Md. Usman & Ors vs State Of Andhra Pradesh & Ors on 29 April, 1971

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Supreme Court of India
Md. Usman & Ors vs State Of Andhra Pradesh & Ors on 29 April, 1971
Equivalent citations: 1971 AIR 1801, 1971 SCR 549
Author: K Hegde
Bench: Hegde, K.S.
           PETITIONER:
MD.  USMAN & ORS.

	Vs.

RESPONDENT:
STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT29/04/1971

BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
GROVER, A.N.

CITATION:
 1971 AIR 1801		  1971 SCR  549
 1971 SCC  (2) 188


ACT:
Andhra	Pradesh	 Registration  Subordinate  Service  Special
Rules,	 r.   5--U.D.Cs.  and  L.D.Cs.	put   together	 for
recruitment to post of Grade-II Sub-registrars-If  violative
of Art. 14 of Constitution.
Recruitment   on  seniority--cum--merit	  basis-Preferential
qualifications considered-Validity of recruitment.



HEADNOTE:
The validity of the recruitment of the appellants as  Grade-
II Sub-registrars as well as the vires of r. 5 of the Andhra
Pradesh Registration Subordinate Service Special Rules under
which  the recruitment was made, were challenged by some  of
the respondents.  The rule deals with the qualifications for
being recruited as Grade II sub-registrars.  It put' in	 one
class  for the purpose of recruitment, both U.D.Cs. as	well
as L.D.Cs. It was therefore contended that the rule violated
Art. 14 of the Constitution by treating unequals as  equals.
The  High Court held that the recruitment was in  accordance
with the rule, but struck down the rule as violative of Art.
14.
In appeal to this Court,
HELD:	  (1)	(a)   U.D.Cs.  and  L.D.Cs.  belong   to   a
district  wise	cadre,	that is, promotion  from  L.D.C.  to
U.D.C.	 is  made  district-wise.   Since  the	chances	  of
promotion  from	 L.D.C.	 to U.D.C. in  one  district  differ
materially  from that of another, a L.D.C. in  one  district
may  be promoted as a U.D.C. much earlier than a  L.D.C.  in
another	 district who may be his senior, more  efficient  or
may possess the same or better qualifications.	But Grade-II
sub-registrars	are  in	 a  statewise  cadre.	Though	 the
position  of a U.D.C. is superior to a L.D.C, if  the  State
treated U.D.Cs. as superior to L.D.Cs. while recruiting	 for
a  statewise cadre, it would result in great injustice to  a
large  section	of  the clerks, because	 of  the  fortuitous
circumstance of a L.D.C. in a particular district becoming a
U.D.C. in that district.  Therefore, the State was justified
in not Classifying the U.D.Cs. and L.D.Cs. separately.
(b)  Though there was an anomaly in the case of L.D.Cs.	 and
U.D.Cs. serving in the same district, the anomaly could	 not
have  been avoided.  The validity of the rule  has  to	be
judged by assessing its overall effect and not by picking up
exceptional  cases.  Further, the rule provides for giving
preference to the U.D.Cs. who had put in service of 5  years
or more. [552H-553F]
(2)  The selection in the present case was made on the basis
of  seniority-cum-merit.  A list of all the clerks,  U.D.Cs.
as  well as L.D.Cs., was prepared in the order of  seniority
as L.D.Cs. and fitness of each person was considered.  Also,
those persons who were entitled to be given preference under
the  rules were considered separately and recruited  in	 the
first instance.	 The method adopted was the most  reasonable
one and was in accordance with the rule. [553H-554B]



JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 153 of 1971.

550

Appeal from the judgment and order dated October 21, 1970 of
the Andhra Pradesh High Court in Writ Appeal No. 240 of
1968.

B. V. Subrahamanyam and G. Narayana Rao, for the
appellants.

P. Ram Reddy and P. P. Rao, for respondents Nos. 1 and 2.
M. Natesan, Venkataramhiah and K. Jayaram, for respondents
Nos. 3 to 21.

The Judgment of the Court was delivered by
Hegde, J.-The principal question that arises for decision in
this appeal by certificate is as to the vires of Rule 5 of
the Andhra Pradesh Registration Subordinate Service Special
Rules, to be hereinafter referred as “the rules”. The High
Court has struck down this rule on the ground that it is
violative of Art. 14 of the Constitution. As a result of
that conclusion, it has also quashed the recruitment of some
of the respondents made in March, 1965 for being posted as
Sub-Registrars Grade-11.

The petitioners as well as respondents No. 3 onwards in the
Writ Petition were serving as clerks, either in the upper
division or in the lower division, in the Registration and
Stamps Department including the office of the Registrar
General of Births, Deaths and Marriages and the Office of
the Registrar of the Firms. Some of the respondents had
been recruited by the Inspector General of Registration and
Stamps, Andhra Pradesh for being appointed as Sub-
Registrars. The petitioners challenged the validity of
their recruitment on various grounds, by means of a Writ
Petition under Art. 226 of the Constitution. But that peti-
tion was summarily dismissed by a single Judge of the Andhra
Pradesh High Court. Thereafter, the matter was taken up in
appeal to a Division Bench of that Court. The Division
Bench rejected all the contentions of the petitioners except
one viz. that rule 5 of the rules is ultra vires Art. 14 of
the Constitution. As a result. of that conclusion it struck
down the impugned recruitments. Only two questions were
presented before us for decision viz :

(i) whether rule 5 of the rules is ultra
vires Art. 14 of the Constitution; and

(ii) whether the recruitments made are not in
accordance with the rules.

At this stage, it may be mentioned that the High Court has
held that the impugned recruitments were made in accordance
with
551
the rules. In other words, the second question was decided
against the petitioners.

We shall first take up the question as to the vires of rule

5. The rules provide for the promotion to the posts of Sub-
Registrar as well as for recruitment to those posts. Rule 2
provides that a post of Grade-I Sub-Registrar should be
filled by promotion from Grade-11 Sub-Registrar. So far as
Grade II Sub-Registrars are concerned, they are to be
appointed either by promotion from reserve Sub-Registrars or
by “recruitment by transfer from the clerks of the
Registration and Stamps Department including the Office of
the Registrar General of Births, Deaths and Marriages and
the Office of the Registrar of the Firms.” Rule 5 deals with
qualifications for being recruited as Grade-11 Sub-
Registrars. That rule reads :

“Qualifications : -No person shall be
eligible for appointment to the category
mentioned below unless he possesses the
qualification shown.

Category and qualifications

1. Sub-Registrars, II Grade :-(i) Must be a
permanent clerk and must have served for a
period of not less than seven years on duty as
clerk in the Registration and Stamps
Department including the office of the Regi-
strar-General of Births, Deaths and Marriages
and the Office of the Registrar of Firms;

(ii) Must have passed the Registration Test;
and

(iii)(1) Must have taken at the final
examination at the end of his school or
college course, one of the following
languages, namely :–

Telugu, Hindi, Oriya, Kannada, Tamil, Urdu or
Marathi, or
(2) Must have passed the Government
Translation Test or the Second Class Language
Test-Full Test.

“(iv) Must have passed the second class
language Test-Full Test-in a language other
than that taken for S.S. L. C. or University.”
Preference shall be given to persons who, in
addition to the qualifications specified in
items (i) to (iii) possess a degree in Law of
University in the State or any other
equivalent qualification or a Pleader-ship
Certificate in the First Grade or who have put
in five years service in
552
the category of Upper Division Clerks in the
Registration Department.”

It was urged that this rule is violative Art. 14 of the
Constitution because though among the clerks there are
U.D.Cs., as well as L.D.Cs., yet all of them had been put in
one class for the purpose of recruitment. As per the
Ministerial Service Rules the U.D.Cs. had to be selected
from the L. D. Cs. after the L. D. Cs. had put in certain
number of years of service and after they had passed the
Accounts Test as well as the Registration Test. A U. D. C.
holds superior post to that of a L. D. C. His salary is
higher and his conditions of service are better than that of
a L. D. C. Hence it was urged that as rule 5 treats U. D.
Cs. as well as L. D. Cs. as equal for the purpose of
recruitment for the post of a Grade II Sub-Registrar, the
rule violates the doctrine of equality. According to the
petitioners the equality doctrine is attracted not only when
equals are treated as unequals but also where unequals are
treated as equals. It was contended on behalf of the
petitioners that a statutory provision may offend Art. 14 of
the Constitution both by finding differences where there are
none and by making no difference where there is one. The
proposition of lam( advanced on behalf of the petitioners is
unexceptionable. This Court ruled in Kunnathat Thathunni
Moopil Nair v. The State of Kerala
another(1) that when the
statute obliged every person who held land to pay tax at the
flat rate prescribed, whether or not he made any income out
of the property, or whether or not the property was capable
of yielding any income, there being no attempt at
classification in the provisions of the statute, the Statute
denied equality before law because of lack of
classification. Similar views have been expressed by this
Court in other decisions. It is not necessary to refer to
those decisions.

On the other hand it was argued on behalf of the contesting
respondents that before considering the vires of rule 5, we
must first ascertain the reason behind the rule to find out
whether in fact there is discrimination. The contesting
respondents do not ‘deny that the position of a U. D. C. is
superior to that of a L. D. C. But according to them it
became necessary for the State to pool together the U. D.
Cs. as well as the L. D. Cs. for the purpose of recruitment
in question for the following reasons:-

The Grade II Sub-Registrars are in a state-wise cadre
whereas the U. D. Cs. and L. D. Cs. belong to a district-
wise cadre. Promotion from L. D. C to U. D. C. is made
district-wise. The chances of promotion from L. D. C. to U.
D. C. in one district
(1) [1961] 3 S.C.R. 77.

553

materially differs from another district. It depends on the
number of posts available in a particular district. In one
district a L. D. C. may be promoted as a U. D. C. as soon as
he puts in a service of 5 years, whereas in another district
a L. D. C. possessing the same or better qualifications as
well as efficiency may not be promoted as a U. D. C. for 15
years or more. That being so while making recruitment to a
state-wise cadre it was not possible for the State to make
distinction between the L. D. Cs. and the U. D. Cs. The
only reasonable basis that could have been adopted was to
treat the U. D. Cs. and L. D. Cs. as one class for the
purpose of recruitment. But at the same time the rule
provides for giving preference to the U. D. Cs. who had put
in a service of 5 years or more. There is force in these
contentions though there may be some anomaly in the case of
L. D. Cs. and U. D. Cs. serving in the same district. But
that anomaly cannot be avoided. The validity of a rule has
to be judged by assessing its over-all effect and not by
picking up exceptional cases. What the court has to see is
whether the classification made is a just one taking all
aspects into consideration.

On the facts before us we are unable to agree that for the
purpose of recruitment with which we are concerned herein
the State should have classified the U. D. Cs. and L. D. Cs.
separately. If the State had treated the U. D. Cs. as being
superior to the L. D. Cs. for the purpose of that
recruitment it would have resulted in a great deal of
injustice to a large section of the clerks. The fortuitous
circumstance of an officer in a particular district becoming
a U. D. C. would have given him an undue advantage over his
seniors who might have been as efficient or even more
efficient than himself, merely because they chanced to serve
in some other district. For the reasons mentioned above, we
do not think that in the present case the State can be said
to have treated unequals as equals. The rule of equality is
intended to advance justice by avoiding discrimination. In
our opinion the High Court by overlooking the reason behind
Rule 5 came to the erroneous conclusion that the said rule
violated Art. 14 of the Constitution.

We agree with the High Court that there is no substance in
the petitioners’ contention that the impugned recruitments
were not made in accordance with Rule 5. It is clear from
the affidavit filed on behalf of the State and the Registrar
that the Registrar had considered the case of all the
qualified clerks, but the Registrar thought that the best
basis for recruitment was to prepare a list of all the
clerks, U. D. Cs. as well as L. D. Cs. arranging the names
in the order of seniority as L. D. Cs. and thereafter
consider each name and reject the unfit. In other
454
words, the selection was made on the basis of seniority-cum-
merit -the seniors among the clerks were selected subject
to suitability. Those persons who were entitled to be given
preference under the rules were considered separately and
recruited at the first instance. Only thereafter the other
recruitments were made. The rules do not prescribe that the
recruitment should be made on the basis of merit and merit
alone. Bearing in mind the fact that the recruitment with
which we are concerned in this case is a recruitment by
transfer which means recruitment from among, the ministerial
officials, the method adopted by the Registrar appears to us
to be the most reasonable one.

In the result this appeal is allowed, the order of the
Division Bench of the High Court is set aside and that of
the single judge restored. In the circumstances of the
case, we direct the parties to bear their own costs in. all
the courts.

V.P.S.

Appeal allowed..

555

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