MOHAMMAD SHUJAT ALI SUNKARA RATTAIAH V MARKANDEYA M NAGENDER RAO Vs. UNION OF INDIA

JUDGEMENT

(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.

(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: <FRM>JUDGEMENT_76_3_1975Html1.htm</FRM>