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PETITIONER: THOTE BHASKARA RAO

       Vs.

RESPONDENT: A.P. PUBLIC SERVICE COMMISSION AND OTHERS.

DATE OF JUDGMENT25/11/1987

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) SEN, A.P. (J)

CITATION:  1988 AIR  830            1988 SCR  (2)  35  1987 SCC  Supl.  587     JT 1987 (4)   464  1987 SCALE  (2)1166  CITATOR INFO :  D          1988 SC1369  (15)

ACT:      Andhra Pradesh  State  Judicial  Service  Rules:  Rules 2(15)(a) and  12-District Munsif-Recruitment  of-Eligibility conditions-Experience   in    ’Government   Service’-Whether service  in   Hindustan  Shipyard,  a  Government  of  India Undertaking can be equated to ’Government service.’.      Constitution  of  India,  1950:  Articles  12  and  14- Hindustan Shipyard, a Government of India undertaking-Though ’State’ for purposes of Part III of the Constitution-Whether service   in    such   undertaking   ’Government   service’- Classification based  on difference  in  nature  of  service under Government  and that of other services- Whether valid- Proviso to  Rule 12 of Andhra Pradesh State Judicial Service Rules-Validity of.

HEADNOTE: %      The appellant  who had  enrolled himself as an Advocate on 24.2.77  and  practised  law  till  1.4.81  when  he  was appointed in  the service  of  the  Hindustan  Shipyard,  an undertaking owned  by the  Government of  India, applied for the  post   of  a   District  Munsif,  in  pursuance  of  an advertisement dated  25.4.84 issued by the respondent No. 1- Andhra Pradesh  Public Service Commission for filling up, by direct recruitment,  of vacancies reserved for the Scheduled Castes. His  application was  rejected by the respondent No. I, as  in its  opinion, he  did  not  fulfil  the  necessary qualification fixed  under Rule  12 of  the  Andhra  Pradesh State Judicial  Service Rules and was, therefore, ineligible for appointment.      The appellant  challenged the aforesaid decision before the High Court. A Single Judge allowed the writ petition and directed the  first respondent  to consider  the appellant’s candidature.  The   Letters  Patent   Appeal  filed  by  the respondent was allowed and the writ petition was dismissed.      In the appeal by special leave, the appellant contended that as  he had practised for a requisite period immediately prior to his entering 36

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service of  Hindustan Shipyard,  an undertaking owned by the Government of  India, he  must be  held to  be qualified for appointment, that  no distinction  ought to  be made between experience acquired in Government service and the one in any other service,  whether public  or private  in nature,  that this discrimination was illegal and ultra vires and that the word "Government" should be deleted from the proviso to Rule 12 so  as to  save it  from the  vice of discrimination. The respondents opposed  the  appeal  on  the  ground  that  the appellant was not in Government service.      Dismissing the appeal, ^      HELD:  1.1  There  is  no  doubt  that  the  expression "Government service"  mentioned in the proviso to Rule 12 of the Andhra  Pradesh State  Judicial Service  Rules  includes service either  under the State Government or the Government of India.  Sub-rule (15)(a)  of Rule  2  explains  that  the expression "recruited  direct" would  refer to  a  candidate including a  person in the service of Government of India or the Government  of State to be recruited directly subject to service conditions mentioned therein. [39A-B]      In the instant case, the Hindustan Shipyard, although a fully owned  undertaking of the Central Government cannot be equated with  the Government or State except for the purpose of part  III of  the Constitution.  The  undertaking  has  a separate legal  entity. The  expression "State"  does not by reason  of  Article  12  of  the  Constitution  include  the undertaking except  for the  limited purpose  which  is  not attracted in  the present  case. The appellant who is in the service of Hindustan Shipyard and is wt serving directly the Union of India cannot take advantage of the proviso. [38E-F]      1.2  What   is  forbidden   by  the   Constitution   is discrimination between  persons  who  are  substantially  in similar circumstances or conditions. An equal treatment does not  arise   as  between   persons  governed   by  different conditions  and  different  sets  of  circumstances.  It  is obviously permissible  to classify  persons into  groups and such groups  may  be  differently  treated  if  there  is  a reasonable basis for such difference or distinction. [39C-D]      Having  regard  to  the’difference  in  the  nature  of service under the Government and that of the other services, therefore, a  classification based  on that  line cannot  be struck down  on the  ground of  illegal discrimination.  The Proviso to  Rule 12  must be held to be valid and effective. [39D-E] 37

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3400 of 1987.      From the  Judgment and  order dated  23.1.1986  of  the Andhra Pradesh High Court in Writ Appeal No. 22 of 1985.      M.K. Ramamurthi,  Attar Singh  and  G.N.  Rao  for  the Appellant.      T.V.S.N. Chari for the Respondents.      The Judgment of the Court was delivered by      SHARMA, J.  The appellant’s application for appointment as a  District Munsif  by the State of Andhra Pradesh in the quota reserved  for Scheduled  Castes was  rejected  by  the Andhra Pradesh  Public Service Commission (briefly described as the  ’Commission’), respondent No. 1, which the appellant challenged before  the Andhra  Pradesh High  Court by a writ petition. The  learned Single  Judge allowed  the prayer and

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directed the first respondent to consider the candidature of the  appellant   for  the   appointment  in   question.  The respondents challenged  the decision  under Clause 15 of the Letters Patent  in the  High Court  in Writ Appeal No. 22 of 1985. The  appeal was  allowed and  the  writ  petition  was dismissed. We  have granted  leave under  Article 136 of the Constitution allowing  the appellant  to appeal  against the said decision.      2. The  appointment of District Munsifs is regulated by Andhra Pradesh  State Judicial  Service  Rules  (hereinafter referred to  as the  Rules). In response to an advertisement issued by  the ’Commission’ for filling up a large number of vacancies of  District Munsifs  by direct  recruitment,  the appellant applied.  Subsequently a  second advertisement was issued on 27.5.1984 with reference to vacancies reserved for Scheduled  Castes,   and  the   appellant  made   a   second application. His  present claim  is with  respect  to  these reserved posts.      3. After  passing the Law Examination the appellant got himself enrolled  as an  Advocate on  the rolls of the State Bar Council  on 24.2.1977  and practised law till 31.3.1981. On 1.4.1981  he was  appointed in  the service  of Hindustan Shipyard, an  undertaking owned  by the Government of India, and claims  to have remained in charge of the legal cell. As stated earlier,  he  applied  in  pursuance  of  the  second advertisement dated 27.5.1984 notified by the ’Commission- 38 In the  opinion of  the ’Commission’  the appellant  did not fulfil the  necessary qualification  fixed under  the Rules, and was therefore ineligible for appointment.      4.  The   Rules  have   laid  down   three  modes   for appointment, namely, by direct recruitment, by promotion and by transfer.  Rule 12  requires inter  alia as  an essential qualification for  a candidate for appointment as a District Munsif that  he should be in actual practice and should have been so  engaged for  not less  than 3  years in  a court of civil or  criminal jurisdiction. Since the appellant was not in actual  law practice,  reliance has  been placed  on  his behalf on  the Proviso  tc the aforementioned Rule, which is quoted below:           "Provided that  in the  case of  a person  who  is           already in  Government service and who applied for           appointment to  the post  of  District  Munsif  by           direct  recruitment,   he   must   have   actually           practised for  a period  of not  less than 3 years           immediately prior  to the date of his entering the           Government service."      5. It  is contended that as the appellant had practised for a  requisite period immediately prior to the date of his entering the  service of Hindustan shipyard, he must be held to be  qualified for  appointment. The  appellant’s claim is being refuted  by the  respondents on the ground that he was not in  Government service.  The stand  of  the  respondents appears to be well founded. The Hindustan Shipyard, although a fully  owned undertaking of the Central Government, cannot be equated  with the  Government or  State  except  for  the purposes of  Part-III of  the Constitution.  The undertaking has a separate legal entity. The expression "State" does not by reason  of Article  12 of  the Constitution  include  the undertaking except  for the  limited purpose  which  is  not attracted in the present case.      6.  Mr.   Ramamurthy,  the   learned  counsel  for  the appellant, appreciating  this position,  contended that  the word  "Government’.  should  be  deleted  from  the  Proviso mentioned  above,  so  as  to  save  it  from  the  vice  of

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discrimination. The argument is that no distinction ought to be made between the experience which a candidate acquires in Government service  and the  experience one  acquires in any other service,  whether public  or private  in  nature.  The learned counsel  urged that  it is  true that  the appellant cannot claim  to be qualified on the strength of the Proviso as it  stands now  but to  save it from being struck down as illegal, the Court should omit the word ’Government’. 39      7. There  is no  doubt that  the expression "Government service" mentioned  in the  Proviso includes  service either under the  State Government or the Government of India. Sub- rule (15)(a)  of the  definition Rule  2 explains  that  the expression "recruited  direct" would  refer to  a  candidate including a  person in the service of Government of India or the Government  of a  State to be recruited directly subject to certain conditions mentioned therein. The learned counsel for the  respondents, therefore, rightly said that a servant under the  Government of  India must  be included within the scope of  the Proviso.  Mr. Ramamurthy,  learned counsel for the appellant,  fairly conceded that the appellant who is in the  service  of  Hindustan  Shipyard  and  is  not  serving directly the  Union of  India cannot  take advantage  of the Proviso, if  the same  as it  stands is  held to  be legally valid. The  attack is  on its vires on the ground of illegal discrimination. We do not find any merit in this submission. What is  forbidden by  the  Constitution  is  discrimination between   persons   who   are   substantially   in   similar circumstances or  conditions. An  equal treatment  does  not arise as  between persons  governed by  different conditions and  different   sets  of  circumstances.  It  is  obviously permissible to  classify persons into groups and such groups may be  differently treated  if there  is a reasonable basis for such  difference or  distinction. Having  regard to  the difference in the nature of service under the Government and that of  the other  services,  therefore,  a  classification based on  that line  cannot be  struck down on the ground of illegal discrimination. The Proviso in question must be held to be valid and effective      8. The  High Court  in the  writ appeal while upholding the Proviso  has interpreted  it differently  which does not appear to be correct. However, since the learned counsel for the respondents  while defending  the decision  whereby  the appellant’s writ  application was  rejected, has stated that the interpretation put by the Division Bench was not correct and he  does not support it, it is not necessary to consider that aspect in detail.      9. In  view  of  our  finding  in  paragraph  7  above, upholding the  validity  of  the  Proviso,  as  it  is,  the appellant must  fail. Before closing, however, we would like to point  out that  the appellant cannot succeed even if the enabling provision in the Proviso relaxing the qualification clause of  Rule 12  is held  to be  ultra vires. Besides, we have serious  doubt whether  a court  can reframe a rule and give effect  to it  as suggested on behalf of the appellant, but we do not consider it necessary to deal with this aspect any  further.  In  the  result,  the  appeal  fails  and  is dismissed but, in the circumstances, without costs. N.P.V.                                     Appeal dismissed. 40