T.S.THAKUR, J. - (1.) THESE appeals by special leave arise out of a common order passed by the High Court of Andhra Pradesh whereby Writ Petition Nos.537, 2073, 2075, 7234 and 11033 of 2002 have been partly allowed, and the order passed by Andhra Pradesh Administrative Tribunal set aside to the extent the same had declared Note 1(i) to Rule 3 of the Andhra Pradesh Educational Service Rules to be unconstitutional. To the extent the Tribunal had declared Note 6 to Rule 3 of the Rules aforementioned to be ultra vires the High Court has affirmed the view taken by the Tribunal and dismissed the writ petitions. It is noteworthy that the State of Andhra Pradesh has not assailed the judgment delivered by the High Court of Andhra Pradesh. The present appeals have been preferred by the direct recruits to the Andhra Pradesh State Educational Service who contend that the Tribunal and the High Court fell in error in declaring Note 6 to Rule 3 of the Rules in question to be unconstitutional.
(2.) THE short question that falls for consideration and that was argued at considerable length before us by learned counsel for the parties is whether persons drawn from different sources and integrated into one class/cadre/category can be classified into separate categories for purposes of promotion on the basis of the source from which they were drawn. THE question is, in our opinion, squarely covered by the decisions of this Court to which we shall presently refer but before we do so, we may briefly set out the factual backdrop in which controversy arises. In exercise of the powers vested in it under Sections 78 and 99 of the Andhra Pradesh Education Act, 1982 and in suppression of the earlier rules, the Government of Andhra Pradesh framed what are known as "Andhra Pradesh Educational Service Rules". Rule 2 of the said Rules provides for the composition of the service which broadly speaking comprises four distinct classes of employees enumerated under the said Rules. Each one of these classes in turn comprises different category of officers enlisted therein. For instance in Class-I there are in all three category of officers. In class II there are seven category of officers; while in class III there are 13 category of officers. So also in class IV there are four category of officers. Rule 3 of the said Rules prescribes the method of appointment and specifies the appointing authority for different category of posts. Since we are concerned only with promotions to class II category I posts, we may extract Rule 3 to the extent the same regulates promotion for that class and category: "3. Method of Appointment and Appointing Authority:- The Method of appointment and appointing authority for different categories of posts of service shall be as follows: JUDGEMENT_298_JT2_2010Html1.htm Under Rule 3 are placed Notes 1 to 9 which govern several aspects relating to preparation of seniority lists and the method of recruitment to be adopted for different posts as also the academic qualifications required for such promotions.
(3.) THE High Court has, as noticed earlier, declared Note 1 to be intra vires to which finding there is no challenge before us. It is the validity of Note 6 to Rule 3 which prescribes a roster for promotion to the post of District Educational Officer and Deputy Director comprising category 1 of Class II, that is under attack before us. THE Note reads: "NOTE 6 : for the purpose of promotion to category 1 of class II, the following 12 point cycle shall be followed from the feeder categories: 1. A.D., G.A.O, and A.P.O. 2. Direct recruit Dy.E.O./Gazetted Head Master Grade-I, Lecturer IASE/CTE/SCERT, Senior Lecturer DIET and Special Officer (OS) 3. Promotee Dy.E.O./Gazetted Head Master Gr.l and P.E.O. 4. Promotee Lecture IASE/CTE/SCERT, Senior Lecturer DIET and A.D. (NFE) 5. Direct Recruit Dy.E.O./Gazetted Head Master Gr.l, Lecturer IASE/CTE/SCERT, Senior Lecturer DIET and Special Officer (O.S.) 6. Promotee Lecture IASE/CTE/SCERT, Senior Lecturer DIET and A.D. (NFE) 7. A.D., G.A.O, and A.P.O. 8. Direct recruit Dy.E.O./Gazetted Head Master Grade-I, Lecturer IASE/CTE/SCERT, Senior Lecturer DIET and Special Officer (OS) 9. Promotee Dy.E.O./Gazetted Head Master Gr.l and P.E.O. 10. Promotee Lecturer IASE/CTE/SCERT, Senior Lecturer DIET and A.D. (NFE) 11. Direct Recruit Dy.E.O./Gazetted Head Master Gr.l, Lecturer IASE/CTE/SCERT, Senior Lecturer DIET and Special Officer (O.S.) 12. Promotee Lecturer IASE/CTE/SCERT, Senior Lecturer DIET and A.D. (NFE)" A careful reading of Rule 3 (supra) would show that for posts in Class II category (1) comprising District Educational Officer and Deputy Director, officers comprising categories 1 to 5, 8, 10, 11 and 12 of class III are eligible for appointment. This implies that vacancies in category 1 of class II shall be filled up in terms of the 12 point cycle stipulated in Note 6 (supra). A closer reading of Note 6 and the roster for appointment prescribed therein would indicate that appointments against vacancies in class II category 1 would, inter alia, depend upon whether the eligible officer is a direct recruit or a promotee. For instance, a vacancy at roster Point 2 would go to a direct recruit Deputy Educational Officer or a direct recruit Gazetted Head Master Grade I or Lecturer IASE/CTE/SCERT or a direct recruit Senior Lecturer DIET or a Special Officer (OS). In contradiction, a promotee Deputy Educational Officer or a promotee gazetted Head Master Grade I will not be eligible for consideration against a vacancy falling at roster Point 2. Similarly, a promotee Lecturer IASE/CTE/SCERT or promotee senior Lecturer DIET even when he or she is a member of the same class as their direct recruit counterparts in that category shall have to wait for a vacancy to occur at roster Point 4. Suffice it to say that while roster Points 2, 5, 8 and 11 have been allotted to direct recruits, the promotees have been treated differently and can be considered for vacancies at roster points 4, 6, 10 and 12 only. This classification of persons drawn from different sources who stand integrated into one class for the purpose of promotion is what was assailed on behalf of the promotee officers before the Tribunal primarily on the ground that direct recruits and the promotees may have come from different sources but once they are integrated into one class, there can be no classification as between them on the basis of their birth marks. The integration of promotees and direct recruits into one class would wipe out their birth marks with the result that the same can not be made a basis for a valid classification. Any such classification would amount to classifying equals in the matter of further promotion based solely on the source from which they were drawn. Relying upon the decisions of this Court, the Tribunal and the High Court have held that inasmuch as Note 6 to Rule 3 classifies the promotees and direct recruits for the purpose of future promotion, even after their integration into one cadre the same was discriminatory hence ultra vires of Articles 14 and 16 of the Constitution.;