WP/7086/2005 of V. Srinivasa Reddy, Vs The Government of Andhra Pradesh, on 31 December 2008

* HON’BLE SRI JUSTICE GHULAM MOHAMMED

AND

·HON’BLE SRI JUSTICE B.SESHASHAYANA REDDY·+WRIT PETITION No.7086 of 2005

% Dated: 31-12-2008Between:

V. Srinivasa Reddy

and

.. Petitioners

$ The Government of Andhra Pradeshrep. By its Principal Secretary, PanchayatRaj andRural Development Department, Hyderabad and others

.. Respondents

< GIST :

>HEAD NOTE:

? Cases referred:1.AIR 2001 SC 3082. AIR 2001 SC 5953. 1974(1) SCC 19

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

WEDNESDAY, THE THIRTY FIRST DAY OF DECEMBERTWO THOUSAND AND EIGHT

PRESENT

THE HON'BLE MR JUSTICE GHULAM MOHAMMED

and

THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY

WRIT PETITION NO : 7086 of 2005

Between:

V. Srinivasa Reddy, S/o. Narayan Reddy,

RWS, Nalgonda

AND

..... PETITIONER

1 The Government of Andhra Pradesh, Rep by its Principal Secretary, Panchayat Raj & Rural Development Department, Secretariat, Hyderabad. Panchayat Raj & Rural Development Department, Secretariat, Hyderabad.

2 The Commissioner of Panchayat Raj & Rural Employement Department, Andhra Pradesh, Hyderabad. Andhra Pradesh, Hyderabad.

.....RESPONDENT(S)

Petition under Article 226 of the constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court will bepleased to to issue writ order or direction more particularly one in the nature ofwrit of "Certiorari" calling for the records relating to the order of the Hon'bleA.P. Administrative Tribunal dated 13-9-2004 in O.A.No. 9317/2002 andquash the same and also declare Note-3 (iii) of Rule-3 of A.P. Panchayat Rajand Rural Development Engineering Service Rules as illegal, bad, arbitraryand violation of Articles 14 & 16 of the Constitution of India and further directthe respondents to consider only such of thouse Deputy Executive Engineerswho possess the qualifications prescribed in the Annexure to Rule-3(b) andpass such other order or orders as this Hon'ble Court may deem fit and properin the circumstances of the case Counsel for the Petitioner:MR.M.RATNA REDDY

Counsel for the Respondent No.: GP FOR SERVICES II

The Court made the following :

THE HON’BLE SRI JUSTICE GHULAM MOHAMMED

AND

THE HON’BLE SRI JUSTICE B. SESHASHAYANA REDDY

W.P.No.7086 of 2005

Order: ( Per Sri GM, J)

The writ petitioner herein is applicant in O.A.No.9317 of2002. The writ petitioner and one N. Ram Mohan Rao, filedO.As., before the Tribunal seeking declaration that note 3(ii) and(iii) of the Rule of 3 of Andhra Pradesh Panchayat Raj and RuralDevelopment Services Rules, ( for short “the Rules”), asarbitrary, illegal and violative of Articles 14 and 16 of theConstitution of India and to direct the respondents to consideronly such of the Deputy Executive Engineers who possess thequalifications prescribed in the Annexure to Rule 3(b) forpromotion to the post of Executive Engineers.

Conclusion

It is the case of the applicants before the Tribunal that theyjoined the government service as Assistant ExecutiveEngineers ( A.E.Es.) in the year 1980 and later they wereselected by the APPSC and appointed in the year 1984. Theapplicants were promoted as Deputy Executive Engineers, on6-2-1990 and 11-2-1991 respectively. The post of AssistantExecutive Engineer is governed by the Rules issued inG.O.Ms.No.291 dated 23-3-1963 and the same were amendedvide G.O.Ms.No.662 dated 24-11-1987, providing a channel forAssistant Engineers (Supervisors) by transfer to the post ofAssistant Executive Engineer subject to acquiring Engineeringgraduation qualification. The Supervisors are eligible forpromotion to the post of Deputy Executive Engineer to theextent of 1/4[th] of the vacancies. As per G.O.Ms.No.662 dated26-11-1987, the Assistant Engineers on appointment asAssistant Executive Engineers are entitled to count 1/3[rd] of theservice rendered as Assistant Engineer before his appointmentas Assistant Executive Engineer subject to a maximum of fouryears. The Assistant Executive Engineers are entitled forpromotion to the post of Deputy Executive Engineer to theextent of two vacancies out of three vacancies. The Government issued revised Special Rules throughG.O.Ms.No.15, PR&RD, dated 8-1-1999, according to which, thepost of Assistant Executive Engineer is to be filled only by directrecruitment. The post of Deputy Executive Engineer is to befilled by promotion from the Assistant Executive Engineer cadreand by appointment by transfer of Assistant Engineer(Supervisors), Draughtsman Special Grade and DraughtsmanGr.I. As per Note-I of Rule-3 of the Rules, the A.Es.(supervisors) are entitled for 4[th], 8[th], 12[th], 16[th], 20[th], 24[th] and28[th] vacancies in a cycle of 36 vacancies to the cadre of DeputyExecutive Engineers. According to the petitioner, 32[nd]vacancy goes to the Draughtsman Special Grade andDraughtsman Gr.I and 36[th] vacancy has to be filled byappointment by transfer of A.E (Supervisors) with B.E. technicalqualification. Rule 3(b) of the Rules clearly prescribes that noperson shall be eligible for appointment to the post of ExecutiveEngineer by promotion unless he possess a Bachelors Degreein Civil or Mechanical Engineering or a pass in Section A and Bof AMIE examination conducted by the Institute of Engineers inCivil or Mechanical Engineering or a pass in Section A and B ofAMIE examination conducted by the Institute of Engineers inCivil or Mechanical or AMIE and B.Sc. (Engineering) of RanchiUniversity or an equivalent qualification. The post of ExecutiveEngineer is to be filled up by promotion from the category ofDeputy Executive Engineer. It is noteworthy that bachelorsengineering degree is prescribed as qualification for the post ofExecutive Engineer.

As stated above, the applicants in the O.As., questionedthe validity of Note 3(ii) and 3(iii) under Rule 3(a) of the Rulesmainly on the ground that they are violative of Article 14 and 16of the Constitution of India ; and that when in the Annexure toRule 3(b) a qualification of degree in engineering is prescribed there could be no provision for a quota in favour of non-graduates.

The Tribunal by its impugned order struck down Note- 3(ii)of Rule 3(a) of the Rules as unconstitutional, while upholding note 3(iii) of the Rule 3(a) of the said Rules.

In this Writ Petition the petitioner-applicant challenging theorder of the Tribunal, seeks direction to declare Note 3(iii) ofRule 3(a) of the Rules as arbitrary and illegal, on the ground thatthe candidates promoted to the post of Deputy ExecutiveEngineer from different feeder categories will form one class andthat there cannot be any further classification from among thesaid class for the purpose of promotion to the next highercategory of Executive Engineer.

Heard, Sri M. Ratna Reddy, learned counsel for thepetitioner, learned Government Pleader for Services II, Sri, M.Surender Rao, J.R. Manoher Rao, B. Adinarayna Rao, and SriS. Sharat Kumar, learned counsel for the respondents.

Sri M. Ratna Reddy, learned counsel for the petitionercontends that as long as the qualification of graduation isprescribed, for the post of Executive Engineer, by way ofpromotion from the post of Deputy Executive Engineer, thediploma-holders cannot be granted the benefit of promotionsuntil they acquire the qualification of graduation. He alsocontends that in view of amendment brought out inG.O.Ms.No.314 dated 17-8-2002, note 3(ii) and (iii) of the Rule 3of the Rules, which provide for promotion to non-graduates tothe post of Executive Engineer, is deemed to be inoperative. Itis the contention of the petitioner that as the Deputy ExecutiveEngineer belong to one category, there cannot be any furtherclassification among them, providing quota for promotion forgraduates and non-graduates to the post of Executive Engineerand that the rule providing ratio under note 3 (iii) of the Rule 3 of the Rules is also liable to be struck down.

Sri M. Surender Rao, learned counsel appearing forrespondents contends that qualification prescribed for the postof Executive Engineer in Rule 3(b) and note thereunder has tobe read as part of note 3(iii) and Rule 3(a) of the Special Rulesand the intention of the rule making authority in amending therules through G.O.Ms.No.314, dated 17-8-2002 is to reduce theservice to be put in by the diploma holders from six years tothree years and not to make diploma holders in eligible forpromotion as Executive Engineers. In support of his contention,reliance has been placed on the decisions reported inKULDEEP KUMAR GUPTA v. H.P.S.E.B. ((1) AIR 2001SUPREME COURT 308 ), K. R. LAKSHMAN v. KARNATAKAELECTRICITY BOARD ( (2) AIR 2001 SUPREME COURT595). Learned counsel for the contesting respondents alsocontends that the Tribunal considering the material on recordupheld Note- 3(iii) of Rule 3(a) of the said Rules, whichstipulates that the post of Executive Engineer shall be filled byGraduate and Non-graduate Deputy Executive Engineers in theratio of 3:1 calculated on the total cadre strength of the saidcategory of posts in the department and the same needs nointerference by this Court. It was also contended that the post ofExecutive Engineer has to be filled in 3:1 ratio with reference tothe cadre strength and not based on the vacancies. LearnedGovernment Pleader submits that note 3(iii) is not contrary toRule 3(b) of the Rules and that very purpose of m aking theabove note as amended in G.O.Ms.No.314 dated 17-8-2002 isto consider non-graduate Deputy Executive Engineers also forpromotion to the post of Executive Engineer.

Sri. J.R. Manoher Rao, and Sri B. Adinarayana Rao, contends that diploma holders are not eligible to be promoted as Executive Engineers as they do not possess the

Issues

qualifications prescribed under the rules. If the diploma holdersclaim promotion to the post of Executive Engineer basing on therules in force prior to 2002, they should have six years ofmeritorious service. However, it is submitted, after substitution ofthe rule in the year 2002 the diploma holders are not eligible tobe promoted and that rule 3(b) makes it clear that only degreeholders are eligible for promotion to the cadre of ExecutiveEngineer, and therefore a rule cannot be read contrary to whatis prescribed therein.

The issue that arises for consideration in this writ petition isas to whether the note in 3(iii) of Rule 3(a) is contrary to the Rule3(b) of the said Rules, and the qualification prescribed forpromotion to the post of Executive Engineer in Annexure to Rule3(b) of the Rules is mandatory or directory.

Obviously, the post of Executive Engineer is to be filled upby way of promotion from the category of Deputy ExecutiveEngineer. Rule 3(b) of the Rules provides that one mustpossess Bachelor Degree Engineering qualification for thepurpose of promotion as Executive Engineer. Rule 3(b) of theRules reads as follows :

“ (b) No person shall be eligible for appointmentto any category of post specified in column (1) of theAnnexure to these Rules by the method ofappointment specified in the corresponding column(2) unless he possess the qualification specified incolumn (3) thereof.”

According to Annexure to Rule 3(b) under Class (A) Category 4of the Rules, for the post of Executive Engineer, he mustpossess Bachelor Degree in Civil or Mechanical Engineering ofa University in India established or incorporated or under CentralAct or a Provincial Act or a State Act or an institution recognized by the University Grants Commission or a pass in Section A&Bof AIME examination conducted by the Institute of Engineers inCivil or Mechanical or AIME and B.Sc. (Engineering) of RanchiUniversity or an equivalent qualification. However, Note thereinprescribes that, “ Although B.E. is the basic qualificationprescribed for the post of Executive Engineer, the DeputyExecutive Engineer with LCE/LSE/LME/LAA (Arch.) qualificationhaving meritorious record of six years service may beconsidered for promotion as Executive Engineer subject to theratio prescribed in the Note (3) under Rule 3.”

The Government by G.O.Ms.No.314 dated 17-8-2002amended the Annexure to Rule 3(b) under Class (A) Category4, prescribing minim qualifying service of three years, for thepost of Executive Engineer, which reads as follows :

“ Uniform minimum qualifying service of threeyears is prescribed for promotion orappointment by transfer to the post ofExecutive Engineer subject to the ratioprescribed in Note 3(iii) under Rule 3.”

A plain reading of annexure to Rule 3(b) of the Rules says thatonly Graduate Deputy Executive Engineers are eligible forpromotion as Executive Engineers. Note 3(iii) to Rule 3 of theRules provides for a ratio of 3:1 between graduate DeputyExecutive Engineers and non-graduate Deputy ExecutiveEngineers for promotion to the post of Executive Engineer. Byvirtue of the above note, the Deputy Executive Engineerswithout degree qualification are also eligible for promotion to thepost of Executive Engineer against the 4[th] vacancy in a unit of 4vacancies.

The Apex Court in STATE OF JAMMU AND KASHMIR v.TRILOK NATH KHASA ((3) 1974 (1) SCC 19), held thatclassification in the matters of promotion with academic or technical qualification as the basis is the matter for legislativedetermination and such a classification is permissible unless it isfound to be unjust on the face of it.

In KULDEEP KUMAR GUPTA’s case ( 1 supra ), the ApexCourt while upholding a separate quota for promotion to thecategory of Assistant Engineer in favour of Junior Engineers (unqualified ) and Junior Engineers ( Qualified) held that whenthe classification is challenged as being discriminatory, unlessand until sufficient material is produced and it is established thatit is unjust on the face of it, by the persons assailing theclassification, the Court would be justified in coming to theconclusion that such plea of unlawful discrimination has nobasis.

In K.R. LAKSHMAN’s case ( 2 supra ), KarnatakaElectricity Board amended regulation providing ratio of 1:1between technically qualified direct recruits and technicallyunqualified (promotees) persons as against 35% quotaavailable to them. Considering those situations, it was held asfollows :

“4. The Recruitment and other service conditions includingpromotion in the Karnataka Electricity Board is governed by a setof regulations called the Karnataka Electricity Board Recruitmentand Promotion Regulations (hereinafter referred to as 'theRecruitment Regulations). The Recruitment to the post ofOperator, Meter Reader and Assistant Store Keeper, whichconstitute a combined cadre, is made both by direct recruitmentas well as by promotion, on the basis of seniority-cum-merit. TheRegulation provides that 50% of the combined cadre would befilled up by direct recruitment and 40% of the cadre by promotionon the basis of seniority-cum-merit and equivalent post and 10%by direct recruitment from among the in-service personnel. Theminimum qualification for direct recruitment is I.T.I. certificate inElectrical or Telecommunication or Electronic trade or certificatein Lineman trade of Karnataka Electricity Board TrainingInstitute, after passing of the 10th standard, whereas forpromotees, from the Mechanic Grade II, the minimumeducational qualification is upto 10th standard. The next higherrank is the Junior Engineer (Electrical) and the cadre of JuniorEngineer is required to be filled up, by direct recruitment ofpersons possessing diploma in Electrical or ComputerEngineering to the extent of 40%. Against this 40% quota,appointment could be made by transfer of in-service personnel,possessing Engineering Degree qualification. 10% of the cadre ofJunior Engineer could be filled up by direct recruitment of in-service personnel possessing diploma qualification. 10% of thepost could be filled up by promotion of Operators, Meter

Readers, Overseers, Assistant Store Keepers, having diplomaqualification. 35% of the post of Junior Engineer could be filledup by promotion from the common cadre of Operators,Overseers, Meter Readers and Asst. Store Keepers and 5% bypromotion of Mechanics with five years of service. By theamendment of the Regulation in February, 1982, a ratio wasprovided in respect of the 35% quota, which was to be filled upby promotion for the common cadre, the same ratio as 1:1between the technically qualified direct recruits and technicallyunqualified promotees. It is this amendment which had beenassailed by the present appellants by filing writ petitions inKarnataka High Court. The question for consideration, thereforeis whether the amended Regulation, providing a ratio of 1:1between the technically qualified direct recruits and technicallyunqualified promotees, as against 35% quota available to them inthe cadre of Junior Engineer, could be held to be violative ofArticle 14 or such a classification is permissible in law and theRule making Authority had considered all relevant and germanematerials in providing for the aforesaid ratio? The concept ofequality before law means that among equals the law should beequal and should be equally administered and that the likesshould be treated alike. All that Article 14 guarantees is asimilarity of treatment and not identical treatment. The guaranteeof equal protection of law and equality before the law does notprohibit reasonable classification. Equality before law does notmean that things which are different shall be treated as thoughthey were the same. The principle of equality does not absolutelyprevent the State from making differentiation between thepersons and things. The State has always the power to have aclassification on a basis of rational distinctions relevant tothe particular subject to be dealt with but such permissibleclassification must satisfy the two conditions namely theclassification to be founded on intelligible differentia whichdistinguishes persons or things that are grouped fromothers who are left out of the group and that the differentiamust have a rational relation to the object sought to beachieved by the legislation. In other words, there must be anexus between the basis of classification and the object ofthe legislation. So long as the classification is based on rationalbasis and so long as all persons falling in the same class aretreated alike, there can be no question of violating the equalityclause. If there is equality and uniformity within each group, thelaw cannot be condemned as discriminatory, though due to somefortuitous circumstances arising out of a peculiar situation, someincluded in the class get an advantage over others, so long asthey are not singled out for special treatment. When a provisionis challenged as violative of Article 14, it is necessary in the firstplace to ascertain the policy underlying the statute and the objectintended to be achieved by it and having ascertained the policyand object of the Act, the Court has to apply a duel test namelywhether the classification is rational and based upon anintelligible differentia which distinguished persons or things thatare grouped together from others that are left out of the groupand whether the basis of differentiation has any rational nexus orrelation with its avowed policy and objects. The power to makeclassification can be exercised not only by the legislature butalso by the Administrative Bodies acting under an Act.5. When the validity of the amended Regulation, providing ratiofor promotion between the technically qualified and technicallyunqualified persons in 1:1 is examined from the aforesaid standpoint, we are unable to hold that the direct recruit technicallyqualified personnel had been treated with hostile discrimination.The feeder category for promotion to the post of Junior Engineeris the combined cadre of Operator-Overseer-Meter Reader-Assistant Store Keeper. To the aforesaid combined cadre, a

direct recruitment is possible and those with ITI Certificate inElectrical or Telecommunication or Electronic Trade, afterpassing of 10th standard could be recruited. Whereas in case ofpromotees, the qualification required is only study up to 10thStandard and for them the entry point is Mechanic Grade II, fromwhere they get promoted to the combined cadre, as noted above.For the technical post of Junior Engineer, which is the nexthigher post, the Regulation itself provided that 35% of the saidposts could be filled up by promotion from the common cadreand the aforesaid provision for promotion from the common cadrehad been made, after prescribing different quotas for directrecruitment of in-service personnel having diploma qualification,promotion from the combined cadre who have diplomaqualification and promotion of Mechanics with five years service.According to the Board, though the Regulation, initially providedfor promotion to the extent of 35% in the cadre of JuniorEngineer from the common cadre but it used to work out grossinjustice to the technically unqualified promotees inasmuch assuch technically unqualified operators could be considered forpromotion to the post of Junior Engineer only after they haverendered more than 15 years of service. That apart the onlypromotional avenue available to such technically unqualifiedpromotees is the 35% quota in the cadre of Junior Engineer andthey could not aspire of any further promotion, whereas thequalified direct recruits could be promoted still further higher ups.The Board claimed that while fixing the ratio as 1:1, it took intoaccount the qualification, the experience and the smoothfunctioning of the Board and for striking a balance between thequalification on the one hand and the experience on the other. InTrilokinath (AIR 1974 SC 1 : 1974 Lab IC 1), this Court hasaffirmed the principle of classification but has held that it shouldbe founded on a reasonable differentia which distinguishes thepersons grouped together from those who are left out of thegroup and in that case the classification was between the Degreeholder Assistant Engineers and Diploma holder AssistantEngineers. The Court upheld such classification as it wasintended to achieve administrative experience in the EngineeringService. In Murugesan (1993 AIR SCW 1021), a three JudgeBench of this Court upheld the ratio of 3:1 between graduateAssistant Engineers and Diploma holder Junior Engineers forpromotion to the post of Assistant Executive Engineer, as sucha distinction had been maintained throughout between the twocategories. It is no doubt true that in that case, it is the diplomaholders who had approached the Court, challenging theintroduction of ratio of 3:1 between such diploma holders andgraduate Assistant Engineers and the Court upheld theprovisions, whereas in the case in hand, it is the qualified directrecruits, who have approached the Court. But in deciding thequestion whether such a provision can be held to be violative ofArticle 14, the principle in Murugesan would apply with full forceto the case in hand. It may be noticed that the learned singleJudge relied upon the two earlier decisions of this Court inRoshan Lal Tandon (AIR 1967 SC 1889) and Mervyn Coutindo(AIR 1967 SC 52) and both the decisions have been noticed anddistinguished in Murugesan and the other decision on which thelearned single Judge has relied upon namely Shujat Ali (AIR1974 SC 1631 : 1974 Lab IC 1103), has also been explainedaway in the aforesaid three Judge Bench Judgment inMurugesan. It is no doubt true that in Trilokinath, Chandrachud, Jhad observed that the classification should not be carried too farlest it many subvert, perhaps submerge the precious guaranteeof equality, but such word of caution will have no application tothe facts of the present case, where under the Regulation itself,both the technically qualified direct recruits and non-technicalpromotees were entitled to 35% quota in the cadre of Junior

Engineer and the amendment of the year 1982 merely provided aratio between them namely 1:1 and this amendment was broughtabout in the Regulation itself to ameliorate the stagnation of theunqualified promotees in the cadre. That apart, it is not correct tohold that there has been a complete fusion in the combinedcadre inasmuch as the Regulation did provide for promotion atdifferent percentage for in-service personnel, possessing diplomaqualification, then diploma holders from amongst the combinedcadre namely Operator, Meter Reader, Overseers and AssistantStore Keepers and 5% by promotion of Mechanics with fiveyears service. Thus, 60% of the posts in the cadre of JuniorEngineers were meant to be filled up by different ratio fromamongst the persons in the so-called combined cadre and 35%quota, which was available for promotion for such common cadrepeople was further bifurcated between qualified direct recruits,who are the appellants and technically unqualified promoteers,who are the private respondents in the ratio 1:1. Such aclassification, in our considered opinion, cannot be held to bediscriminatory, if the object sought to be achieved, as indicatedby the Board in its counter affidavit is looked into. The decisionof this Court in the case of Punjab State Electricity Board,Patiala v. Ravinder Kumar Sharma, (1986) 4 SCC 617 : (AIR1987 SC 367 : 1986 Lab IC 2076), on which the learned singleJudge had relied upon and Mr. Rama Jois, appearing for theappellants had strongly relied upon was overruled by the threeJudge Bench Judgment in P. Murugesan v. State of Tamil Nadu,(1993) 2 SCC 340 : (1993 AIR SCW 1021). The decision of thisCourt in N. Abdul Basheer v. K. K. Karunakaran, 1989 Supp (2)SCC 344 : (AIR 1989 SC 1624 : 1989 Lab IC 1540), on whichalso, the learned single Judge had relied upon and Mr. RamaJois, also strongly relied upon, has been distinguished in theaforesaid case of Murugesan (1993 AIR SCW 1021). Thedecision of this Court in Mohammad Shujat Ali v. Union of India,(1975) 3 SCC 76 : (AIR 1974 SC 1631 : 1974 Lab IC 1103),which was followed in the Punjab State Electricity Board case(AIR 1987 SC 367 : 1986 Lab IC 2076), has been explained inthe aforesaid three Judge Bench Judgment. The decision ofMervyn Coutindo, (1966) 3 SCC 600 : (AIR 1967 SC 52), as wellas Roshan Lal Tandon v. Union of India, (1968) 1 SCR 185 : (AIR1967 SC 1889), has also been noticed in Murugesan, and notfollowed, but in the later case of Shamkant Narayan Deshpandev. Maharashtra Industrial Development Corpn., 1993 Supp (2)SCC 194 : (1992 AIR SCW 2867 : AIR 1993 SC 1173 : 1992 LabIC 2401), both these decisions have been distinguished, in viewof the law laid down in Triloki Nath Khosa's case (1974) 1 SCC19 : (AIR 1974 SC 1 : 1974 Lab IC 1). In the aforesaid premisesand in view of the judgment of this Court in Triloki Nath Khosa, inP. Murugesan and in Shamkant Narayan Deshpande, theDivision Bench of the Karnataka High Court was fully justified insetting aside the judgment of the learned single Judge and incoming to the conclusion that by providing a ratio of 1:1 in thematter of promotion to the post of Junior Engineer betweendirectly recruited technically qualified people and promoteetechnically not qualified people, there has been no violation ofArticle 14 of the Constitution and we see no infirmity with theaforesaid conclusion of the Division Bench of Karnataka HighCourt. Accordingly, these appeals fail and are dismissed, butthere will be no order as to costs.” (Emphasis supplied )

The post of Deputy Executive Engineer is a second levelGazetted post in Andhra Pradesh Panchayat Raj Engineering

Ratio decidendi

Service Rules and it is a zonal post. Appointment to the saidcategory is made by promotion from the category of AssistantExecutive Engineer and appointment by transfer of AssistantEngineer/Draftsmen in the ratio of 2:1 as per the cycle of rotationas prescribed in the rules. For striking a balance between thequalification on the one hand and the experience on the other,this category itself consists of both Graduate and Non-graduates, and zonal seniority list will be prepared for theDeputy Executive Engineers of each zone. The next category inthe above rule is the Executive Engineer, which is state levelcategory. For making promotion to the category of ExecutiveEngineer, which is a state level category, an integrated SeniorityList of Deputy Executive Engineers of all Zones will have to beprepared. For the purpose of making promotion a provision hasbeen made in the note 3(iii) of Rule 3, fixing a ratio of 3:1between Graduate and Non Graduate Deputy ExecutiveEngineers, though it is a common category, carrying the sameduties and responsibilities. From a close scrutiny of the nature ofduties and responsibilities of both the graduate and non-graduate Deputy Executive Engineers, fixing ratio of 3:1between graduates and non-graduates for the posts ofExecutive Engineer, against the 4[th] vacancy in a unit of 4vacancies, we are of the view that the impugned note runscontrary to the rule 3(b) of the said rules, more so in view of theamendment to rules issued vide G.O.Ms.No.314 dated 17-8-2002. A Rule cannot be read contrary to what is prescribedtherein. For a post like state level category, higher qualificationis always preferable, and a less qualified person cannot begiven preference over better qualified person, that too withoutreference to his seniority.

Be that as it may, once a person promoted from feedercategory i.e., Assistant Executive Engineer or Assistant Engineer to the category of Deputy Executive Engineer, thefeeder categories have no relevance, for the reason that oncethey have been promoted to the post of Deputy ExecutiveEngineer, the distinction between the graduate or non graduatewill disappear and they have to be treated equally for allpurposes. As held by the Apex Court in K.R. LAKSHMAN’s case( 2 supra), the State has always the power to have aclassification on a basis of rational distinctions relevant to theparticular subject to be dealt with but a such permissibleclassification must satisfy the two conditions namely theclassification to be founded on the intelligible differentia whichdistinguishes persons or things that are grouped from otherswho are left out of the group and that the differentia must haverational relation to the object sought to be achieved by thelegislation. As stated above, all the graduate and non-graduateDeputy Executive Engineers carries the same duties andresponsibilities and therefore there cannot be another classwithin the same cadre of Deputy Executive Engineer for thepurpose of promotion to the post of Executive Engineer. On thispremise itself, we are of the view that the Tribunal having heldthat note 3(ii) to Rule 3(a) of the Rules as not valid, ought tohave set aside note 3(iii) to Rule 3(a) also, as it would nullifyobject of the Rule 3(b) itself. When both the Assistant ExecutiveEngineers and Assistant Engineers belongs to two differentservices were promoted/appointed by transfer to the post ofDeputy Executive Engineers, they belong to same class, andthat while the senior most graduate Deputy Executive Engineersare available for promotion to the post of Deputy ExecutiveEngineer, the ratio vide Note-3(iii) of Rule 3 (a) of Rules, givingpreference to a junior most non-graduate Deputy ExecutiveEngineer for promotion to the cadre of Executive Engineer, inour considered view, is unjust on the face of it.

For the foregoing discussion, we hold that there cannot beany further classification among the category of DeputyExecutive Engineers, and that the note 3(iii) of the 3(a) Rulesare liable to be set aside and it is accordingly set aside holdingthat the qualification prescribed for promotion to the post ofExecutive Engineer in Annexure to Rule 3(b) of the Rulesprescribing bachelor engineering degree is mandatory.

Subject to above directions, the writ petition standsallowed. No costs.

___________

GM, J

___________

BSSR, J

Date : -31-12- 2008Kk

THE HON’BLE SRI JUSTICE GHULAM MOHAMMEDANDTHE HON’BLE SRI JUSTICE B. SESHASHAYANA REDDY

W.P.No.7086 of 2005

Date: -12-2008