P.N.Bhagwati - (1.) THESE Writ Petition and appeals are broadly divisible into two groups, one group consisting of Writ Petition No. 385 of 1969 and Civil Nos. 601-605 and 954-955 of 1972 and the other consisting of Writ Petition No. 218 of 1970. We shall first state the fads in regard to Writ Petition No. 385 of 1969 and Civils 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.
(2.) WRIT Petition No. 385 of 1969 and Civil 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 organization 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 1/11/1956 and it is their contention that on absorption and integration 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 Subordinate Service. The State Service comprised of two classes, namely. Class I and Class II. Class I consisted of superior posts of Chief Engineer, Superintending Engineer and Executive Engineer and Junior Scale posts of Assistant Engineers, while Class II 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 28/05/1954 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 if was replaced by another course called the Overseers Civil Engineering (hereinafter briefly referred to as OCE) Course which was also a certificate couise 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 per cent 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 Associated Membership Examination", while the remaining fifty per cent 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 18/11/1955 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 appointment 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 instances were, therefore, not symptomatic of any exception to the rule that US or 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.250-400. The recruitment to the posts of Sub-Engineers was to be wholly by promotion from Supervisors. Fifty per cent of the posts of Sub-Engineers were to be filled by promotion of Supervisors who were graduates in engineering and fifty per cent by promotion of Supervisors who held LCE, LME or LEE or any other equivalent diploma or certificates 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 graduate, he should have put in at least six years' service as Supervisor and if he 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 per cent were to be filled by direct recruitment and only the remaining twenty-five per cent by promotion of Sub-Engineers. But all Sub-Engineers were not eligible for promotion as Assistant Engineers: only those Sub-Engineers who were graduates and who were below the 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 per cent 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 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 1/11/1956 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 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 1/11/1956 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 1/11/1956. The position in regard to the Engineering Service which obtained in the State of Andhra prior to 1/11/1956 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 28/09/1953 and the Special Rules for the Madras Engineering Subordinate Service issued under the notification dated 30/09/1953 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 Subordinate 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 posts 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 of the Telengana area to the State of Andhra or B.Sc. (Eng.) degree of Banares Hindu University, (2, diploma in engineering of the College of Engineering, Guindy, which was regarded as equivalent to degree in engineering, (3) US or 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 S. A and B of AMIE (Ind.) Examination, and (5) Lower Subordinate (hereinafter .referred to as LS) or OCE certificate of the College of Engineering, Guindy. The next above 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 eligibility 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 LMEJ diploma of the Technological Diploma Examination Board, Madras or Andhra. The Supervisors who possessed University degree in engineer ing 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 categories 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 12/11/1966, (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 S. A and B of AMIE (Ind.) Examination and having put in not less than 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 II posts carrying a pay-scale of Rs.250-400 unlike the posts of Assistant Engineers in the Hyderabad State which were Class I 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 28/09/1953 and 'the Madras Engineering Subordinate Service Rules dated 30/09/1953 (hereinafter collectively referred to as the Andhra Rules) continued to govern the Engineering Service in the State of Andhra Pradesh from and after 1/11/1956. 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 April 30, and 1/05/1956. Certain criteria were also laid down 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 listof Junior Engineers/Supervisors from Telengana and Andhra regions was approved by an order dated 20/04/1963 made by the government of Andhra Pradesh. This provisional common gradation listwas 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 listbut the principal representation made by them was that promotions which had been made provisionally pending the preparation of the provisional common gradation listshould bereviewed 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 26/11/1956 and directed by the government of India by its letter dated 11/03/1959. The provisional common gradation listwas thereafter finalised by the government of Andhra Pradesh in accordance with the decision of the government of India under S. 115(5) of the States Reorganization Act, 1956 and the final gradation listwas published under an order dated 23/11/1967 by the government of Andhra Pradesh. The final gradation listconsisted 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 listshall come into force retrospectively from 1/11/1956. It may be pointed out that the Junior Engineers shown in the first part of the final gradation listincluded not only Junior Engineers from Andhra region but also graduate Supervisors from Telengana region. The petitioners/appellants being merely holders of US or OCE certificate of Osmania Engineering College were naturally in the second part of the final gradation listrelating to non-graduate Supervisors.
(3.) 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 24/05/1957, 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 1/11/1956. But the question was as to what should be done with regard to the officers holding the posts of Sub-Engineers immediately prior to 1/11/1956 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 23/03/1959 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 22/12/1960 was issued by the government of Andhra Pradesh laying down certain principles to be followed in regard to absorption and integration of the Sub-Engineers. These principles were that the Sub-Engineers working as such immediately prior to 1/11/1956 should be promoted as Assistant Engineers with effect from 31/10/1956 afternoon and included in the listof Assistant Engineers of both the regions as on 1/11/1956 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 arid 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 Pradesh by an order dated 31/08/1961. The result was that the Sub-Engineers from the erstwhile State of Hyderabad were promoted as Assistant Engineers with effect from 31/10/1956 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-graduate 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 24/12/1965 which directed that the following equation of posts should be adopted for drawing up the final gradation list: JUDGEMENT_76_3_1975Html1.htm Note I: The Sub-Engineers of Hyderabad should be placed en bloc below the Assistant Engineers from both the regions. Note II: The Sub-Divisional Officers of Hyderabad should be placed en bloc at the bottom of the category. The Sub-Engineers who were promoted as Assistant Engineers with retrospective effect from 31/10/1956 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 1/11/1956 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 7/04/1960 directing by way of exception, that all employees of the erstwhile State of Hyderabad would be governed by the Hyderabad Rules for promotion after 1/11/1956 to posts one stage above those held by them immediately prior to 1/11/1956. 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 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 relevant 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 7/03/1962. Clause (h)(i) was introduced in Rule 42 of these Rules by an order dated 21/07/1965 and that clause was in the following terms: Nothing in these Rules or in the Special Rules shall disqualify or shall he deemed to have ever disqualified an employee of the erstwhile government of Hyderabad who was allotted to the State of Andhra Pradesh under S. 115 of the States Reorganisation Act, 1956 for promotion or recruitment by transfer, on or after 1/11/1956. 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 to 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.;