service and they were carrying the same  pay scale.  If a Graduate was recruited he was described as a Junior  Engineer and given a higher start in the same pay scale.  A diploma  holder on recruitment was described as a Supervisor and was placed  in the same scale of pay, but  the nomenclature of both of them were  different i.e. Engineering Graduates were called Junior Engineers and  Diploma holders were called Supervisors.   Both were discharging   similar duties. The eligibility criteria for recruitment by transfer to the  post of Assistant Engineer ( now Deputy Executive Engineer) in the  State Service  was  five years of service for Junior Engineers and ten  years of service for Supervisors.  The Supervisors on being re- designated as Junior Engineers in order to protect  their earlier  service and for  the purpose of eligibility for appointment by transfer  as an Assistant Engineer, were given suitable weightage of  Supervisors’ service.  Subsequently, on 9.6.1971, Government of  Andhra Pradesh took a decision to constitute a separate category of  Junior Engineers distinct  from Supervisors and the posts of Junior  Engineers were made gazetted and they became part of the State  Service i.e. the Junior Engineers were designated in the State  Service whereas the Supervisors continued to be in the Subordinate  Service.  The selection for direct recruitment for both the posts was  through the State Public Service Commission.  The State Service  Rules were amended and the Junior Engineers were included in the  State  Service  as category 6 after the Assistant Engineers and  amendment was given retrospective effect from 28.2.1972.  Therefore, the Junior Engineers became  the feeder category for  appointment by promotion as Assistant Engineers. Likewise  amendment was  brought about in the Subordinate Service Rules  also and  for appointment to the post of Assistant Engineer,  Supervisors and Draughtsmen were also made eligible  and that  Junior Engineer who has put in five years of service was made  eligible for appointment by promotion to the post of Assistant  Engineer. Some representations were made by the Supervisors  seeking relief for promotion by transfer of Assistant Engineer.  Therefore, on 15.6.1972  the State Government amended the Andhra  Pradesh Engineering Service Rules and declared that the  amendment was to come into effect from 2.1.1968 till 29.2.1972.   This was the period prior to the post of Junior Engineer being made  gazetted. By virtue of this amendment the Supervisors who   had  obtained Graduate qualification and were designated as Junior  Engineers prior to 28.2.1972, were to be given weightage of earlier  service in the cadre of Supervisors for the purpose of eligibility for  appointment by transfer to the post of Assistant Engineer in the State  Service. Thereafter, some development took place and  Article 371-D   of the Constitution, a special provision in the Constitution with respect  to the State of Andhra Pradesh  was introduced by the 32nd  Constitutional amendment  in 1974. Then again some Supervisors  made representations with regard to giving the same benefit to the  Junior Engineers who had acquired Graduate qualification.  Government of Andhra Pradesh felt persuaded and issued G.O.Ms.  No.451 dated 10.6.1976. The Supervisors who had acquired  Graduate qualification while in service should be appointed  temporarily as Junior Engineers prospectively with immediate effect  and accordingly the Chief Engineer was directed to take necessary  steps.  In consequence thereof,  other issue relating to weightage of  seniority was also examined by the Government and Government

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issued an order indicating that  the Supervisors who have acquired  Graduate qualification may be appointed as Junior Engineers on or  after 28.2.1972 subject to availability of vacancies in the cadre of  Junior Engineers. It was also mentioned  in the order dated 18.7.1977  that the Junior Engineers will not be entitled for appointment as  Junior Engineers automatically from the date of acquisition of degree  qualification and  a supervisor who is appointed as Junior Engineer  would be entitled to count one-third  of the service rendered by him   before his appointment as Junior Engineer, subject to a maximum of  four years  for the purpose of computing his service as Junior  Engineer which would render him eligible for consideration for  promotion as Assistant Engineer.   It was also decided by the same  communication dated 18.7.1977 that the seniority of the Supervisors   for appointment as Junior Engineers would be fixed  with reference to  the notional date arrived at after giving weightage of service. It was  also mentioned that the Supervisor who was appointed as Junior  Engineer  should put in one year of service as Junior Engineer for  becoming eligible for promotion as Assistant Engineer.  It was also  mentioned that no Supervisor should be eligible for appointment as  Junior Engineer unless   he has put in three years of service as  Supervisors.  This was an executive instruction and the Government  was moved for necessary amendment in the Andhra Pradesh  Engineering Service Rules.  Rules were amended and in the rule  direct entry in column 2 of the table against category 6- Junior  Engineer shall be included as clause (a) and after this clause (b)   should be inserted with recruitment  by transfer of Supervisors of  Andhra Pradesh   Engineering Subordinate  service who have  acquired B.E. or A.M.I.E.  qualification and who are approved   probationer in that category. Note 3 which is more relevant reads as  under : " NOTE (3)  A Supervisor who is appointed by  transfer as Junior Engineer on or after 28.2.1972  shall be entitled to count 1/3rd of the service rendered  as Supervisor before appointment as Junior  Engineer, subject to a maximum of 4 years  weightage for the purpose of computing  the service  as Junior Engineer, which will render eligible for  consideration for promotion as Assistant Engineer,  and subject to the following conditions :-

               (i)     The seniority of a Supervisor who is  appointed as  Junior Engineer  shall be fixed in the  category of Junior Engineers with reference to the  notional date arrived at after  giving weightage of  service aforesaid;                 (ii)    A Supervisor who is appointed as  Junior Engineer shall put in a minimum service of  one year on duty as Junior Engineer, after such  appointment and a total service of five years as  Junior Engineer, inclusive of the period given as  weightage to become eligible for promotion as  Asst.  Engineer;                  (iii)   No Supervisor shall ordinarily be  eligible for appointment as Junior Engineer, unless  he has put in a minimum service of three years as  Supervisor;                 (iv)    A Supervisor with less than three  years of service, who is appointed as Junior  Engineer  for any special reasons shall not be  entitled to any weightage of his past service as  Supervisor."

5.      By virtue of this amendment the Supervisors who had done   graduation during his service career and also appointed as Junior  Engineer was eligible for promotion  for the post of Assistant

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Engineer provided he fulfilled all the necessary criteria as quoted  above. Thereafter, in this background, on 15.2.1983 Government of  Andhra Pradesh brought  the amendment  which is the subject matter  of challenge in these appeals. 6.      Aggrieved against this notification, direct recruit Engineers filed  original applications  before the Andhra Pradesh Administrative  Tribunal.   The Tribunal after considering the matter concluded that  the  Rules  framed under G.O.Ms. No.54 Irrigation (Service IV-2)  Department dated 15.2.1983 giving retrospective effect from 1972,  the introduction of the note under Category-6 in Rule 2 by excluding  the applicability of General Rule 6; introduction of Note 3 under Rule  4 providing for weightage in seniority in the cadre of Junior Engineers  for those appointed by transfer from the post of Supervisor and the  exclusion of Junior Engineers appointed by transfer from Supervisors  from the requirement of being put on probation under special rule-6  were void and they were quashed. Certain other directions were  given by the Tribunal with which we are not concerned.  Aggrieved  against this order of the Tribunal,  Special Leave Petitions were filed  before this Court  by S.Ramallaian and others which came to be  registered as Civil Appeal No.387 of 1997 and was disposed of by  this Court by  order dated 15.1.1997.  This Court after  considering  the matter, observed that  preliminary objection was raised  before  the Tribunal with regard to the maintainability of the proceedings on  the ground that  the Tribunal had no jurisdiction to examine the  controversy as it had already been settled by this Court in Devi  Prasad  and K.S.Muralidhar (supra), though the Tribunal held that  preliminary objection was without any substance and overruled the  same on the ground that in Devi Prasad and K.S.Muralidhar (supra)  the controversy was that both the posts of Junior Engineer and  Supervisor were in subordinate cadre and were governed by the  same rules for the period prior to 1972 and that after 1972 the post of  Junior Engineer was made a gazetted post in the State service.  So  far as Muralidhar’s case was concerned, the controversy about the  effect of executive instructions in G.O.Ms. No.451 of 1976 and  G.O.Ms. No.559 of 1977 were considered but neither the amendment  to the statutory rules providing for direct  recruitment nor the effect  of  the Presidential order  was brought to the notice of this Court by the  State Government. Therefore, for this reason  the Tribunal held that  both the aforesaid decisions did not examine  the validity of the  Rules. The Tribunal also took into  consideration the decision of this  Court in Venkata Reddy’s case (AIR 1993 SC 2306) and  Narayanan’s case (AIR 1991 SC 55).  It was also brought to the  notice of this Court that the decision given by the Tribunal on   1.8.1983 concluded this question where the validity of the rule was  upheld and that judgment was binding on the Principal  Bench of the  Tribunal  which disposed of the case by the judgment dated  15.6.1995.  It was submitted that  judgment dated 1.8.1983 was not  considered by the Full Bench of the Tribunal and the previous  judgment of the Bench ought to have been considered by the  subsequent Bench. This Court observed that  conflict in the decision   by two Benches is apparent therefore, this Court quashed the  judgment dated 15.6.1995 and remitted the matter back to the  Tribunal to decide the question of validity of the impugned rules  keeping in view the earlier judgment of the Tribunal dated 1.8.1983.  On being remanded by this Court, the matter again went to the  Tribunal and the Full Bench of the Tribunal by its order dated  11.12.1998 examined the validity of the aforesaid rule and affirmed  the validity of the rule and  observed as follows:

               "  (1)  The Junior Engineers on acquisition  of Degree qualification in Engineering would be  entitled for weightage of those appointments are  made or deemed to have been made under  the rules  providing for such appointments and weightage with  reference to their dates of appointment ( not with

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reference to acquisition of degree qualification)  against a vacancy in the cadre of Junior Engineer.                 (2)     The Government is advised to  consider fixing ratio between direct recruits and those  appointees by appointment by transfer  to the post of  Junior Engineer ( now Assistant Executive Engineer)  to the post of Assistant Engineer ( now Deputy  Executive Engineer)."

7.      Aggrieved against this order dated 11.12.1998 passed by the  Tribunal,  writ petitions were filed before the High Court of Andhra  Pradesh and the Full Bench of the High Court of Andhra Pradesh   reversed the judgment of the Tribunal dated 11.12.1998 by its order  dated 23.11.2001 and ultimately the Full Bench concluded as follows:

               " We are, therefore, of the opinion that the  impugned rule to the extent challenged is violative  of  Articles 14 and 16 of the  Constitution of India in so  far as vested right of the junior engineers who are  senior to them is sought to be taken away"

8.      It was also observed that  the weightage can be given only from  the date of the appointment of the Junior Engineers. The net result of  this decision of the Full Bench of the High Court was that the  retrospective effect of the rule would  result in hardship to direct  recruit but  the rule can be applied with prospective effect. Hence,   aggrieved against this judgment supervisors have filed present  appeals.  9.              We have heard learned counsel for the parties and  perused the records. The principal submission of learned senior  counsel for the appellants was that after decision given in the case of  Devi Prasad and K.S.Muralidhar (supra) it was not proper for the  Full Bench of the High Court to have reversed the judgment of the  Full Bench of the Tribunal. Learned counsel submitted that in view of  the clear decisions of this Court cited above,  the question of validity  of the rule is beyond the challenge  and the Full Bench of the High  Court has not properly considered  the  decisions in Devi Prasad’s  case and K.S.Muralidhar’s case (supra), which has caused  miscarriage of justice.  Therefore, in  this background, we shall   examine the validity of the aforesaid Rules and various decisions  of  this Court to see whether  the validity of the Rules is no more res  integra or not.  In this light we would first consider the first decision in  point of time i.e. Devi Prasad’s case (supra). 10.             The controversy whether weightage can be given to  Junior Engineers who have acquired  graduate qualification is ragging  right from 1967 which led to filing of writ petition and ultimately  reached to this Court in the case of Devi Prasad & Ors. (supra).  In  Devi Prasad’s case, same question came up for consideration in  relation to A.P. Engineering Subordinate Service Rules, for post of  Supervisor.  In that case diploma holders were recruited as  supervisors and degree holders were recruited as Junior Engineers.   They were discharging substantially same functions.  However, for  promotion to the post of Assistant Engineer, a degree holder who put  in five years’ service was eligible while for diploma holders, minimum  service of 10 years was prescribed.  Thereafter, the Government vide  GOMs No.893 laid down that if a Supervisor acquires a degree while  in service and renders service as Supervisor, he would be given  weightage as Junior Engineer for half the period of his service as  Supervisor subject to a maximum of four years for promotion to the  post of Asstt. Engineer. This was challenged on the envil of Articles  14 and 16.  The relevant note appended to Rule  reads as under : "Note 2\027Supervisors who acquire, while in service,  B.E.M.I.E. (India) qualification shall be entitled to  count 50 per cent of their service rendered as  Supervisor prior to acquisition of such qualification,

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subject to a maximum limit of 4 years as if it had  been in the post of Junior Engineers for the purpose  of consideration for appointment by transfer to the  post of Assistant Engineer from Junior Engineers  and subject to the following conditions :  (1)     They should render a minimum service of one  year after acquisition of B.E. or A.M.I.E.  (India) qualification: (2)     They should be considered to have been  placed below the list of the Junior Engineers  of the year after giving weightage as indicated  above. (3)     They should put in a total service of 5 years  as Junior Engineer inclusive of the period  given as weightage. (4)     The benefit of weightage given above shall be  given effect for the purpose of all selections  that are made by Public Service Commission  pertaining to the years from 2nd January,  1968 onwards till 28th February, 1972."

       In that context, Their Lordships held :

"To decide what weightage should be given as between  two categories of Government servants rendering  somewhat similar kind of service. In the present case,  there may be truth in the case of the appellants that they  are hit hard because of the new rule. Dr. Chitale tried to  convince us of the hardship that his client sustain  consequent on this rule and weightage conferred thereby.  But more hardship without anything arbitrary in the rule  does not call for judicial intervention, especially when it  flows out of a policy which is not basically illegal.  However, government must be interested in keeping its  servants specially in strategic areas like engineering  contended and efficient. In so producing contentment, it  may have to evolve a flexible policy which will not strike a  group as inflicting hardship on them."

       It was further held :

"In the present case the Supervisors and the Junior  Engineers were discharging substantially similar  functions; the Supervisors were eligible to get the special  weightage only if they acquired an engineering degree  and the weightage to be given was only for half of the  period they had served as Supervisors.  In spite of the  two discharging substantially similar functions there was  inequality of opportunity in matters of promotion of the  Supervisors vis-‘-vis the Junior Engineers and, therefore,  the government tried to mitigate the hardship by framing  the weightage rule.  Thus, in the light of the wide  experience and basic qualification of the Supervisors,  there is nothing capricious in giving them the limited  benefit or weightage under the new rule.  The weigtage  rule is not, therefore, violative of Articles 14 and 16."

11.             Validity of this Rule was upheld by this Court.  Their  Lordships observed  "in the light of their wide experience and basic  qualification, we are unable to say that there is anything capricious in  giving them the limited benefit or weightage under the new rule."  

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Therefore, the controversy of giving them the benefit of the service as  a supervisor to the extent of 50 per cent after obtaining degree and  maximum limit of four years was upheld way back in 1980 by this  Court. 12.             Similarly, again this matter came up before this Court in  the case of K.S. Murlidhar (supra) and also a weightage of four years  in respect of upgraded Junior Engineer was held to be reckoned from  the date of appointment and not from the date of their acquiring the  degree qualification and on the basis of that, notional date has to be  arrived at for fixation of seniority. The case of Devi Prasad (supra)  was reiterated and reaffirmed.  Though a question with regard to  Special Qualifying Test was also there but we are not concerned with  that.  There is also a GOMs No.451dated June 15, 1976 came up for  consideration.  This was with regard to appointment of Supervisors  who acquired graduate qualification while in service.  In that context,  the Government laid down a policy which will speak for itself.  The  Government Order reads as under : "GOVERNMENT OF ANDHRA PRADESH ABSTRACT Establishment\027Irrigation and Power Department\027 Appointment of Supervisors who have acquired Graduate  Qualification as Junior Engineers\027Orders\027Issued. Irrigation and Power (Ser.II) Department G.O. Ms.  No. 451 Dated: 10-6-1976 ORDER:  Consequent on the declaration of the posts of Junior  Engineers as Gazetted with effect from 28.2.1972, the  upgradation of Supervisors who acquired Graduate  Qualification while in service, as Junior Engineers,  ceased. Since then representations have been made to  Government by several Associations that the benefit of  upgradation should be extended also to Supervisors who  acquired the Graduate qualification on or after 28.2.1972. 2. On a reconsideration of the matter, the Government  are of the view that some consideration should be shown  to the Supervisors who have acquired the Graduate  qualification while in service. Accordingly the Government  have decided that the Supervisors in P.W. (Irrigation)  Department who have acquired Graduate qualification  while in service should be appointed temporarily as Junior  Engineers (Prospectively) with immediate effect. The Chief Engineer (General) is requested to take action  accordingly, Orders regarding other consequential  matters will issue separately. (BY ORDER AND IN THE NAME OF THE GOVERNOR  OF A.P.) M.GOPALAKRISHNAN, SECRETARY TO GOVERNMENT"

13.             In this GOMs, it is proposed to extend the benefit of  upgradation to Supervisors who acquired the graduate qualification  on or after February 28, 1972 but the second para makes it clear that  they would be appointed temporarily as Junior Engineers and that too  prospectively.  The GOM No.559 dated July 18, 1977 was issued by  the Government which reads as under : "GOVERNMENT OF ANDHRA PRADESH ABSTRACT ESTABLISHMENT-Irrigation & Power Department\027 Appointment by transfer of Supervisors who have  acquired Graduate qualification from 28.2.1972 onwards  as Junior Engineers\027Further orders\027Issued. IRRIGATION & POWER (SERVICE - III) DEPARTMENT G.O. Ms. No. 559 Dated 18th July, 1977 Read the following:- G.O. Ms. No. 451, Irrigation & Power (Ser.III) Department,

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dated 10.6.1976. ORDER: It was ordered in the G.O., cited that the Supervisors in  the Public , Works (Irrigation) Department, should be  appointed temporarily as Junior Engineers (Prospectively)  with immediate effect. It was also indicated therein that  orders regarding other consequential matters would issue  separately. 2. Accordingly, matters relating to weightage, seniority,  etc., have been examined by the Government, and the  following orders are issued:- (i)     Supervisors who acquire Graduate qualification may  be appointed as Junior Engineers on or after  28.2.1972, subject to the availability of vacancies in  the cadre of Junior Engineers. They will not be entitled for appointment as  Junior Engineers automatically from the date of  acquisition of degree qualification;  (ii)    A Supervisor, who is appointed as Junior Engineer,  shall be entitled to count l/3rd of the service  rendered by him as Supervisor, before his  appointment as Junior Engineer, subject to a  maximum of four years, for the purpose of  computing the service as Junior Engineer, which will  render him eligible for consideration for promotion  as Assistant Engineer. (iii)   The seniority of the Supervisors, who are appointed  as Junior Engineers, shall be fixed with reference to  the notional date arrived at after giving weightage of  service;  (iv)    A Supervisor, who is appointed as Junior Engineer,  shall put in a minimum service of one year as Junior  Engineer to become eligible for promotion as  Assistant Engineer;  (v)     No Supervisor shall ordinarily be eligible for  appointment as Junior Engineer unless he has put  in a minimum service of three years as Supervisors.  A supervisor with less than three years of service,  who is appointed as Junior Engineer for any special  reason, shall not be entitled to any weightage for his  past service. 3. Necessary amendment to the Special Rules for the  Andhra Pradesh Engineering Service will be issued  separately. The Transport, Roads & Buildings/Panchayati  Raj/Housing, Municipal Administration & Urban  Development Department will issue amendments to the  Special Rules with which they are concerned in  accordance with the above decisions in consultation with  the Andhra Pradesh Public Service Commission. 4. The cadre strength of Junior Engineers was last fixed  in G.O.Ms. No. 240, Public Works (VI) Department, dated  28.2.1972. Since then a large number of posts of Junior  Engineers/Supervisors have been sanctioned by  Government. The Chief Engineer (General) is requested  to submit proposals for suitably enhancing the strength of  the two orders. (BY ORDER AND IN THE NAME OF THE GOVERNOR  OF A.P.) M.GOPALAKRISHNAN, SECRETARY TO GOVERNMENT."

14.             This order came up for consideration in Murlidhar’s case.   Their Lordships, after putting the Government Orders in chronological  order, held that the effect would be that those Supervisors  who

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acquired graduate qualification while in service, would be entitled to  the weightage of four years of service for future  appointment.    It  was clarified that GOMs does not anywhere indicate that the  weightage should be from the date of acquiring the degree  qualification.  Their Lordships observed that it is only after acquiring  such degree qualification that a Supervisor is appointed as Junior  Engineer and having regard to the service rendered by him the  Government as a policy decided to give weightage of four years for  the purpose of considering the eligibility for promotion to the post of   Assistant Engineer.  It was contended on behalf of the direct recruits  that  giving benefit of past service to  Junior Engineers retrospectively  prior to their date of  appointments would be  detriment to their   interest and  would be  arbitrary.  This Court held "In this context the  Tribunal has rightly pointed out that under Rule 23-A of the A.P. State  and Subordinate Service Rules, 1962, if a person having been  appointed temporarily under Rule 10 to a post borne on the cadre is  subsequently appointed in the service in accordance with the Rules  he shall commence his probation from such subsequent date or the  earlier date as the appointing authority may determine.  We agree  with the Tribunal that there is no bar to the retrospective  regularisation of the service of the direct Junior Engineers." This  Court reaffirmed the ratio of  Devi prasad’s judgment (supra).  "In  Devi Prasad’s v. Government of A.P. [1980 Supp. SCC 206] G.O.Ms.  No.893 referred to above was questioned on the ground of  unreasonableness in the matter of giving weightage to the upgraded  supervisors.  This Court held that in the light of their experience there  is nothing unreasonable in giving them limited benefit or weightage."  Their Lordships quoted a passage from Devi Prasad’s Case (supra).   Their Lordships in para 19 summed up the ratio.  It reads as under : "Having given our careful consideration particularly to the  fact that this litigation has been pending for the last so  many years, about two decades. We feel that it is high  time a finality has to be reached by resolving the  controversies and in this context we are of the view that  the approval of the Public Service Commission in respect  of these appointments need not be sought, if the  Government has not already obtained the approval of the  Public Service Commission. To sum up, our conclusions  are as under: (i) The weightage of four years in respect of upgraded  Junior Engineers as provided in G.O. Ms. No. 559 has to  be reckoned from the date of appointment and not the  date of their acquiring the degree qualification;  (ii) On the basis of that notional date, their inter-se  seniority has to be fixed;  (iii) The regularisation of the degree-holder Junior  Engineers who passed the SQT by giving retrospective  effect cannot be held to be illegal, and their seniority  among themselves shall be subject to the order of ranking  given by the Public Service Commission on the basis of  the SQT;  (iv) The Government shall prepare a common seniority list  of the degree-holders Junior Engineers and the upgraded  Junior Engineers on the above lines and that list shall be  the basis for all the subsequent promotions. Promotions,  if any, already given shall be reviewed and readjusted in  accordance with the said seniority list; and (v) The approval of the Public Service Commission in  respect of these appointments and their seniority thus  fixed need not be sought at this distance of time."

15.             Therefore, the question of giving weightage to the  Supervisors vis-‘-vis the direct recruits were again reiterated and  reaffirmed in this case with reference to Devi Prasad’s case.  So far  as these two decisions are concerned, the principle of giving

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weightage of the service of graduate Supervisors as Junior Engineers  has been upheld by this Court.   In view of  ratio laid down in above  two decisions of this Court, the  validity of Rule stands  affirmed.   It is   true that prior to aforesaid amendement those were executive  instructions, those executive instructions were incorporated by  amendment in Rules under proviso to  Article 309 of the Constitution  of India. 16.             Therefore, the validity of these Rules  were challenged in  this third round of litigation. But  difficulty arose  when a contrary view  was taken by this Court in the case of K. Naryanan and Others v.  State of Karnataka & Ors. [1994 Supp (1) SCC 44].  In this case, an  almost similar rule came up for consideration and here also in the  State of Karnataka, a retrospective benefit was given to Supervisors  on obtaining graduation degree. Their Lordships held that  retrospectivity had no nexus with arrangements made by the  Government to facilitate the acquisition of such qualification.   Therefore, Rule 1(2) providing a retrospective operation from January  1, 1976 of the Karnataka Public Works Engineering Department  Service (Recruitment) (Amendment) Rules, 1985 were struck down.   Their Lordships referred to both decisions of Devi Prasad (supra) and  Murlidhar (supra) and observed that though in neighbouring State of  Andhra Pradesh in Devi Prasad’s case a weightage has been upheld,  Their Lordships observed "It was upheld by this Court in Devi  Prasad’s case as the Court did not find that the rule giving weightage  for having served as Junior Engineer was unreasonable or shocking."   Similarly, it was further observed "in Devi Prasad, this Court  distinguished Desai case where period prior to appointment counted  for determining seniority was not approved by this Court as the  diploma holders in Andhra Pradesh were granted benefits under the  rule."  Then Their Lordships further observed "Devi Prasad’s  case  was upheld by this Court because it was found, ’as reasonable and in  the circumstances fair’.  The dispute was between non-graduate  diploma holders working as supervisors and graduates working as  Junior Engineers.  Since the Court found that there was functional  parity between supervisors and Junior Engineers the rule framed by  the Government giving weightage of four years to supervisors to  make them eligible for appointment as Assistant Engineer was not  invalid."  Similarly, while referring Murlidhar’s case Their Lordships  observed "In State of A.P. v. K.S. Murlihdhar, the temporary  supervisor who had succeeded before this Court in Devi Prasad’s  case claimed seniority from the date of acquiring academic  qualification.  It was repelled and it was held that it could be from the  date of appointment only."  Lastly in Para 8, Their Lordships further  recorded "so far as weightage is concerned such provision has been  upheld by this Court in Devi Prasad’s case.    Even the appellants  candidly stated that they were not against weightage."  Therefore,  after reviewing both these decisions Their Lordships did not comment  adversely and distinguished  both these cases by observing that   there was functional parity between Supervisors and Junior  Engineers in Andhra Pradesh. It was  observed by  the Full Bench of  the High Court  that there is contradiction between the two decisions  and it needs to be clarified.   We fully agree with the observations  made by the High Court that  there is apparent contradiction between  the two decisions given in  K.Narayanan’s case and Devi Prasad and  Murlidhar’s case. The matter does not end here. The matter is further  confounded by another decision given in G.S.Venkata Reddy & Ors.  etc. etc. v. Government of A.P. [AIR 1993 SC 2306]. In this case, the  validity of the Rules of 1983 were not directly in question but in  paragraphs 11 & 12 of the judgment while dealing with the question  whether the Supervisors upgraded as Junior Engineers can claim  seniority over the temporary employees on the plea that they fall  within  the expression ’last regular appointment’, their Lordships gave  historic background of the designation of Supervisors  as Junior  Engineers on graduation and the diploma holders Supervisors and in  that context their Lordships observed as follows :

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"11.    That takes us to the question whether the  Supervisors upgraded as Junior Engineers can claim  seniority over the temporary employees on the plea  that they fall within the expression ’last regular  appointment’.  We have already pointed out the  historical back-ground in regard to the  appointment  of supervisors and their designation as Junior   Engineers on graduation.   The entry qualifications  for Supervisors and those of the Junior Engineers  were  undoubtedly different.  While for Junior  Engineers the minimum educational requirement was  a Graduate in Engineering, a Supervisor need not be  a graduate.  The pay scale of the Supervisors was  admittedly slightly below  that of the junior Engineers.   They, therefore,  belonged to  separate cadres.   Even  though both the Supervisors and  Junior  Engineers were selected through the State Public  Service Commission,  considerations for selection  may be  different.   A Supervisor was redesignated  as a Junior  Engineer on his acquiring a degree in   Engineering, subject to availability of posts.   Such  upgraded  Junior Engineers could not claim  weightage of service as Supervisors for counting  their experience as Junior Engineers for further  promotion.  In SLP) No. 12 of  1975 decided on  February 24, 1975 this Court clarified;

               "However,   having studied  the rules carefully  and in the light of a decision of this Court  in State of  Gujarat v. C.G. Desai,  (1974) 1 SCC 188; (AIR 1974  SC 246)  we are satisfied that the petitioner who is a  degree holder must qualify under Rule 6 by being a  junior Engineer of five years’ experience.  He cannot,   when there is a shortfall in his period, make up by  attracting his service as Supervisor."

       The averment that a common seniority list of  Supervisors and Junior Engineers  was maintained  has been disputed and there is no finding of fact  recorded by the Tribunal in support thereof.   It is,  however,  not in dispute that Supervisors as well as  Junior Engineers were non-gazetted till the issuance  of the orders dated June 7, 1976   made effective  from February 28,  1972.  After the said orders  Supervisors who acquired a degree after the cut-off  date, i.e. February 28, 1972,  could aspire to be  designated Junior Engineers (Gazetted)  only by the  mode of transfer in view of the amendment in the  rules by GOMs No. 428 dated March 30, 1979.  The  note at the  foot of the said GOMs is of relevance.   By virtue thereof a Supervisor appointed Junior  Engineer by transfer on or  after February 28,  1972   became entitled to count 1/3rd of his service as  Supervisor subject to a maximum of 4 years,  for  computing the service as Junior Engineer for further  promotion as Assistant Engineer.  This was however  subject to the  condition that  he should have  completed at least one year’s service as Junior  Engineer to  become eligible for promotion to the  said post of Assistant Engineer.  But no such  weightage  was to be allowed  to a Supervisor who  had not completed three years’ service as   Supervisor prior to becoming a Junior Engineer.   

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The benefit of weightage is restricted to a  Supervisor  who has been appointed a Junior Engineer and who  seeks further promotion as an Assistant Engineer."

17.     Hence, we sum up the matter and frame the  following question  for determination for larger bench.         "Whether the decision given in the cases of  Devi Prasad’s v.  Government of A.P. [1980 Supp. SCC 206] &  State of Andhra  Pradesh & Anr. v. K.S.Muralidhar & Ors. etc. [(1992) 2 SCC 241]  laid  down the correct law or the decision given in the cases of   G.S.Venkata Reddy & Ors. etc. etc. v. Government of A.P. [AIR 1993  SC 2306], K. Naryanan and Others v. State of Karnataka & Ors.  [1994 Supp (1) SCC 44] & State of Gujarat v. C.G. Desai,  (1974) 1  SCC 188 laid down the correct proposition of law?

18.             Therefore, in the facts and circumstances of the case, we  refer these matters to a larger Bench.  The Registry is directed to  place these matters before the Hon’ble the Chief Justice of India for  constitution of larger Bench so that the controversy could be finally  put to rest.