{"id":171594,"date":"2007-05-02T00:00:00","date_gmt":"2007-05-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-sudhakar-rao-ors-vs-u-govinda-rao-ors-on-2-may-2007"},"modified":"2019-03-25T21:26:41","modified_gmt":"2019-03-25T15:56:41","slug":"p-sudhakar-rao-ors-vs-u-govinda-rao-ors-on-2-may-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-sudhakar-rao-ors-vs-u-govinda-rao-ors-on-2-may-2007","title":{"rendered":"P.Sudhakar Rao & Ors vs U.Govinda Rao & Ors on 2 May, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
P.Sudhakar Rao & Ors vs U.Govinda Rao & Ors on 2 May, 2007<\/div>\n
Author: A Mathur<\/div>\n
Bench: A.K. Mathur, P.K. Balasubramanyan<\/div>\n
           CASE NO.:\nAppeal (civil)  1712-1713 of 2002\n\nPETITIONER:\nP.Sudhakar Rao & Ors\n\nRESPONDENT:\nU.Govinda Rao & Ors\n\nDATE OF JUDGMENT: 02\/05\/2007\n\nBENCH:\nA.K. Mathur & P.K. Balasubramanyan\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
A.K. MATHUR, J.\n<\/p>\n
1.\tThese appeals are  directed against  the Full Bench decision of
\nthe High Court of Andhra Pradesh in Writ Petition Nos.5922 & 6360
\nof 1999  by which the Full Bench has set aside the order of the
\nAndhra Pradesh Administrative Tribunal at Hyderabad. Hence, the
\npresent appeals.\n<\/p>\n
2.\tShorn of detailed facts, principal question arises for our
\nconsideration is  the validity of the rule by which retrospective
\nseniority benefit was given  to the Junior Engineers by G.O.Ms. No.54
\nIrrigation (Service IV-2) dated 15.2.1983.  Relevant amendment
\nwhich is the subject matter of present controversy reads as under :\n<\/p>\n
\t\t” In exercise of the powers conferred by the
\nproviso to Article 309 of the Constitution of India,  the
\nGovernor of Andhra Pradesh hereby makes the
\nfollowing amendments to the Special Rules for the
\nAndhra Pradesh Engineering Service, issued in
\nG.O.Ms. No.285 PWD, dated 22.2.1967 and as
\nsubsequently amended from time to time.\n<\/p>\n
2.\tThe amendments hereby  made shall be deemed
\nto have come into force from the 28th February, 1972.\n<\/p>\n
\t\t\tAMENDMENT
\n\tIn the said Special Rules :\n<\/p>\n
(1)\tIn Rule 2, the entry in column 2 of the Table
\nagainst category-6 Junior Engineers, shall be lettered
\nas Clause (a) and after it is so lettered the following
\nentry shall be added namely:\n<\/p>\n
\t“(b) \tRecruitment by transfer of Supervisors of
\nthe Andhra Pradesh Engineering Subordinate
\nService who have acquired the B.E. or A.M.I.E.
\n(India) qualification and who are approved
\nprobationers in that category.\n<\/p>\n
NOTE :  The Provisions  of General Rule 6 shall not
\nappointment either by the direct recruitment or by
\ntransfer to the category of Junior Engineers”.\n<\/p>\n
2.\tIn column (2) and of the Table  under rule 4
\nagainst the category of Junior Engineers, the
\nfollowing entries shall be added at the end namely:
\nRecruitment by transfer\tMust possess B.E.\n<\/p>\n
or A.M.I.E,
\n(India) qualification
\nin Civil or
\n   \t\t\t\t\t   Mechanical Engineering.\n<\/p>\n
3.\tAfter  Note (2) below the Table under Rule 4 the
\nfollowing shall be inserted namely :\n<\/p>\n
Note (3)  A Supervisor who is appointed by transfer
\nas Junior Engineer on or after 28.2.1972 shall be
\nentitled  to count 1\/3rd of the Service rendered as
\nSupervisor before appointment as Junior Engineer,
\nsubject to a maximum of 4 years weightage for the
\npurpose of computing the service as Junior Engineer,
\nwhich will render eligible for consideration for
\npromotion as Asst. Engineer, and subject to the
\nfollowing conditions:\n<\/p>\n
\t\t(i)\tThe seniority of a Supervisor, who is
\nappointed as Junior Engineer shall be fixed in the
\ncategory of Junior Engineers with reference to the
\nnotional date arrived at after giving weightage of
\nservice aforesaid;\n<\/p>\n
\t\t(ii)\tA Supervisor who is appointed as
\nJunior Engineer shall put in a minimum service of
\none year on duty as Junior Engineer, after such
\nappointment, and a total service of five years as
\nJunior Engineer, inclusive of the period given as
\nweightage to become eligible for promotion as Asst.
\nEngineer;\n<\/p>\n
          (iii) \tNo Supervisor shall ordinarily be
\neligible for appointment as Junior Engineer, unless
\nhe has put in a minimum service of three years as
\nsupervisor;\n<\/p>\n
\t\t(iv)\tA Supervisor with less than three
\nyears of service, who is appointed as Junior
\nEngineer for any special reasons shall not be entitled
\nto any weightage of his past service as Supervisor”.\n<\/p>\n
3.\tThis litigation has a very long history and we will refer to
\nrelevant part of the history in our judgment wherever it is necessary
\nbut the core issue before us is the validity of this Rule.  This rule was
\nchallenged by the direct recruit Junior Engineers  coming from
\nvarious parts of the State before the Andhra Pradesh Administrative
\nTribunal, Hyderabad by filing various original applications. A
\npreliminary objection was raised that  the original applications were
\nnot maintainable as the Tribunal has no jurisdiction to examine this
\ncontroversy as the rule had already been up-held by this Court in
\nDevi Prasad & Ors. v. Government of Andhra Pradesh & Ors.<\/a>
\netc. [ 1980 Supp. SCC 206] and  State of Andhra Pradesh & Anr.
\nv. K.S.Muralidhar & Ors.<\/a> etc. [(1992) 2 SCC 241].  As against this, it
\nwas contended that in both these cases amendment to the rule was
\nnot in issue and what was in issue was only  the executive
\ninstructions issued prior to the amendment.  It was submitted that the
\nmatters were not decided on merits.\n<\/p>\n
4.\tThe question of   seniority and promotion in the Engineering
\nDepartment of the State of Andhra Pradesh has been dragging since
\nlast 40 years.  It was also pointed out that at the time of formation of
\nthe State in the year 1956, there was a single P.W.D. Engineering
\nDepartment. The Madras Engineering Service Rules issued in
\nG.O.Ms. No.2690 Public (Services)  dated 28.9.1953 applied to the
\nState  Services which included  the category of the post of Assistant
\nEngineer ( now called as Deputy Executive Engineer) as the initial
\ncategory. The appointment to the other higher categories in the State
\nService like Executive Engineer, Superintending Engineer and Chief
\nEngineer was being made by promotion from the  immediate lower
\ncategory. The Madras Engineering Subordinate Service Rules framed
\nin G.O.Ms. No.2732, Public (Services)  dated 30.9.1953 governed the
\nconditions of service of the subordinate Services which included the
\nposts of Junior Engineer, Supervisor, Draughtsman Grade  I etc.
\nThese Rules were continued in the State of Andhra Pradesh with
\nsuitable adaptation.  In the year 1960, four separate Engineering
\nDepartments were formed.  The Andhra Pradesh Engineering Service
\nRules, 1966 were issued on 22.6.1967 under proviso to  Article 309
\nof the Constitution of India which replaced the Madras Rules.
\nThereafter, separate Rules under proviso to Article 309 of the
\nConstitution were also framed in the State known as Subordinate
\nEngineering Service for other three Engineering Departments
\nnamely, R & B Department, Public health and Municipal Engineering
\nDepartment and Panchayat Raj Engineering Department.  In Madras
\nState, the posts of Junior Engineer and Supervisor  were both in
\nSubordinate Engineering Service and they were carrying the same
\npay scale.  If a Graduate was recruited he was described as a Junior
\nEngineer and given a higher start in the same pay scale.  A diploma
\nholder on recruitment was described as a Supervisor and was placed
\nin the same scale of pay, but  the nomenclature of both of them were
\ndifferent i.e. Engineering Graduates were called Junior Engineers and
\nDiploma holders were called Supervisors.   Both were discharging
\nsimilar duties. The eligibility criteria for recruitment by transfer to the
\npost of Assistant Engineer ( now Deputy Executive Engineer) in the
\nState Service  was  five years of service for Junior Engineers and ten
\nyears of service for Supervisors.  The Supervisors on being re-
\ndesignated as Junior Engineers in order to protect  their earlier
\nservice and for  the purpose of eligibility for appointment by transfer
\nas an Assistant Engineer, were given suitable weightage of
\nSupervisors’ service.  Subsequently, on 9.6.1971, Government of
\nAndhra Pradesh took a decision to constitute a separate category of
\nJunior Engineers distinct  from Supervisors and the posts of Junior
\nEngineers were made gazetted and they became part of the State
\nService i.e. the Junior Engineers were designated in the State
\nService whereas the Supervisors continued to be in the Subordinate
\nService.  The selection for direct recruitment for both the posts was
\nthrough the State Public Service Commission.  The State Service
\nRules were amended and the Junior Engineers were included in the
\nState  Service  as category 6 after the Assistant Engineers and
\namendment was given retrospective effect from 28.2.1972.
\nTherefore, the Junior Engineers became  the feeder category for
\nappointment by promotion as Assistant Engineers. Likewise
\namendment was  brought about in the Subordinate Service Rules
\nalso and  for appointment to the post of Assistant Engineer,
\nSupervisors and Draughtsmen were also made eligible  and that
\nJunior Engineer who has put in five years of service was made
\neligible for appointment by promotion to the post of Assistant
\nEngineer. Some representations were made by the Supervisors
\nseeking relief for promotion by transfer of Assistant Engineer.
\nTherefore, on 15.6.1972  the State Government amended the Andhra
\nPradesh Engineering Service Rules and declared that the
\namendment was to come into effect from 2.1.1968 till 29.2.1972.
\nThis was the period prior to the post of Junior Engineer being made
\ngazetted. By virtue of this amendment the Supervisors who   had
\nobtained Graduate qualification and were designated as Junior
\nEngineers prior to 28.2.1972, were to be given weightage of earlier
\nservice in the cadre of Supervisors for the purpose of eligibility for
\nappointment by transfer to the post of Assistant Engineer in the State
\nService. Thereafter, some development took place and  Article 371-D
\nof the Constitution, a special provision in the Constitution with respect
\nto the State of Andhra Pradesh  was introduced by the 32nd
\nConstitutional amendment  in 1974. Then again some Supervisors
\nmade representations with regard to giving the same benefit to the
\nJunior Engineers who had acquired Graduate qualification.
\nGovernment of Andhra Pradesh felt persuaded and issued G.O.Ms.
\nNo.451 dated 10.6.1976. The Supervisors who had acquired
\nGraduate qualification while in service should be appointed
\ntemporarily as Junior Engineers prospectively with immediate effect
\nand accordingly the Chief Engineer was directed to take necessary
\nsteps.  In consequence thereof,  other issue relating to weightage of
\nseniority was also examined by the Government and Government
\nissued an order indicating that  the Supervisors who have acquired
\nGraduate qualification may be appointed as Junior Engineers on or
\nafter 28.2.1972 subject to availability of vacancies in the cadre of
\nJunior Engineers. It was also mentioned  in the order dated 18.7.1977
\nthat the Junior Engineers will not be entitled for appointment as
\nJunior Engineers automatically from the date of acquisition of degree
\nqualification and  a supervisor who is appointed as Junior Engineer
\nwould be entitled to count one-third  of the service rendered by him
\nbefore his appointment as Junior Engineer, subject to a maximum of
\nfour years  for the purpose of computing his service as Junior
\nEngineer which would render him eligible for consideration for
\npromotion as Assistant Engineer.   It was also decided by the same
\ncommunication dated 18.7.1977 that the seniority of the Supervisors
\nfor appointment as Junior Engineers would be fixed  with reference to
\nthe notional date arrived at after giving weightage of service. It was
\nalso mentioned that the Supervisor who was appointed as Junior
\nEngineer  should put in one year of service as Junior Engineer for
\nbecoming eligible for promotion as Assistant Engineer.  It was also
\nmentioned that no Supervisor should be eligible for appointment as
\nJunior Engineer unless   he has put in three years of service as
\nSupervisors.  This was an executive instruction and the Government
\nwas moved for necessary amendment in the Andhra Pradesh
\nEngineering Service Rules.  Rules were amended and in the rule
\ndirect entry in column 2 of the table against category 6- Junior
\nEngineer shall be included as clause (a) and after this clause (b)
\nshould be inserted with recruitment  by transfer of Supervisors of
\nAndhra Pradesh   Engineering Subordinate  service who have
\nacquired B.E. or A.M.I.E.  qualification and who are approved
\nprobationer in that category. Note 3 which is more relevant reads as
\nunder :\n<\/p>\n
” NOTE (3)  A Supervisor who is appointed by
\ntransfer as Junior Engineer on or after 28.2.1972
\nshall be entitled to count 1\/3rd of the service rendered
\nas Supervisor before appointment as Junior
\nEngineer, subject to a maximum of 4 years
\nweightage for the purpose of computing  the service
\nas Junior Engineer, which will render eligible for
\nconsideration for promotion as Assistant Engineer,
\nand subject to the following conditions :-\n<\/p>\n
\t\t(i)\tThe seniority of a Supervisor who is
\nappointed as  Junior Engineer  shall be fixed in the
\ncategory of Junior Engineers with reference to the
\nnotional date arrived at after  giving weightage of
\nservice aforesaid;\n<\/p>\n
\t\t(ii)\tA Supervisor who is appointed as
\nJunior Engineer shall put in a minimum service of
\none year on duty as Junior Engineer, after such
\nappointment and a total service of five years as
\nJunior Engineer, inclusive of the period given as
\nweightage to become eligible for promotion as  Asst.
\nEngineer;\n<\/p>\n
\t\t(iii)\tNo Supervisor shall ordinarily be
\neligible for appointment as Junior Engineer, unless
\nhe has put in a minimum service of three years as
\nSupervisor;\n<\/p>\n
\t\t(iv) \tA Supervisor with less than three
\nyears of service, who is appointed as Junior
\nEngineer  for any special reasons shall not be
\nentitled to any weightage of his past service as
\nSupervisor.”\n<\/p>\n
5.\tBy virtue of this amendment the Supervisors who had done
\ngraduation during his service career and also appointed as Junior
\nEngineer was eligible for promotion  for the post of Assistant
\nEngineer provided he fulfilled all the necessary criteria as quoted
\nabove. Thereafter, in this background, on 15.2.1983 Government of
\nAndhra Pradesh brought  the amendment  which is the subject matter
\nof challenge in these appeals.\n<\/p>\n
6.\tAggrieved against this notification, direct recruit Engineers filed
\noriginal applications  before the Andhra Pradesh Administrative
\nTribunal.   The Tribunal after considering the matter concluded that
\nthe  Rules  framed under G.O.Ms. No.54 Irrigation (Service IV-2)
\nDepartment dated 15.2.1983 giving retrospective effect from 1972,
\nthe introduction of the note under Category-6 in Rule 2 by excluding
\nthe applicability of General Rule 6; introduction of Note 3 under Rule
\n4 providing for weightage in seniority in the cadre of Junior Engineers
\nfor those appointed by transfer from the post of Supervisor and the
\nexclusion of Junior Engineers appointed by transfer from Supervisors
\nfrom the requirement of being put on probation under special rule-6
\nwere void and they were quashed. Certain other directions were
\ngiven by the Tribunal with which we are not concerned.  Aggrieved
\nagainst this order of the Tribunal,  Special Leave Petitions were filed
\nbefore this Court  by S.Ramallaian and others which came to be
\nregistered as Civil Appeal No.387 of 1997 and was disposed of by
\nthis Court by  order dated 15.1.1997.  This Court after  considering
\nthe matter, observed that  preliminary objection was raised  before
\nthe Tribunal with regard to the maintainability of the proceedings on
\nthe ground that  the Tribunal had no jurisdiction to examine the
\ncontroversy as it had already been settled by this Court in Devi
\nPrasad  and K.S.Muralidhar (supra), though the Tribunal held that
\npreliminary objection was without any substance and overruled the
\nsame on the ground that in Devi Prasad and K.S.Muralidhar (supra)
\nthe controversy was that both the posts of Junior Engineer and
\nSupervisor were in subordinate cadre and were governed by the
\nsame rules for the period prior to 1972 and that after 1972 the post of
\nJunior Engineer was made a gazetted post in the State service.  So
\nfar as Muralidhar’s case was concerned, the controversy about the
\neffect of executive instructions in G.O.Ms. No.451 of 1976 and
\nG.O.Ms. No.559 of 1977 were considered but neither the amendment
\nto the statutory rules providing for direct  recruitment nor the effect  of
\nthe Presidential order  was brought to the notice of this Court by the
\nState Government. Therefore, for this reason  the Tribunal held that
\nboth the aforesaid decisions did not examine  the validity of the
\nRules. The Tribunal also took into  consideration the decision of this
\nCourt in Venkata Reddy’s case (AIR 1993 SC 2306) and
\nNarayanan’s case (AIR 1991 SC 55).  It was also brought to the
\nnotice of this Court that the decision given by the Tribunal on
\n1.8.1983 concluded this question where the validity of the rule was
\nupheld and that judgment was binding on the Principal  Bench of the
\nTribunal  which disposed of the case by the judgment dated
\n15.6.1995.  It was submitted that  judgment dated 1.8.1983 was not
\nconsidered by the Full Bench of the Tribunal and the previous
\njudgment of the Bench ought to have been considered by the
\nsubsequent Bench. This Court observed that  conflict in the decision
\nby two Benches is apparent therefore, this Court quashed the
\njudgment dated 15.6.1995 and remitted the matter back to the
\nTribunal to decide the question of validity of the impugned rules
\nkeeping in view the earlier judgment of the Tribunal dated 1.8.1983.
\nOn being remanded by this Court, the matter again went to the
\nTribunal and the Full Bench of the Tribunal by its order dated
\n11.12.1998 examined the validity of the aforesaid rule and affirmed
\nthe validity of the rule and  observed as follows:\n<\/p>\n
\t\t”  (1)\tThe Junior Engineers on acquisition
\nof Degree qualification in Engineering would be
\nentitled for weightage of those appointments are
\nmade or deemed to have been made under  the rules
\nproviding for such appointments and weightage with
\nreference to their dates of appointment ( not with
\nreference to acquisition of degree qualification)
\nagainst a vacancy in the cadre of Junior Engineer.
\n\t\t(2) \tThe Government is advised to
\nconsider fixing ratio between direct recruits and those
\nappointees by appointment by transfer  to the post of
\nJunior Engineer ( now Assistant Executive Engineer)
\nto the post of Assistant Engineer ( now Deputy
\nExecutive Engineer).”\n<\/p>\n
7.\tAggrieved against this order dated 11.12.1998 passed by the
\nTribunal,  writ petitions were filed before the High Court of Andhra
\nPradesh and the Full Bench of the High Court of Andhra Pradesh
\nreversed the judgment of the Tribunal dated 11.12.1998 by its order
\ndated 23.11.2001 and ultimately the Full Bench concluded as follows:\n<\/p>\n
\t\t” We are, therefore, of the opinion that the
\nimpugned rule to the extent challenged is violative  of
\nArticles 14 and 16 of the  Constitution of India in so
\nfar as vested right of the junior engineers who are
\nsenior to them is sought to be taken away”\n<\/p>\n
8.\tIt was also observed that  the weightage can be given only from
\nthe date of the appointment of the Junior Engineers. The net result of
\nthis decision of the Full Bench of the High Court was that the
\nretrospective effect of the rule would  result in hardship to direct
\nrecruit but  the rule can be applied with prospective effect. Hence,
\naggrieved against this judgment supervisors have filed present
\nappeals.\n<\/p>\n
9.\t\tWe have heard learned counsel for the parties and
\nperused the records. The principal submission of learned senior
\ncounsel for the appellants was that after decision given in the case of
\nDevi Prasad and K.S.Muralidhar (supra) it was not proper for the
\nFull Bench of the High Court to have reversed the judgment of the
\nFull Bench of the Tribunal. Learned counsel submitted that in view of
\nthe clear decisions of this Court cited above,  the question of validity
\nof the rule is beyond the challenge  and the Full Bench of the High
\nCourt has not properly considered  the  decisions in Devi Prasad’s
\ncase and K.S.Muralidhar’s case (supra), which has caused
\nmiscarriage of justice.  Therefore, in  this background, we shall
\nexamine the validity of the aforesaid Rules and various decisions  of
\nthis Court to see whether  the validity of the Rules is no more res
\nintegra or not.  In this light we would first consider the first decision in
\npoint of time i.e. Devi Prasad’s case (supra).\n<\/p>\n
10.\t\tThe controversy whether weightage can be given to
\nJunior Engineers who have acquired  graduate qualification is ragging
\nright from 1967 which led to filing of writ petition and ultimately
\nreached to this Court in the case of Devi Prasad & Ors. (supra).  In
\nDevi Prasad’s case, same question came up for consideration in
\nrelation to A.P. Engineering Subordinate Service Rules, for post of
\nSupervisor.  In that case diploma holders were recruited as
\nsupervisors and degree holders were recruited as Junior Engineers.
\nThey were discharging substantially same functions.  However, for
\npromotion to the post of Assistant Engineer, a degree holder who put
\nin five years’ service was eligible while for diploma holders, minimum
\nservice of 10 years was prescribed.  Thereafter, the Government vide
\nGOMs No.893 laid down that if a Supervisor acquires a degree while
\nin service and renders service as Supervisor, he would be given
\nweightage as Junior Engineer for half the period of his service as
\nSupervisor subject to a maximum of four years for promotion to the
\npost of Asstt. Engineer. This was challenged on the envil of Articles
\n14 and 16.  The relevant note appended to Rule  reads as under :
\n“Note 2Supervisors who acquire, while in service,
\nB.E.M.I.E. (India) qualification shall be entitled to
\ncount 50 per cent of their service rendered as
\nSupervisor prior to acquisition of such qualification,
\nsubject to a maximum limit of 4 years as if it had
\nbeen in the post of Junior Engineers for the purpose
\nof consideration for appointment by transfer to the
\npost of Assistant Engineer from Junior Engineers
\nand subject to the following conditions :\n<\/p>\n
(1) \tThey should render a minimum service of one
\nyear after acquisition of B.E. or A.M.I.E.\n<\/p>\n
(India) qualification:\n<\/p>\n
(2) \tThey should be considered to have been
\nplaced below the list of the Junior Engineers
\nof the year after giving weightage as indicated
\nabove.\n<\/p>\n
(3) \tThey should put in a total service of 5 years
\nas Junior Engineer inclusive of the period
\ngiven as weightage.\n<\/p>\n
(4) \tThe benefit of weightage given above shall be
\ngiven effect for the purpose of all selections
\nthat are made by Public Service Commission
\npertaining to the years from 2nd January,
\n1968 onwards till 28th February, 1972.”\n<\/p>\n
\tIn that context, Their Lordships held :\n<\/p>\n
“To decide what weightage should be given as between
\ntwo categories of Government servants rendering
\nsomewhat similar kind of service. In the present case,
\nthere may be truth in the case of the appellants that they
\nare hit hard because of the new rule. Dr. Chitale tried to
\nconvince us of the hardship that his client sustain
\nconsequent on this rule and weightage conferred thereby.
\nBut more hardship without anything arbitrary in the rule
\ndoes not call for judicial intervention, especially when it
\nflows out of a policy which is not basically illegal.
\nHowever, government must be interested in keeping its
\nservants specially in strategic areas like engineering
\ncontended and efficient. In so producing contentment, it
\nmay have to evolve a flexible policy which will not strike a
\ngroup as inflicting hardship on them.”\n<\/p>\n
\tIt was further held :\n<\/p>\n
“In the present case the Supervisors and the Junior
\nEngineers were discharging substantially similar
\nfunctions; the Supervisors were eligible to get the special
\nweightage only if they acquired an engineering degree
\nand the weightage to be given was only for half of the
\nperiod they had served as Supervisors.  In spite of the
\ntwo discharging substantially similar functions there was
\ninequality of opportunity in matters of promotion of the
\nSupervisors vis-`-vis the Junior Engineers and, therefore,
\nthe government tried to mitigate the hardship by framing
\nthe weightage rule.  Thus, in the light of the wide
\nexperience and basic qualification of the Supervisors,
\nthere is nothing capricious in giving them the limited
\nbenefit or weightage under the new rule.  The weigtage
\nrule is not, therefore, violative of Articles 14 and 16.”\n<\/p>\n
11.\t\tValidity of this Rule was upheld by this Court.  Their
\nLordships observed  “in the light of their wide experience and basic
\nqualification, we are unable to say that there is anything capricious in
\ngiving them the limited benefit or weightage under the new rule.”
\nTherefore, the controversy of giving them the benefit of the service as
\na supervisor to the extent of 50 per cent after obtaining degree and
\nmaximum limit of four years was upheld way back in 1980 by this
\nCourt.\n<\/p>\n
12.\t\tSimilarly, again this matter came up before this Court in
\nthe case of K.S. Murlidhar (supra) and also a weightage of four years
\nin respect of upgraded Junior Engineer was held to be reckoned from
\nthe date of appointment and not from the date of their acquiring the
\ndegree qualification and on the basis of that, notional date has to be
\narrived at for fixation of seniority. The case of Devi Prasad (supra)
\nwas reiterated and reaffirmed.  Though a question with regard to
\nSpecial Qualifying Test was also there but we are not concerned with
\nthat.  There is also a GOMs No.451dated June 15, 1976 came up for
\nconsideration.  This was with regard to appointment of Supervisors
\nwho acquired graduate qualification while in service.  In that context,
\nthe Government laid down a policy which will speak for itself.  The
\nGovernment Order reads as under :\n<\/p>\n
“GOVERNMENT OF ANDHRA PRADESH
\nABSTRACT
\nEstablishmentIrrigation and Power Department
\nAppointment of Supervisors who have acquired Graduate
\nQualification as Junior EngineersOrdersIssued.
\nIrrigation and Power (Ser.II) Department G.O. Ms.
\nNo. 451 Dated: 10-6-1976
\nORDER:\n<\/p>\n
Consequent on the declaration of the posts of Junior
\nEngineers as Gazetted with effect from 28.2.1972, the
\nupgradation of Supervisors who acquired Graduate
\nQualification while in service, as Junior Engineers,
\nceased. Since then representations have been made to
\nGovernment by several Associations that the benefit of
\nupgradation should be extended also to Supervisors who
\nacquired the Graduate qualification on or after 28.2.1972.\n<\/p>\n
2. On a reconsideration of the matter, the Government
\nare of the view that some consideration should be shown
\nto the Supervisors who have acquired the Graduate
\nqualification while in service. Accordingly the Government
\nhave decided that the Supervisors in P.W. (Irrigation)
\nDepartment who have acquired Graduate qualification
\nwhile in service should be appointed temporarily as Junior
\nEngineers (Prospectively) with immediate effect.
\nThe Chief Engineer (General) is requested to take action
\naccordingly, Orders regarding other consequential
\nmatters will issue separately.\n<\/p>\n
(BY ORDER AND IN THE NAME OF THE GOVERNOR
\nOF A.P.)
\nM.GOPALAKRISHNAN,
\nSECRETARY TO GOVERNMENT”\n<\/p>\n
13.\t\tIn this GOMs, it is proposed to extend the benefit of
\nupgradation to Supervisors who acquired the graduate qualification
\non or after February 28, 1972 but the second para makes it clear that
\nthey would be appointed temporarily as Junior Engineers and that too
\nprospectively.  The GOM No.559 dated July 18, 1977 was issued by
\nthe Government which reads as under :\n<\/p>\n
“GOVERNMENT OF ANDHRA PRADESH
\nABSTRACT
\nESTABLISHMENT-Irrigation & Power Department
\nAppointment by transfer of Supervisors who have
\nacquired Graduate qualification from 28.2.1972 onwards
\nas Junior EngineersFurther ordersIssued.
\nIRRIGATION & POWER (SERVICE – III) DEPARTMENT
\nG.O. Ms. No. 559 Dated 18th July, 1977
\nRead the following:-\n<\/p>\n
G.O. Ms. No. 451, Irrigation & Power (Ser.III) Department,
\ndated 10.6.1976.\n<\/p>\n
ORDER:\n<\/p>\n
It was ordered in the G.O., cited that the Supervisors in
\nthe Public , Works (Irrigation) Department, should be
\nappointed temporarily as Junior Engineers (Prospectively)
\nwith immediate effect. It was also indicated therein that
\norders regarding other consequential matters would issue
\nseparately.\n<\/p>\n
2. Accordingly, matters relating to weightage, seniority,
\netc., have been examined by the Government, and the
\nfollowing orders are issued:-\n<\/p>\n
(i) \tSupervisors who acquire Graduate qualification may
\nbe appointed as Junior Engineers on or after
\n28.2.1972, subject to the availability of vacancies in
\nthe cadre of Junior Engineers.\n<\/p>\n
They will not be entitled for appointment as
\nJunior Engineers automatically from the date of
\nacquisition of degree qualification;\n<\/p>\n
(ii) \tA Supervisor, who is appointed as Junior Engineer,
\nshall be entitled to count l\/3rd of the service
\nrendered by him as Supervisor, before his
\nappointment as Junior Engineer, subject to a
\nmaximum of four years, for the purpose of
\ncomputing the service as Junior Engineer, which will
\nrender him eligible for consideration for promotion
\nas Assistant Engineer.\n<\/p>\n
(iii) \tThe seniority of the Supervisors, who are appointed
\nas Junior Engineers, shall be fixed with reference to
\nthe notional date arrived at after giving weightage of
\nservice;\n<\/p>\n
(iv) \tA Supervisor, who is appointed as Junior Engineer,
\nshall put in a minimum service of one year as Junior
\nEngineer to become eligible for promotion as
\nAssistant Engineer;\n<\/p>\n
(v) \tNo Supervisor shall ordinarily be eligible for
\nappointment as Junior Engineer unless he has put
\nin a minimum service of three years as Supervisors.
\nA supervisor with less than three years of service,
\nwho is appointed as Junior Engineer for any special
\nreason, shall not be entitled to any weightage for his
\npast service.\n<\/p>\n
3. Necessary amendment to the Special Rules for the
\nAndhra Pradesh Engineering Service will be issued
\nseparately. The Transport, Roads & Buildings\/Panchayati
\nRaj\/Housing, Municipal Administration & Urban
\nDevelopment Department will issue amendments to the
\nSpecial Rules with which they are concerned in
\naccordance with the above decisions in consultation with
\nthe Andhra Pradesh Public Service Commission.\n<\/p>\n
4. The cadre strength of Junior Engineers was last fixed
\nin G.O.Ms. No. 240, Public Works (VI) Department, dated
\n28.2.1972. Since then a large number of posts of Junior
\nEngineers\/Supervisors have been sanctioned by
\nGovernment. The Chief Engineer (General) is requested
\nto submit proposals for suitably enhancing the strength of
\nthe two orders.\n<\/p>\n
(BY ORDER AND IN THE NAME OF THE GOVERNOR
\nOF A.P.)
\nM.GOPALAKRISHNAN,
\nSECRETARY TO GOVERNMENT.”\n<\/p>\n
14.\t\tThis order came up for consideration in Murlidhar’s case.
\nTheir Lordships, after putting the Government Orders in chronological
\norder, held that the effect would be that those Supervisors  who
\nacquired graduate qualification while in service, would be entitled to
\nthe weightage of four years of service for future  appointment.    It
\nwas clarified that GOMs does not anywhere indicate that the
\nweightage should be from the date of acquiring the degree
\nqualification.  Their Lordships observed that it is only after acquiring
\nsuch degree qualification that a Supervisor is appointed as Junior
\nEngineer and having regard to the service rendered by him the
\nGovernment as a policy decided to give weightage of four years for
\nthe purpose of considering the eligibility for promotion to the post of
\nAssistant Engineer.  It was contended on behalf of the direct recruits
\nthat  giving benefit of past service to  Junior Engineers retrospectively
\nprior to their date of  appointments would be  detriment to their
\ninterest and  would be  arbitrary.  This Court held “In this context the
\nTribunal has rightly pointed out that under Rule 23-A of the A.P. State
\nand Subordinate Service Rules, 1962, if a person having been
\nappointed temporarily under Rule 10 to a post borne on the cadre is
\nsubsequently appointed in the service in accordance with the Rules
\nhe shall commence his probation from such subsequent date or the
\nearlier date as the appointing authority may determine.  We agree
\nwith the Tribunal that there is no bar to the retrospective
\nregularisation of the service of the direct Junior Engineers.” This
\nCourt reaffirmed the ratio of  Devi prasad’s judgment (supra).  “In
\nDevi Prasad’s v. Government of A.P. [1980 Supp. SCC 206] G.O.Ms.
\nNo.893 referred to above was questioned on the ground of
\nunreasonableness in the matter of giving weightage to the upgraded
\nsupervisors.  This Court held that in the light of their experience there
\nis nothing unreasonable in giving them limited benefit or weightage.”
\nTheir Lordships quoted a passage from Devi Prasad’s Case (supra).
\nTheir Lordships in para 19 summed up the ratio.  It reads as under :
\n“Having given our careful consideration particularly to the
\nfact that this litigation has been pending for the last so
\nmany years, about two decades. We feel that it is high
\ntime a finality has to be reached by resolving the
\ncontroversies and in this context we are of the view that
\nthe approval of the Public Service Commission in respect
\nof these appointments need not be sought, if the
\nGovernment has not already obtained the approval of the
\nPublic Service Commission. To sum up, our conclusions
\nare as under:\n<\/p>\n
(i) The weightage of four years in respect of upgraded
\nJunior Engineers as provided in G.O. Ms. No. 559 has to
\nbe reckoned from the date of appointment and not the
\ndate of their acquiring the degree qualification;\n<\/p>\n
(ii) On the basis of that notional date, their inter-se
\nseniority has to be fixed;\n<\/p>\n
(iii) The regularisation of the degree-holder Junior
\nEngineers who passed the SQT by giving retrospective
\neffect cannot be held to be illegal, and their seniority
\namong themselves shall be subject to the order of ranking
\ngiven by the Public Service Commission on the basis of
\nthe SQT;\n<\/p>\n
(iv) The Government shall prepare a common seniority list
\nof the degree-holders Junior Engineers and the upgraded
\nJunior Engineers on the above lines and that list shall be
\nthe basis for all the subsequent promotions. Promotions,
\nif any, already given shall be reviewed and readjusted in
\naccordance with the said seniority list; and\n<\/p>\n
(v) The approval of the Public Service Commission in
\nrespect of these appointments and their seniority thus
\nfixed need not be sought at this distance of time.”\n<\/p>\n
15.\t\tTherefore, the question of giving weightage to the
\nSupervisors vis-`-vis the direct recruits were again reiterated and
\nreaffirmed in this case with reference to Devi Prasad’s case.  So far
\nas these two decisions are concerned, the principle of giving
\nweightage of the service of graduate Supervisors as Junior Engineers
\nhas been upheld by this Court.   In view of  ratio laid down in above
\ntwo decisions of this Court, the  validity of Rule stands  affirmed.   It is
\ntrue that prior to aforesaid amendement those were executive
\ninstructions, those executive instructions were incorporated by
\namendment in Rules under proviso to  Article 309 of the Constitution
\nof India.\n<\/p>\n
16.\t\tTherefore, the validity of these Rules  were challenged in
\nthis third round of litigation. But  difficulty arose  when a contrary view
\nwas taken by this Court in the case of K. Naryanan and Others v.
\nState of Karnataka & Ors. [1994 Supp (1) SCC 44].  In this case, an
\nalmost similar rule came up for consideration and here also in the
\nState of Karnataka, a retrospective benefit was given to Supervisors
\non obtaining graduation degree. Their Lordships held that
\nretrospectivity had no nexus with arrangements made by the
\nGovernment to facilitate the acquisition of such qualification.
\nTherefore, Rule 1(2) providing a retrospective operation from January
\n1, 1976 of the Karnataka Public Works Engineering Department
\nService (Recruitment) (Amendment) Rules, 1985 were struck down.
\nTheir Lordships referred to both decisions of Devi Prasad (supra) and
\nMurlidhar (supra) and observed that though in neighbouring State of
\nAndhra Pradesh in Devi Prasad’s case a weightage has been upheld,
\nTheir Lordships observed “It was upheld by this Court in Devi
\nPrasad’s case as the Court did not find that the rule giving weightage
\nfor having served as Junior Engineer was unreasonable or shocking.”
\nSimilarly, it was further observed “in Devi Prasad, this Court
\ndistinguished Desai case where period prior to appointment counted
\nfor determining seniority was not approved by this Court as the
\ndiploma holders in Andhra Pradesh were granted benefits under the
\nrule.”  Then Their Lordships further observed “Devi Prasad’s  case
\nwas upheld by this Court because it was found, ‘as reasonable and in
\nthe circumstances fair’.  The dispute was between non-graduate
\ndiploma holders working as supervisors and graduates working as
\nJunior Engineers.  Since the Court found that there was functional
\nparity between supervisors and Junior Engineers the rule framed by
\nthe Government giving weightage of four years to supervisors to
\nmake them eligible for appointment as Assistant Engineer was not
\ninvalid.”  Similarly, while referring Murlidhar’s case Their Lordships
\nobserved “In State of A.P. v. K.S. Murlihdhar, the temporary
\nsupervisor who had succeeded before this Court in Devi Prasad’s
\ncase claimed seniority from the date of acquiring academic
\nqualification.  It was repelled and it was held that it could be from the
\ndate of appointment only.”  Lastly in Para 8, Their Lordships further
\nrecorded “so far as weightage is concerned such provision has been
\nupheld by this Court in Devi Prasad’s case.    Even the appellants
\ncandidly stated that they were not against weightage.”  Therefore,
\nafter reviewing both these decisions Their Lordships did not comment
\nadversely and distinguished  both these cases by observing that
\nthere was functional parity between Supervisors and Junior
\nEngineers in Andhra Pradesh. It was  observed by  the Full Bench of
\nthe High Court  that there is contradiction between the two decisions
\nand it needs to be clarified.   We fully agree with the observations
\nmade by the High Court that  there is apparent contradiction between
\nthe two decisions given in  K.Narayanan’s case and Devi Prasad and
\nMurlidhar’s case. The matter does not end here. The matter is further
\nconfounded by another decision given in G.S.Venkata Reddy & Ors.
\netc. etc. v. Government of A.P. [AIR 1993 SC 2306]. In this case, the
\nvalidity of the Rules of 1983 were not directly in question but in
\nparagraphs 11 & 12 of the judgment while dealing with the question
\nwhether the Supervisors upgraded as Junior Engineers can claim
\nseniority over the temporary employees on the plea that they fall
\nwithin  the expression ‘last regular appointment’, their Lordships gave
\nhistoric background of the designation of Supervisors  as Junior
\nEngineers on graduation and the diploma holders Supervisors and in
\nthat context their Lordships observed as follows :\n<\/p>\n
“11. \tThat takes us to the question whether the
\nSupervisors upgraded as Junior Engineers can claim
\nseniority over the temporary employees on the plea
\nthat they fall within the expression ‘last regular
\nappointment’.  We have already pointed out the
\nhistorical back-ground in regard to the  appointment
\nof supervisors and their designation as Junior
\nEngineers on graduation.   The entry qualifications
\nfor Supervisors and those of the Junior Engineers
\nwere  undoubtedly different.  While for Junior
\nEngineers the minimum educational requirement was
\na Graduate in Engineering, a Supervisor need not be
\na graduate.  The pay scale of the Supervisors was
\nadmittedly slightly below  that of the junior Engineers.
\nThey, therefore,  belonged to  separate cadres.
\nEven  though both the Supervisors and  Junior
\nEngineers were selected through the State Public
\nService Commission,  considerations for selection
\nmay be  different.   A Supervisor was redesignated
\nas a Junior  Engineer on his acquiring a degree in
\nEngineering, subject to availability of posts.   Such
\nupgraded  Junior Engineers could not claim
\nweightage of service as Supervisors for counting
\ntheir experience as Junior Engineers for further
\npromotion.  In SLP) No. 12 of  1975 decided on
\nFebruary 24, 1975 this Court clarified;\n<\/p>\n
\t\t“However,   having studied  the rules carefully
\nand in the light of a decision of this Court  in State of
\nGujarat v. C.G. Desai,<\/a>  (1974) 1 SCC 188; (AIR 1974
\nSC 246)  we are satisfied that the petitioner who is a
\ndegree holder must qualify under Rule 6 by being a
\njunior Engineer of five years’ experience.  He cannot,
\nwhen there is a shortfall in his period, make up by
\nattracting his service as Supervisor.”\n<\/p>\n
\tThe averment that a common seniority list of
\nSupervisors and Junior Engineers  was maintained
\nhas been disputed and there is no finding of fact
\nrecorded by the Tribunal in support thereof.   It is,
\nhowever,  not in dispute that Supervisors as well as
\nJunior Engineers were non-gazetted till the issuance
\nof the orders dated June 7, 1976   made effective
\nfrom February 28,  1972.  After the said orders
\nSupervisors who acquired a degree after the cut-off
\ndate, i.e. February 28, 1972,  could aspire to be
\ndesignated Junior Engineers (Gazetted)  only by the
\nmode of transfer in view of the amendment in the
\nrules by GOMs No. 428 dated March 30, 1979.  The
\nnote at the  foot of the said GOMs is of relevance.
\nBy virtue thereof a Supervisor appointed Junior
\nEngineer by transfer on or  after February 28,  1972
\nbecame entitled to count 1\/3rd of his service as
\nSupervisor subject to a maximum of 4 years,  for
\ncomputing the service as Junior Engineer for further
\npromotion as Assistant Engineer.  This was however
\nsubject to the  condition that  he should have
\ncompleted at least one year’s service as Junior
\nEngineer to  become eligible for promotion to the
\nsaid post of Assistant Engineer.  But no such
\nweightage  was to be allowed  to a Supervisor who
\nhad not completed three years’ service as
\nSupervisor prior to becoming a Junior Engineer.
\nThe benefit of weightage is restricted to a  Supervisor
\nwho has been appointed a Junior Engineer and who
\nseeks further promotion as an Assistant Engineer.”\n<\/p>\n
17.\tHence, we sum up the matter and frame the  following question
\nfor determination for larger bench.\n<\/p>\n
\t“Whether the decision given in the cases of  Devi Prasad’s v.
\nGovernment of A.P. [1980 Supp. SCC 206] &  State of Andhra
\nPradesh & Anr. v. K.S.Muralidhar & Ors.<\/a> etc. [(1992) 2 SCC 241]  laid
\ndown the correct law or the decision given in the cases of
\nG.S.Venkata Reddy & Ors. etc. etc. v. Government of A.P. [AIR 1993
\nSC 2306], K. Naryanan and Others v. State of Karnataka & Ors.
\n[1994 Supp (1) SCC 44] & State of Gujarat v. C.G. Desai,<\/a>  (1974) 1
\nSCC 188 laid down the correct proposition of law?\n<\/p>\n
18.\t\tTherefore, in the facts and circumstances of the case, we
\nrefer these matters to a larger Bench.  The Registry is directed to
\nplace these matters before the Hon’ble the Chief Justice of India for
\nconstitution of larger Bench so that the controversy could be finally
\nput to rest.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India P.Sudhakar Rao & Ors vs U.Govinda Rao & Ors on 2 May, 2007 Author: A Mathur Bench: A.K. Mathur, P.K. Balasubramanyan CASE NO.: Appeal (civil) 1712-1713 of 2002 PETITIONER: P.Sudhakar Rao & Ors RESPONDENT: U.Govinda Rao & Ors DATE OF JUDGMENT: 02\/05\/2007 BENCH: A.K. Mathur & P.K. Balasubramanyan JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-171594","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nP.Sudhakar Rao & Ors vs U.Govinda Rao & Ors on 2 May, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/p-sudhakar-rao-ors-vs-u-govinda-rao-ors-on-2-may-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P.Sudhakar Rao & Ors vs U.Govinda Rao & Ors on 2 May, 2007 - 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