B. Venkata Reddy & Ors Vs. State of
Andhra Pradesh & Ors [1983] INSC 91 (8 August 1983)
VARADARAJAN, A. (J) VARADARAJAN, A. (J)
CHANDRACHUD, Y.V. ((CJ) SEN, AMARENDRA NATH (J)
CITATION: 1983 AIR 1108 1983 SCR (3) 545 1984
SCC (1) 645 1983 SCALE (2)241
ACT:
(Andhra Pradesh) Adhoc Rules, 1973 framed in
G.O.Ms.
939, Education dated 19-9-1973-Interpretation
of-Rule 13(1)- Inartistically worded-must be read with Rule 3(1) & (2)
otherwise this rule leads to disharmony.
(Andhra Pradesh) Adhoc Rules, 1974 framed In
G.O.Ms. 502, Education dated 19-6-1974, Rule 6-Validity of.
Andhra Pradesh State and Subordinate Services
Rules- Rule 33(c)-Scope of.
HEADNOTE:
Pursuant to the policy decision taken by the
Andhra Pradesh Government in 1964 that the secondary school duration should be
10 years instead of 11 years and it should be followed by a two years'
intermediate course, the Government decided in G.O.Ms. 1920, Education, dated
25.10.1968 that in the existing colleges the two years' intermediate course
should be introduced and laid down in G.O.Ms. 2063, Education, dated 25.8.69
the staff pattern and pay scales of staff m Junior Colleges started for the two
years' intermediate course. In G.O.Ms. 2186, Education, dated 17.9.1969 the
Government issued instructions regarding the absorption of Post Graduate
teachers in Junior Colleges on the basis of the Post-Graduate degree and the
number of years of service rendered by them. It was stated in that G.O. that
all the existing Post Graduates who will be absorbed as Junior Lecturers in
Junior Colleges will be appointed temporarily as Junior Lecturers pending
framing of adhoc rules in due course. The Government ordered in G.O. Ms, 1147,
Education, dated 4.6.1970 that in the common seniority list first rank should
be given only to those who have secured first and second class Post Graduate
degree. On 19.9.1973 the Government framed Adhoc Rules, 1973 with retrospective
effect from 1.8.1969 for the temporary post of Junior Lecturers in Junior
Colleges. Rule 13 of the Adhoc Rules, 1973 says that seniority of Post Graduate
Assistants appointed as Junior Lecturers shall be a determined with reference
to the dates of their actual appointment as Post Graduate Assistants. Rule 3
states that post-graduates with first or second class degrees are to be given
preference over Post-Graduates holding third class degrees. On 19.6.1974 the
Government framed Adhoc Rules, 1974 for the temporary posts of principals of
Junior Colleges with retrospective effect from 1.8.1969. Rule 6 of the Adhoc Rules,
1974 prescribes first or second class Post-Graduate degree for promotion of
Junior Lecturers to the posts of Principals of Junior Colleges. Rule 8 of the
Adhoc Rules 1974 says that a person who held the post of Principal of a Junior
College immediately before 546 the issue of these Rules shall be continued as
Principal and given option either A to continue in the post of Principal or to
revert to his original post.
The appellants in Civil Appeals 1652-1659 of
1978 who were working as Post-Graduate Assistants and were first or second
class Post-Graduate degree holders were appointed as Junior Lecturers in 1969.
Soon after the Adhoc Rules, 1973 were framed the second respondent, Joint
Director of Higher Education, prepared a subjectwise seniority list in 1974 and
on the basis of their seniority in that seniority list all the appellants
except one were promoted as Principals of different Junior Colleges. The first
respondent State, under the directions of the High Court in a separate
proceeding to prepare the seniority list as per Rule 13(1) of the Adhoc Rules,
1973, prepared a revised seniority list in 1976 in which respondents 3 to 8,
who were third class Post Graduate degree holders and were appointed as Junior
Lecturers in 1970 and 1975 were placed as seniors to the appellants. The
appellants as petitioners filed petitions in the Administrative Tribunal for
quashing the revised seniority list of 1976 and restoring the earlier seniority
list of 1974 or in the alternative for declaring that Rule 13(1) of the Adhoc
Rules, 1973 is violative of Articles 14 and 16 of the Constitution. The
petitioners contended that under the Adhoc Rules Post-Graduate Assistants with
first and second class Post Graduate degrees should be treated as one group and
as senior to Post Graduate Assistants with third class Post-Graduate degrees
The Tribunal held that the seniority list of 1976 framed as per Rule 13(1) of
the Adhoc Rules, 1973 having precedence over the earlier executive instruction
is valid and as the petitioners and respondents 3 to 8 belonged to the same
category of Post-Graduate Assistants, there is no question of violation of
Articles I 1 and 16 of the Constitution.
The appellants in Civil Appeal 415 of 1979
who were working as School Assistants in Higher Secondary Schools and were
third class Post Graduates were appointed as Junior Lecturers in Junior
Colleges in terms of Rule 3 of t the Adhoc Rules, 1973. Pending the framing of
Adhoc Rules for the temporary posts of Principals of Junior Colleges, the
second respondent, Director of Public Instructions, issued proceedings dated
14.3.1974 promoting under Rule 10(a) (i) of the State and Subordinate Services
Rules seven third class Post Graduate Junior Lecturers as Principals of Junior
Colleges. The appellants as petitioners challenged in the Administrative
Tribunal these Adhoc promotions. They also challenged the validity of Rule 6 of
the Adhoc Rules, 1974 on the ground that it violates Articles 14 and 16 of the
Constitution. The Tribunal held that Rule 6 does not contravene Articles 14 and
16 of the Constitution. The Tribunal found nothing objectionable in Rule 8 of
the Adhoc Rules, 1974 which protects the right of third class Post Graduate
degree holders who had been promoted under Rule 10(a) (i) of the State and Subordinate
Services Rules pending framing of Adhoc Rules.
Allowing Civil Appeals 1652-59 and dismissing
Civil Appeal 415,
HELD: There is no need to quash Rule 13(1) of
the Adhoc Rules, 1973 which has to be interpreted in the manner indicated in
the Judgment and 547 seniority has to be fixed accordingly. The seniority list
of 1976 is quashed and the seniority list of 1974 is restored.
Rule 6 of the Adhoc Rules, 1974 is valid.
[571 H, 572 A] There is no reason to think that the Government intended by Rule
13(1) of the Adhoc Rules, 1973 to take away from First and second class Post
Graduate Junior Lecturers the preference shown to them over third class
Post-Graduate Junior Lecturers in the executive instructions especially G.O.
Ms. 1147, Education, dated 4,6.1970 and even in Rule 3(1) and (2) of the Adhoc
Rules, 1973. Rules 3(1) and (2) and 13(1) have to be read together. Only then
there will be harmony between those rules. If Rule 13(1) is read without
reference to Rule 3(1) and (2) the consequence will be disharmony and the first
and second class Post-Graduate Junior Lecturers who were given preference over
third class Post Graduate Junior Lecturers will be placed in a less
advantageous and inferior position as compared with third class Post- Graduate
Junior Lecturers as regards seniority alone, which will not even help them in
the matter of promotion as Principals of Junior Colleges in view of Rule 6 of
Adhoc Rules, 1974 so long as they do not improve their academic attainment by
obtaining a first or second class Post-Graduate Degree. Every rule in the Adhoc
Rules must be given its full, natural and legal effect. There is no doubt that
Rule 13(1) is inartistically worded though when read with Rule 3(1) and (2) it
would be clear that the principle laid down in it has to be applied separately
to each of the three categories of Junior Lecturers mentioned in Rule 3(1) and
(2). Each of these three categories forms a distinct and separate category. The
first category consists of first and second class Post Graduates, and on their
appointment as Junior Lecturers their inter se seniority has to be fixed under
Rule 13(1) with reference to the dates of their original appointment as Post
Graduate School Assistants.
When Post-Graduates with not less than five
years of service, working as Post Graduate School Assistants are appointed as
Junior Lecturers their inter se seniority has to be fixed likewise under Rule
13(1) on the basis of the dates of their original appointment as Post-Graduate
School Assistants. Similarly, when Post-Graduates with less than five years of
service, working as Post Graduate School Assistants are appointed as Junior
Lecturers their inter se seniority has to be fixed on the basis of the dates of
their original appointment as Post-Graduate School Assistants. If Rule 13(1) is
interpreted in this manner, no disharmony will result from applying all the
adhoc rules. It is only by constructing Rule 13(1) in this manner the
Government framed the seniority list of 1974. [569 D-H 570 A F] The object of
achieving excellence in educational institutions like Junior Colleges is a
laudable one, and excellence in academic attainments of heads of such
institutions is a relevant fact. Promotion of Junior Lecturers as Principals is
based only on merit judged by their academic distinction which cannot be said
to be discriminatory. Prescribing a first or second class Post Graduate Degree
for the head of an educational institution has a direct nexus with the object
of excellence sought to be achieved, and it cannot be said to be
discriminatory.
Therefore, it is not possible to hold that
Rule 6 of the Adhoc Rules? 1974 is liable to be struck down as being
discriminatory and illegal. [572 G-H, 573 A] 548 S. M. Pandit v. State of
Gujarat, 1972 S.L.R. 79 not applicable.
The promotion of seven third class
Post-Graduate Junior Lecturers as Principals were irregular having regard to
the fact that even for appointment as Junior Lecturers preference has to be
given to first and second class Post Graduate School Assistants. The irregularity
has been sought to be overlooked by providing a saving clause by way of Rule 8
of the Adhoc Ruler, 1974. It is not possible to think that there could have
been any valid necessity to continue those adhoc promotions made even after the
Adhoc Rules, 1974 were framed within about three month of those promotions.
There is no meaning in providing for the option in that rule as it is not
likely that a person who has been promoted as Principal would voluntarily opt
for reverting to his original post of Junior Lecturer. However, having regard
to the long lapse of time it is not desirable to declare those appointments as
illegal. [573 E-H, 574 A] Rule 33(c) of the Andhra Pradesh State and
Subordinate Services Rules applies to persons who were transferred from one
class or category of service to another class or category of the same service
and would not apply to the fact of the present case where Junior Lecturers have
been appointed by election amongst Post Graduate School Assistants in the
manner indicated in Rule 3(1) and (2) of the Adhoc Rules and there is no
question of transfer of Post Graduate School Assistants as Junior Lecturers.
[571 C-E] Reserve Bank of India v. N. C. Paliwal, A.I.R. 1976 S.C. 2342 not
applicable.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1652 to 1657 of 1978 Appeals by Special leave from the Judgment and order
dated the 31st August, 1978 of the Andhra Pradesh Administrative Tribunal in
Representation Petitions Nos. 595 and 985 of 1977 and 340, 289, 466 and 533 of
1978.
WITH Civil Appeal Nos. 1658 and 1659 of 1978.
Appeals by Special leave from the Judgment
and order dated the 8th September, 1978 of the Andhra Pradesh Administrative
Tribunal in Representation Petitions Nos. 561 and 59 of 1978.
AND Civil Appeal No. 415 of 1979.
Appeal from the Judgment and order dated the
31st August, 1978 of the Andhra Pradesh Administrative Tribunal in Transferred
Writ Petition No. 941 of 1976.
549 M.N. Phadke, M. R. K Chaudhary, B. Kanta
Rao and Miss Nalini, for the Appellants in CA. Nos. 1652-59/78.
S. N. Kacker and B. Parthasarthi, for the
Appellants in CA 415.
T. S. Krishnamoorthy Iyer, K Ramkumar and
Mrs. J. Ramachandran, for RR. 3, 5, 8 and 9 in CAS. 1652-59/78.
P. Ram Reddy, and G. Narayana Rao for RR. 1
and 2 in CA. 1652-59 and 415 of 1979.
The Judgment of the Court was delivered by
VARADARAJAN J. These appeals by special leave are directed against the
Judgments of the Andhra Pradesh Administrative Tribunal, Hyderabad in
Representation Petitions 595 of 1977 and batch and transferred Writ Petition
941 of 1976. C. As. Nos. 1652 to 1659 of 1978 have been filed against the
common judgment dated 31.8.1978 in Representation Petition 595 of 1977 and
batch in which common issues arose for consideration while C.A. No. 415 of 1979
has been filed against the separate judgment, dated 31.8.1978 in Transferred
Writ Petition 941 of 1976. All these appeals by the petitioners before the
Tribunal were heard together in this Court and will be disposed of by a common
judgment.
The main judgment of the Tribunal in
Representation Petition 595 of 1977 and batch is in Representation Petition 595
of 1977 in accordance with which the other Representation Petitions in the
batch have been disposed of as stated elsewhere in this judgment.
Representation Petition 595 of 1977 was filed by seven petitioners of whom
petitioners Nos 1 to 6 were working as Principals of Junior Colleges at various
places while the seventh petitioner was working as a Junior Lecturer in
Government College, Srikakulam in Andhra Pradesh and claimed to be ripe for
promotion as Principal of Junior College on the basis of his original seniority
among junior Lecturers. We will refers to the parties in these appears as
arrayed before the Tribunal for the sake of convenience.
The seven pettioners in Representation
Petition 595 of 1977 who were working as Post-Graduate Assistants or
Headmasters in 550 the Zilla Parishad Higher Secondary Schools at different
places were appointed as junior Lecturers in 1969 as they were all
Post-Graduates who had passed in the first or second class with 50% marks and
above and were fully eligible for appointment as Junior Lecturers. The
petitioners' contention is that under the Adhoc Rules governing Junior
Lecturers they being Post-Graduates who had passed in first or second class,
should be placed in the seniority list above Post Graduate Assistants who hold
only third class Post-Graduate degrees. The second respondent, joint Director
of Higher Education, Andhra Pradesh, prepared a subject-wise seniority list in
1974 as per the rules,, placing the seven petitioners in Representation
Petition 595 of 1977 at Nos. 17, 15, 20, 21, 23, 40 and 41 respectively.
On the basis of that seniority Junior
Lecturers upto the rank of 40 in that list were promoted as Principals of various
junior Colleges. The 1st respondent State of Andhra Pradesh, prepared a revised
seniority list as per the directions of the Andhra Pradesh High Court in Writ
Petition No. 4358 of 1974 and Writ Appeal No. 920 of 1975. In that revised
seniority list issued in 1976 the petitioners in Representation Petition 595 of
1977 have been placed at Nos. 380, 54, 390, 392, 406, 368 and 374 respectively.
The petitioners' contention was that third class Post-Graduate degree holders
who were appointed for the first time in 1970 and 1975 as junior Lecturers were
shown in the said revised seniority list as seniors to the petitioners though
the petitioners had all been appointed as junior Lecturers in 1969 itself and
were regularised as early as in November 1969 and under the Adhoc Rules framed
by the Government, Post-Graduate Assistants with first and second class Post-
Graduate degrees should be treated as one group and as senior to Post-Graduate
Assistants with third class Post Graduate degrees, who should be treated as
another group.
The petitioners in Representation Petition
595 of 1977 prayed in these circumstances for quashing the revised seniority
list issued by the first respondent State of Andhra Pradesh on 27.12.1976 so
far as they are concerned and for restoration of their old seniority as per the
earlier seniority list of 1974 or in the alternative for declaring that Rule 13
(1) of the Adhoc Rules, 1973 dealing with seniority of Junior Lecturers is
violative of Articles 14 and 16 of the Constitution Rule 13 (ll and (2) of the
Adhoc Rules framed by the Government under Article 309 of the Constitution read
as follows:
"Rule 13 (1)-The seniority of a person
appointed under clauses (i) and (ii) of sub-rule (l) of Rule 3 shall be 551
determined with reference to the date of his actual appointment as a
Post-Graduate Assistant of the probable date on which he would have been
appointed as Post Graduate Assistant but for his appointment or promotion to a
higher post;
(ii) The seniority of any person appointed
under clause (iii) of sub-rule (1) of Rule 3 shall be determined with reference
to the date of commencement of his probation.
Provided that no such person shall be senior
to any person appointed under clause (i) or (ii) of sub-rule (1) of Rule 3;
Provided further that no person appointed
under sub- clause (b), sub-clause (c) or clause (iii) of sub-rule (I) of Rule 3
shall be senior to a person appointed under sub- clause (a) of that
clause...." Rule 3 of the Adhoc Rules, 1973 reads as follows: 4 "Rule
3 of Appointment: (1) Appointment to this class shall be made as follows:
(i) First by appointment of Post-Graduate
Assistants in Category I-A of Class II and Selection Grade Assistants in Grade
I of Category 2 of Class II in the Andhra Pradesh Educational Sub-ordinate
Service or Headmasters of High Schools and Post- Graduate Assistants in Zila
Parishads High Schools and such of the Municipal Schools as are converted into
Junior Colleges;
(ii) Secondly, if there are no suitable and
qualified persons available for appointment under clause (i) then by
appointment of Trained Graduates a possessing Post-Graduate Diploma in Physical
Sciences in the scale of pay admissible to Post Graduate Assistants immediately
before the commencement of these rules;
(iii) Thirdly, if there are no suitable and
qualified persons available for appointment under sub clause (i) or sub-clause
(ii)- 552 (a) by recruitment from among the Headmasters and Post-Graduate
Assistants in recognised Multipurpose or Higher Secondary Schools under private
management or under the management of the Municipality which are not converted
into Junior Colleges; or (b) By transfer from School Assistants in Grade II or
Category 2 in Class II and Pandits (including Hindi Pandits), Munshis Grade I
in Category I of Class III of the Andhra Pradesh Educational Subordinate
Service or by recruitment by transfer from any other service; or (c) by direct
recruitment.
(2) Preference shall be given for appointment
under clause (i) or sub-clause (a) of clause (iii) of sub-rule (I)(a):
(a) Firstly to persons with first or second
class Post Graduate degree;
(b) Secondly to persons with a third class
Post Graduate degree with not less than five years of service as a
Post-Graduate Assistant or Selection Grade Assistant in the Andhra Pradesh
Educational Subordinate Service or as a Headmaster of a Zila Parishad High
School or a Post Graduate Assistant in a school under the management of a Zila
Parishad or a Municipality;
(c) Thirdly to persons with a third classs
Post Graduate degree with less than five years' service as a Post Graduate
Assistant or Selection Grade Assistant in the Andhra Pradesh Educational
Subordinate Service or as a Headmaster of a High School or Post Graduate
Assistant in a School under the management of a Zila Parishad or a Municipality....."
553 The Andhra Pradesh Government decided in 1964 that the Secondary School
Education should be of 10 years' duration instead . 4 of 11 years and that it
should be followed by a two-years' Intermediate Collegiate education in the
place of the then existing Higher Secondary and Multi-purpose system commencing
from 1969-70. Accordingly, the Government decided- in G.O.Ms 1920, Education,
dated 25.10.1968 that in the existing colleges two-year Intermediate Course
should be introduced in the place of one year P.U.C. The staff pattern and pay
scales of staff in junior Colleges started for the two-year Intermediate Course
were laid down by the Government in G.O. Ms 2063, Education, dated 25.8.1969.
In G.O.Ms. 2186, Education, dated 17.9.1969 the Government issued the following
instructions regarding the absorption of Post-Graduate Teachers in Junior
Colleges:
"In regard to the appointment of Post
Graduates as Junior Lecturers in Junior Colleges, priority will be given to
those who are in the scales of pay of Rs. 180- 350 and who are suitable and
willing to be absorbed as per seniority as indicated below:
(a) First or second class Post-Graduates
working as Post-Graduate Assistants:
(b) Third class Post-Graduates with not less
than 5 years of service, working as Post-Graduate Assistants:
(c) Third class Post-Graduates with less than
of 5 years of service, working as Post Graduate Assistants.
and (d) Lastly Trained Graduates possessing
Post Graduate diploma in Physical Sciences, working in the Post Graduate
Assistant's scale.
It was stated in that G. O. that all the
existing Post Graduates who will be absorbed as Junior Lecturers in Junior
Colleges will be appointed temporarily as Junior Lecturers pending framing of
adhoc rules in due course. The Government ordered in G.o.Ms. 1147, Education,
dated 4.6.1970 that in the common seniority list first rank should be given
only to those who have secured first and second 554 class Post-Graduate degree
with 50 per cent marks and above.
These G. Os. were all executive instructions.
There is no dispute that the petitioners are
holders of first or second class Post-Graduate and that the private respondents
3 to 8 in Representation Petition 595 of 1977 who have been placed as their
seniors in the impugned seniority list of 1976 are holders only third class
Post- Graduate degrees. The petitioners relied heavily I J on the above rule 3
of the Adhoc Rules, according to which persons with first or second class
Post-Graduate degrees are to be given preference over Post-Graduates holding
third class degrees and contended that they should, therefore. be given
seniority over the third class Post Graduate degree holders in determining the
inter se seniority in the cadre of Junior Lecturers in Junior Colleges as was
done in the seniority list prepared in 1974.
The contention of the first respondent, State
of Andhra Pradesh, was that the executive instructions given in Government
orders regarding appointments of Junior Lecturers pending the framing of Adhoc
Rules under Article 309 of the Constitution ceased to operative once those
adhoc rules were framed and that under Adhoc Rule 13 the seniority of Post-
Graduate Assistants of former Higher Secondary Schools and Multipurpose Schools
with first, second and third class Post-Graduate degrees and Post Graduate
diploma shall have to be determined with reference to the actual date of
appointment as Post-Graduate Assistants. The Government denied that Rule 13 (l)
is violative of Articles 14 and 16 of the Constitution and contended in the
counter affidavit that the Education Department followed the judgment of the
Andhra Pradesh High Court in W.P. No. 4358 of 1974 and Writ Appeal 920 of 1975
and cancelled the earlier seniority list of 1974 and framed the revised seniority
list of 1976 according to Rule 13 (1) of the Adhoc Rules. Thus the Government
opposed the Representation Petitions.
The Tribunal has taken note in Paragraph 9 of
its judgment of the fact that the petitioners arc first and second class
Post-Graduate degree holders while respondents 3 to 8 are only third class Post
Graduate degree holders correctly, but it has wrongly observed that both the
categories of Post-Graduate Assistants have been appointed as Junior Lecturers
under Rule 3 (1) (i) of the Adhoc Rules issued in G.O.Ms 939, Education, dated
19.9.1973. It was not disputed 555 before us that the petitioners being first
and second class Post Graduates with 50 per cent and more marks were appointed
as Junior Lecturers in 1969 and that respondents 3 to 8 who are third class
Post-Graduates were appointed as Junior Lecturers only in 1970 and 1975.
Therefore, the petitioners and some of respondents 3 to 8 had been appointed in
1969 and 1970 before the Adhoc Rules were framed on 19.9.1973 and only some of
the respondents 3 to 8 B were appointed in 1975 under Rule 3 (1) (i) of those
Adhoc Rules. The fact that the petitioners were appointed as Junior Lecturers
earlier than the respondents was conceded by Mr. Shiv Shankar before the
Tribunal as seem from paragraph 8 of the Tribunal's judgment. The Tribunal
noted the following further facts:- (1) That Government had decided in G.O.Ms.
2063, Education, dated 25.8.1969 that first and second class Post- Graduates
would be given a higher starting pay of Rs 260 in the scale of Rs. 200-500 and
that third class Post- Graduates would be allowed only the pay drawn by them
before they were appointed as Junior Lecturers in the above scale;
(2) That the Government expressed the view in
G.O.Ms. 1147, Education, dated 4.6.1970 that in the common seniority list first
rank should be given only to those who have secured first or second class
Post-Graduate degrees with 50 per cent marks and above which is the
qualification prescribed for direct recruitment of Junior Lecturers; and (3)
That in Rule 3 (1) (i) of the Adhoc Rules framed on 19.9.1973 it is stipulated
that at the time of appointment to the category of Junior Lecturers persons
with first or second class Post Graduate degrees would have preference over
persons with third class Post Graduate degrees.
But the Tribunal relied heavily on the fact
that the Andhra Pradesh High Court had directed in Writ Appeals 920 and 938 of
1975 that the seniority list should be prepared in accordance with Rule 13 (1)
of the Adhoc Rules, 1973 which have been given retrospective effect from
1.8.1969 and held that the impugned seniority list framed as per Rule 13(1) of
the Adhoc Rules having precedence over the earlier executive instruction is
valid and that as the petitioners and respondents 3 to 8 belonged to the same
category of Post Graduate Assistants, there is no question of violation of
Articles 14 and 16 of the Constitution as Adhoc Rule 13 (1) says that seniority
of Post 566 Graduate Assistants appointed as Junior Lecturers shall be determined
with reference to the dates of their actual appointment as Post Graduate
Assistants or the probable dates on which they would have been appointed as
Post Graduate Assistants but for their appointment or promotion to higher
posts. The Tribunal has observed that if the intention of the Government was
otherwise they would have specifically provided accordingly. In this view the
Tribunal rejected the petitioners' prayer for restoring the old seniority list
prepared in 1974 which in its opinion is contrary to Rule 13 (1) of the Adhoc
Rules. Accordingly the Tribunal dismissed Representation Petition 595 of 1977
and in view of its judgment in that Petition either rejected or dismissed
Representation Petitions 985 of 197? And 289, 340, 446 and 553 of 1978. In
Representation Petition 273 of 1978 the Tribunal observed that the plea of the
petitioners that first and second class Post Graduate degree holders should be
given preference over third class Post Graduate degree holders in the matter of
seniority as Junior Lecturers is covered by its judgment in Representation
Petition 595 of 1977 and that since the petitioners in Representation Petition
273 of 1978 have already acquired B. Ed.
qualification, which is a prerequisite for
regular appointment as Post Graduate Assistants, the question of those
petitioners' regularisation in the posts of Post Graduate Assistants should be
examined in accordance with the rules and their service should be regularised
in that category and thereafter their seniority as Junior Lecturers should be
determined in accordance with Rule 13 (I) of the Adhoc Rules. In Transferred
Writ Petition 1246 of 1976 the Tribunal has stated in its judgment that in the
judgment of the High Court in Writ Appeals 920 and 938 of 1975, the High Court
has ordered that a fresh seniority list should be prepared in accordance with
Rule 13 (1) of the Adhoc Rules, that the relief prayed for by the four
petitioners in that Writ Petition has already been given and that Writ Petition
is disposed of accordingly. The Tribunal has ordered that Transferred Writ
Petition 78 of 1976 also stands disposed of, presumably in the same manner as
Transferred Writ Petition 1246 of 1976 was disposed of, without specifically
indicating bow that Writ Petition is disposed of.
In Transferred W.P. 941 of 1976 out of which
C.A. No. 415 of 1979 filed by 34 petitioners in that Petition has arisen, the
reliefs prayed for were: (I) that a correct seniority list based on Rule 13 of
the Adhoc Rules 1973 should be issued in respect of all the Junior Lecturers,
(2) that Rule 6 of the adhoc Rules framed in G.O.Ms. 557 502, Education, dated
19.6.1974, under which first or second class Post-Graduate degree has been
prescribed as the qualification for promotion to the posts of Principal of
Junior Colleges should be struck down as illegal and (3) that adhoc
appointments of seven third class Post-Graduate Junior Lecturers as Principals
of Junior Colleges made in the proceedings dated 14.3.1974 by the second
respondent Director of Public Instruction, Andhra Pradesh should be declared as
illegal, Here also we shall refer to the parties as arrayed before the Tribunal
for the sake of convenience as stated earlier.
The 34 petitioners in this petition were
working as School Assistants in Higher Secondary schools in Andhra Pradesh.
They were subsequently appointed as Junior Lecturers in junior colleges in
terms of Rule 3 of the Adhoc Rules which states that first preference for
appointment as junior Lecturers in Junior Colleges should be given to Post- Graduate
Assistants in Category I-A of Class II and Selection Grade Assistants in Grade
I of Category 2 of Class II in the Andhra Pradesh Educational Subordinate
Service or Headmasters or High Schools and Post-Graduate Assistants in Zilla
Parishad High Schools and such of the Municipal Schools as are converted into
Junior Colleges. The rule also provides that preference should be given to
persons with first or second class Post-Graduate degrees. Rules 13 (1) of the
Adhoc Rules provides that seniority is to be determined with reference to the
date of their actual appointment as Post Graduate Assistants or the probable
date on which they would have been appointed as Post-Graduate Assistants but
for their appointment or promotion to higher posts. The petitioners contended
that seniority of Junior Lecturers, which is being maintained subjectwise,
should be integrated and there should be a combined seniority list and not
subject-wise list. In the Adhoc Rules framed by the Government in G.O.Ms. 939,
Education, dated 19.9.1973 there were no rules regarding promotion of Junior
Lecturers to the posts of Principals of junior Colleges. Pending the framing of
Adhoc Rules in that regard the second respondent, Director of Public
Instruction, issued proceedings in R.C. No. 775-Cl/2/74 dated 14.3.1973
promoting under Rule 10 (a) (i) of the State and Subordinate Service Rules,
seven persons as Principals of Junior Colleges though they did not hold first
or second class Post-Graduate degrees.
Subsequently, Adhoc Rules were framed by the
Government in G.O.Ms. 502, Education, dated 19.6.1974 under the proviso to Rule
309 of the Constitution with retrospective effect from 1.8.1969 558 regarding
promotion to the posts of Principals of Junior Colleges. Under these Rules
Junior Lecturers holding a first or second class Post-Graduate degrees who have
put in a service of three years as Junior Lecturers in the Educational
Subordinate Service are eligible or promotion as Principals of junior Colleges.
But Rule 8 of the Adhoc Rules, 1974 which is a saving clause, reads as follows
"Notwithstanding anything contained in these Rules a person who held a
post of a Principal of Junior College immediately before the issue of these
Rules shall be continued as Principal and be given option either to continue in
the Post of a Principal or to revert to his original Post".
The tribunal affirmed in its judgment in this
Transferred Writ Petition its judgment in Representation Petition 595 of 1977
and observed that judgment would apply as regards the interpretation of Rule 13
in the matter of fixing inter se seniority among Post-Graduate School
Assistants appointed as Junior Lecturers under Rule 3 (l) (1) of the Adhoc
Rules, 1973, and that seniority should be determined with reference to the date
of appointment as Post Graduate School Assistants without reference to the
nature of the Post-Graduate degrees, whether they are first, second or third
class degrees. The Tribunal held that subject to that provision regarding
fixing of overall seniority subject-wise seniority can also be fixed and that
for purposes of promotion to the posts of Principals the overall seniority in
the category of junior Lecturers fixed in accordance with Rule 13 of the Adhoc
Rules should be followed.
It was submitted before the Tribunal on
behalf of the Government that considering the nature of the duties of
Principals there is a reasonable classification between first and second class
Post Graduate School Assistants and such Assistants holding only third-class
Post-Graduate degrees, and there is no contravention of Articles 14 and 16 of
the Constitution in prescribing first and second class Post-Graduate degree for
Junior Lecturers to be promoted as Principals of Junior Colleges and that clear
distinction has been maintained between holders of first and second class
Post-Graduate degrees and those holding only third class Post-Graduate degrees,
and the former class of Post-Graduate degree holders have been given advance
increments on their appointment as junior Lecturers while the latter have been
given only the pay they were drawing as 559 Post Graduate School Assistants
when they were appointed as junior Lecturers. It was also submitted before the
Tribunal that academic qualification is germane in the educational field and
that classification made on the basis of qualification for the post of
Principal cannot be termed as discriminatory.
On a perusal of G.O.Ms. 939, Education, dated
19.9.1973 in which Adhoc Rules under the proviso to Article 309 of the
Constitution have been framed by the Government the Tribunal found that
weightage is to be given for first and second class Post-Graduate degree
holders over third class Post- Graduate degree holders. The Tribunal accepted
the contention of the Government that in academic institutions excellence in
academic attainments is a relevant considera- tion and that any discrimination
based on excellence in academic attainments has direct nexus with the object of
achieving excellence in a teaching institution and that it does offend Articles
14 and 17 of the Constitution, more . O when third class Post-Graduate degree
holders are not permanently debarred from improving their standard of
qualifications for becoming eligible to the posts of Principals of Junior
Colleges. The Tribunal thus rejected the second prayer of the petitioners that
the prescription of first and second class Post-Graduate degree as
qualification for eligibility for promotion to the posts of Principals of
Junior Colleges contravenes Articles 14 and 16 of the Constitution.
The Tribunal found nothing objectionable in
Rule 8 of the Adhoc Rules 1974 referred to above which protects the rights of
third class Post-Graduate degree holders who had been promoted under Rule 10
(a) (i) of the State and Subordinate Service Rules pending framing of Adhoc
Rules which were actually framed subsequently on 19.6.1974.
On these findings the Tribunal dismissed
Transferred Writ Petition No. 941 of 1976.
Pursuant to the policy decision taken by the
Andhra Pradesh Government in 1964 that the secondary school duration should be
10 years instead of 11 years and it should be followed by a two years'
intermediate course in the place of the existing PUC instead of the then
prevailing Higher Secondary and Multi-purpose system, commencing from the
academic years 1969-70 the Government decided in G.O.Ms. 1920, Education, dated
25.10.1968 that in the existing 560 colleges the two years' intermediate course
should be introduced instead of the one year PUC, and laid down in G.o.Ms.
2063, Education, dated 25.8.1969 the staff pattern and pay scales of staff in
junior Colleges started for the two years' intermediate course. In implementing
this scheme Post-Graduates Assistants in certain categories of schools were
appointed as Junior Lecturers in Junior Colleges. The petitioners in
Representation Petition 595 of 1977 and batch, out of which Civil Appeals 1652
to 1659 of 1978 have arisen - and Transferred Writ Petition 941 of 1976, out of
which Civil Appeal 415 of 1979 has arisen and those in certain other
Representation Petitions and Transferred Writ Petitions 785 and 1246 of 1976
were appointed as Junior Lecturers. Prior to their appointment as Junior
Lecturers they were all Post-Graduate School Assistants or Headmasters in
various schools. The private respondents in Representation Petitions 595 of
1977 and batch and the petitioners in Transferred Writ Petition 941 of 1976
were seniors as Post-Graduate School Assistants to the petitioners in
Representation 595 of 1977 and batch and the private respondents in Transferred
Writ Petition 941 of 1976. The said senior Post-Graduate Assistants are all
third class Post-Graduate degree holders whereas the said Junior Post-Graduate
School Assistants are all first or second class Post Graduate degree holders.
Based on their superior academic qualification those first and second class
Post- Graduate School Assistants were given priority and treated as seniors to
the said third class Post-graduate School Assistants in the seniority list
prepared in 1974 after they were appointed as Junior Lecturers. The petitioners
in Representation Petitions 595 of 1977 and batch and the petitioners in
Transferred Writ Petition 941 of 1976 were appointed in 1969, 1970 and 1975 as
Junior Lecturers. In Writ Appeals 1? 920 and 938 of 1975 the Andhra Pradesh
High Court gave directions to prepare a common seniority list of junior
Lecturers in accordance with Rule 13(1) of the Adhoc Rules framed by the
Government in G.o.Ms. 939, Education, dated 19.9.1973. Pursuant to that
direction a revised seniority list of Junior Lecturers was issued by the Government
on 27.12.1976. In the seniority list of 1974 the petitioners in Representation
Petition 595 of 1977 had been placed at Nos 17, 15 20, 21, 23, 40 and 41
respectively, and on the basis of that seniority junior Lecturers up to the
rank of 40 in that list had been promoted as Principals of various junior
Colleges and the seventh petitioner in Representation Petition 595 of 1977 who
had been placed at No. 41 in that list was awaiting his promotion as Principal of
junior College. But in the revised seniority list of 1976 those petitioners
have been 561 placed at Nos. 380, 54, 390, 392, 406, 368 and 374 respectively
and the private respondents in that Representation Petition have all been 4
placed above them as their seniors. The seniority of the petitioners in the
other Representation Petitions in the batch was also disturbed to their
disadvantage in the revised seniority list of 1976.
The Representation Petitions were therefore
filed for quashing the revised seniority list issued by the first respondent
State of Andhra Pradesh in 1976 so far as the petitioners are concerned and for
restoration of their old seniority as per the earlier seniority list of 1974 or
in the alternative for declaring that Rule 13(1) of the Adhoc Rules, 1973
dealing with seniority of junior Lecturers is violative of Articles 14 and 16
of the Constitution. The only question arising for consideration in
Representation Petition 595 of 1977 and batch out of which Civil Appeals 1652
to 1659 of 1978 have arisen is the question of seniority of the Petitioners in
those petitions (appellants in Civil Appeals 1652 to 1659 of 1978). Though in
Transferred Writ Petition 941 of 1976 out of which Civil Appeal 415 of 1979 have
arisen three reliefs were prayed for viz. (1) that an integrated seniority list
based on Rule 13 of the Adhoc Rules, 1973 should be issued in respect of all
Junior Lecturers; (2) that Rule 6 of the Adhoc Rules framed in G.O.Ms. 502,
Education, dated 19.6.1974 by which first and second class post-graduate degree
has been prescribed for promotion of junior Lecturers as Principals of Junior
Colleges should be struck down as being illegal and (3) that adhoc appointments
of seven third class Post-Graduate degree holders as Principals of Junior
Colleges made in proceedings dated 14.3.1974 of the second respondent, Director
of Public Instructions should be declared illegal, Mr. S.N. Kackar, Senior
Advocate appearing for the appellants in Civil Appeal 415 of 1979 confined his
arguments to the second prayer alone viz. the attack on Rule 6 of the Adhoc
Rules framed G.O.Ms. 502, Education, dated 19.6.1974 which prescribes first or
second class Post-Graduate degree for promotion of Junior Lecturers as
Principals of Junior Colleges, which has been dealt with by the Tribunal in
paragraph 6 of its judgment in Transferred Writ Petition 941 of 1976. We shall
consider these two questions in this common judgment. We shall also consider
briefly the third prayer made in Transferred Writ Petition 941 of 1976 which
has been negatived by the Tribunal. We may state that the first prayer made in
Transferred Writ Petition 941 of 1976 will be covered by our finding on the
only point arising for consideration in Civil Appeals 165 to 1659 of 1978.
Mr. M.N. Phadke, Senior Advocate appearing
for the appellants in Civil Appeals 1652 to 1659 of 1978 drew our attention to
the 562 special provisions in various Government orders which are executive
instructions issued before the Adhoc Rules were framed under the proviso to Article
309 of the Constitution on 19.9.1973 and to some special provisions made even
in those adhoc rules showing preference and priority for Post- Graduate School
Assistants holding first and second class Post-Graduate degrees over such
Assistants holding only third class Post-Graduate degrees in the matter of
appointment as Junior Lecturers in Junior Colleges and of promotion of Junior
Lecturers as Principals of Junior Colleges and submitted that fixing seniority
of Junior Lecturers holding first and second class Post-Graduate degrees,
forming one group and of those holding third class Post-Graduate degrees,
forming another group, on the basis of the dates of their original appointment
as Post-Graduate School Assistants is arbitrary and therefore the impugned seniority
list of 1976 should be quashed and the seniority of the petitioners in the
representation Petitions (appellants in Civil Appeals 1652 to 1659 of 1978)
fixed in the list of 1974 should be restored. But Mr. T.S. Krishna Moorty Iyer
Senior Advocate appearing for the contesting private respondents 3, 5, 8 and 9
in Civil Appeals 1652 to 1659 to 1978 argued that before their appointment as
Junior Lecturers Post Graduate Assistants holding first, second and third class
Post Graduate Degrees were doing the same work and drawing the same scale of
pay. He submitted that though in G.O.Ms. 2063, Education, dated 25.8.1969 it
was stated that first or second class Post-Graduates will be given a higher
start of Rs. 260 in the pay scale of Rs. 200-15-320- 20-500 and third class
Post-Graduates will be allowed only the pay drawn by them before their
appointment as Junior Lecturers in the pay scale of Rs. 200-500 if their pay
was more than the minimum of the new scale on their appointment as Junior
Lecturers, nothing is mentioned in the Adhoc Rules, 1973 about salary, and this
would show that under the Adhoc Rules no new service was created but only the
previous service created by the executive instructions was continued and that
in all fairness and justice the private respondents in Civil Appeals 1652 to
1659 of 1978 who had been appointed as Post-Graduate School Assistants prior to
the appellants in those appeals should be regarded as their seniors as had been
done in the impugned seniority list of 1976 prepared in accordance with the
directions given by the Andhra Pradesh High Court in its judgment in Writ
Appeals 920 and 938 of 1975. Mr. P. Rama Reddy, Senior Advocate appearing for
the official respondents in all the civil appeals supported the impugned
judgment of the Tribunal saying that the first, second and third class
Post-Graduate Assistants before they 563 were appointed as Junior Lecturers
belonged to the same class and were drawing the same pay and doing the same
kind of work and that seniority after their appointment as Junior Lecturers
should be fixed on the basis of the dates of their original appointment as Post
Graduate School Assistants, as has been done in the impugned seniority list of
1976.
As stated above, in G.O.Ms. 2063, Education,
dated 25.8.1969 Government ordered that first or second class Post-Graduates
will be given a higher start of Rs. 260 in the new Junior Lecturers' pay scale
of Rs. 200-15-320-20-500 and third class Post-Graduates will be allowed only
the pay drawn by them before their appointment as Junior Lecturers in the scale
of Rs. 200-500 if their pay was more than the minimum of the new scale of Rs.
200-15-320-20-500. In G.O.Ms. 2186, Education, dated 17.9.1969 Government
decided that all the existing Post-Graduate teachers who will be absorbed in
Junior Colleges will be appointed temporarily as Junior Lecturers pending
framing of adhoc rules in due course and that in regard to appointment of
Post-Graduates as Junior Lecturers in Junior Colleges priority will - be given
to those who are in the scale of pay of Rs. 180-350 and are suitable and
willing to be absorbed as per seniority as indicated below:
(a) First and second class Post-Graduates
working as Post-Graduate Assistants:
(b) Third class Post Graduates with not less than
five years of service, working as Post Graduate Assistants;
(c) Third class Post Graduates with less than
five years of service, working as Post Graduate Assistants;
(d) Lastly, trained graduates possessing Post
Graduate Diploma in Physical Sciences, working in the Post Graduate Assistants'
scale.
In G.O.Ms. 1147, Education, dated 4.6.1970
Government reiterated the aforesaid decision taken in G.O.Ms. 2186, Education,
dated 17.9.1969 regarding priority to be given to first and second class
Post-Graduates over third class Post- Graduates, based on the recommendations
of the Vice Chancellors' Conference and stated 564 that they consider that in
the common seniority list first rank should be given only to those who have
secured first or second class with 50 marks and above and third class Post-
Graduates should be given rank with reference to their services viz. those with
five years of service, working as Post-Graduate Assistants, next to the first
and second class Post-Graduates, working as Post-Graduates Assistants and
thereafter those with less than five years of service, working as Post Graduate
Assistants. Government have observed in that G.O. that this manner of creating
seniority is reasonable. These orders are all no doubt in the nature of
executive instructions.
The Adhoc Rules were framed under the proviso
to Article 309 of the Constitution with retrospective effect from 1.8.1969 in
G.O.Ms. 939, Education, dated 19.9.1973 for the temporary posts of Junior
Lecturers in Government Degree and Junior Colleges in Andhra Pradesh. Rule 3
(1) and (2) of those rules reads as follows "3. Appointment:-(1)
Appointments to this class shall be made as follows:- (i) firstly by
appointment of Post Graduate Assistants in Category I-A of Clause II and
Selection Grade Assistants in Grade I of Category 2 of Class II of The Andhra
Pradesh Educational Subordinate Service, or Head Masters of High Schools and
Post Graduate Assistants in Zilla Parishad High Schools and such of the
Municipal Schools as are converted into Junior Colleges.
(ii) Secondly, if there are no suitable and
qualified persons available for appointment under clause (i), then, by
appointment of trained Graduates possessing Post Graduate Diploma in Physical
Sciences in the scale of pay admissible to Post Graduate Assistants immediately
before the commencement of these rules.
(iii) Thirdly, if there are no suitable and
qualified persons available for appointment under sub-clause (i) or sub-clause
(ii):- (a) By recruitment from among the Head Masters and Post Graduate
Assistants in recognised 565 multi-purpose or Higher Secondary Schools under
private management or under the management of a Municipality which are not
converted into Junior Colleges; or (b) By transfer from School Assistants in
Grade II Category 2 in Class II and Pandits (including Hindi pandits), Munshis
Grade I in Category I of Class III of the Andhra Pradesh Educational
Subordinate Service or by recruitment by transfer from any other service; or
(c) By direct recruitment.
(2) Preference shall be given for appointment
under clause (1) or sub-clause (a) of Clause (iii) of sub-clause 1- (a) Firstly
to persons with First or Second class P.G. Degree:
(b) Secondly to persons with a third class
Post Graduate Degree with not less than five years of service as Post Graduate
Assistants or Selection Grade Assistants in the Andhra Pradesh Educational
Subordinate Service or as a Head Master of a Zilla Parishad High School or as a
Post Graduate Assistant in a School under the management of a Zilla Parishad or
a Municipality;
(c) Thirdly to person with a third class Post
Graduate Degree with less than five years of service as a Post Graduate
Assistant or a Selection Grade Assistant in the Andhra Pradesh Educational
Subordinate Service or as a Head Master of a High School or Post Graduate
Assistant in a school under the management of a Zilla Parishad or of
Municipality.
.....................................".
It is not disputed before us that the
petitioners in Representation. Petition 595 of 1977 and batch (appellants in
Civil Appeals 566 1652 to 1659 of 1978) fall under the above preferred clause
(a) and that the contesting private respondents in those appeals and the
appellants in Civil Appeal 415 of 1979 fall under the above clause (b) or
clause (c) and they would have come up for consideration for appointment as
Junior Lecturers only after those falling under the above second clause (a).
Thus, the preference given to first and second class Post Graduate Assistants
in the matter of appointment as Junior Lecturers in G.O.Ms. 2186, Education
dated 17.9.1969 has been maintained even in the Adhoc Rules, 1973.
As submitted by Mr. T.S. Krishna Moorthy Iyer
there is nothing in the Adhoc Rules, 1973 regarding the salary of first and
second class Post Graduate Assistants on the one hand and of third class Post
Graduate School Assistants on the other on their appointment as Junior
Lecturers.
Therefore, G.O.Ms. 2063, Education, dated
25.8.1969 by which first and second class Post Graduates are given a higher
start of Rs. 260 in the new Junior Lecturers' pay scale of Rs.
200-15-320-20-500 and third class Post Graduates are given only the pay drawn
by them before their appointments as Junior Lecturers in the scale of Rs.
200-500 if their pay was more than the minimum of the new scale of Rs. 200-15-
320-20-500 continues to govern the matter of pay. This position is not disputed
before us. Thus, in the matter of pay also first and second class Post-Graduate
Assistants who are appointed as Junior Lecturers are placed in a better and
preferential position than third class Post Graduate Assistants who are
appointed as Junior Lecturers.
Sometime after the Adhoc Rules were framed on
19.9.1973, Government framed Adhoc Rules under the proviso to Article 309 of
the Constitution in G.O.Ms. 502, Education, dated 19.6.1974 for the temporary
posts of Principals of Junior Colleges in Andhra Pradesh with retrospective
effect from 1.8.1969. According to those rules the posts of Principals of
Junior Colleges form a separate class in the administrative section of the
Andhra Pradesh Educational Service, and appointment to that class should be
made; (a) by recruitment by transfer from Junior Lecturers in the Andhra
Pradesh Educational Subordinate Service who have opted or are deemed to have
opted to remain as Junior Lecturers, or (b) by recruitment by transfer of
Schools Assistants in Grade I and Deputy Inspectors of Schools Grade I in
Category 2 of clause II of the Andhra Pradesh Educational Subordinate Service.
Rule 6 of those Rules states that no person shall be eligible for appointment
to this class unless he 567 holds a first or second class Post-Graduate degree
of M.A., M. Sc., M. Com., B.A. (Hons.), B. Sc. (Hons.), or B. Com (Hons.) of a
University in India established or incorporated by or under a Central Act or a
Provincial Act or a State Act or institutions recongnised by the University
Grants Commission. This rule which is impugned in Civil Appeal 415 of 1979
prescribes a first or second class Post-Graduate degree for promotion of Junior
Lecturers to the posts of Principals of Junior Colleges. Under this rule third
class Post Graduate Junior Lecturers are not eligible for promotion as
Principals of Junior Colleges. Thus, even in the matter of promotion as
Principals of Junior Colleges, first and second class Post-Graduate Junior
Lecturers have priority and preference over third class Post-Graduate Junior
Lecturers who are not eligible at all for promotion as Principals on account of
the inferiority of their academic attainments so long as they remain only third
class Post Graduates.
Now Rule 13 dealing with seniority of junior
Lecturers reads as follows:-
13. Seniority: (1) The seniority of a person
appointed under clause (i) and (ii) of Sub- rule (1) of Rule 3 shall be
determined with reference to the date of the actual l appointment as a Post
Graduate Assistant or the probable date on which he would have been appointed
as a Post Graduate Assistant but for his appointment or promotion to a higher
post; (2) The seniority of any person appointed under clause (ii) of sub-rule
(1) of Rule 3 shall be determined with reference to the date of commencement of
his probation;
Provided that no such person shall be senior
to any person appointed under clause (i) or (ii) of sub-rule (1) of Rule 3.
Provided further that no person appointed
under sub-clause(b) or sub-clause (c) of clause (iii) of sub-rule(1) of Rule 3
shall be senior to a person appointed under sub-clause (a) of that
clause".
568 It was submitted before us that these two
provisos to sub-rule (2) of Rule 13 have been struck down by the Andhra Pradesh
Administrative Tribunal.
The main question for consideration is
whether in spite of the aforesaid provisions in the executive instructions and
adhoc rules providing for preferential treatment and position to holders of
first and second class Post-Graduate Degrees in the matter of appointment as
Junior Lecturers, their starting pay and subsequent promotion as Principals of
Junior Colleges, particularly (1) G.O.Ms. 1147, Education, dated 4.6.1970 in
which Government considered and decided that in the common seniority list first
rank should be given only two those who have secured first or second class
Post- Graduate degree with 50 per cent marks and above and third class
Post-Graduate Degree holders with not less than five years of service, working
as Post Graduate Assistants should be ranked next and third class Post Graduate
Degree holders with less than five years of service, working as Post Graduate
Assistants, should rank next, and (2) Rule 3(1) (i) and (2) of the Adhoc Rules,
1973 according to which in the appointment of Junior Lecturers preference has
to be given firstly to persons with first or second class Post Graduate
Degrees, secondly to persons with third class Post Graduate Degrees with not
less than five years of service as Post Graduate Assistants and thirdly to
persons with third class Post Graduate Degrees with less than five years of
service as Post Graduate Assistants, Rule 13(1) of the Adhoc Rules confers
seniority on third class Post Graduate Junior Lecturers over first and second
class Post Graduate Junior Lecturers based on their earlier appointment as Post
Graduate Assistants.
There is nothing on record to show that while
framing Rule 13(1) of the Adhoc Rules Government intended to depart from the
policy earlier enunciated in G.O.Ms. 1147, Education, dated 4.6.1970 as regards
conferment of seniority on first and second class Post-Graduate School
Assistants appointed as Junior Lecturers and Rule 3(1) (i) and (2) of the Adhoc
Rules, 1973 as regards preference of first and second class Post-Graduate
School Assistants over third class Post-Graduate School Assistants. On the
other hand, the fact that in the seniority list prepared in 1975 so soon after
the Adhoc Rules were framed on 19.9.1973 higher places were given to first and
second class Post-Graduate Junior lecturers over third class Post Graduate
Junior Lecturers although the first and second class Junior lecturers were
Juniors to the third class Post-Graduate Junior 569 Lecturers when they were
all-Post-Graduate School Assistants would indicate that the Government who
framed the Adhoc Rules themselves interpreted Rule 13(1) in the manner in which
the appellants in Civil Appeals 1652 to 1659 of 1978 invite us to do, giving
full effect to the priority laid down in Rule 3(1) and (2) of the Adhoc Rules
which follows the policy laid down in that regard in G.O.Ms. 1147, Education,
dated 4.6.1970. it is true that we cannot base our decision on this question on
that fact alone especially having regard to the stand now taken before us and
the Tribunal by the Government as regards the interpretation of Rule 13(1)
which perhaps they are obliged to take in view of the direction given by the
Andhra Pradesh High Court in Writ Appeals 920 to 938 of 1975 which is binding
on them to prepare a fresh seniority list as has been done by them subsequently
in 1976 which is impugned in Civil Appeals 1652 to 1659 of 1978. As stated
earlier there is no material on record to show that the Government had any reason,
policy or otherwise, when they framed the Adhoc Rules, 1973 to depart from what
they had decided in G.O.Ms. 1147, Education, dated 4.6.1970 about how seniority
should be accorded. There is no reason to think that the Government intended by
Rule 13(1) of the Adhoc Rules to take away from the first and second class
Post-Graduate Junior Lecturers the preference shown to them over third class
Post-Graduate Junior Lecturers in the executive instructions especially G.O.Ms.
1147, Education, dated 4.6.1970 and even in Rule 3(1) and (2) of the Adhoc
Rules, 1973. As contended by the appellants in Civil Appeals 1652 to 1659 of
1978 Rules 3(1) and (2) and 13(1) have to be read together. Only then there
will be harmony between those rules. If Rule 13(1) is read without reference to
Rule 3(1) and (2) the consequence will be disharmony and the first and the
second class Post-Graduate Junior Lecturers who were given preference over
third class Post-Graduate Junior Lecturers by the other provisions mentioned
above, will be placed in a less advantageous and inferior-position as compared
with third class Post-Graduate Junior Lecturers as regards seniority alone,
which will not even help them in the matter of promotion as Principals of
Junior Colleges in view of Rule 6 of Adhoc Rules, 1974 so long as they do not
improve their academic attainment by obtaining a first or second class Post
Graduate Degree. Every rule in the Adhoc Rules must be given its full, natural
and legal effect.
There is no doubt that Rule 13(1) is inartistically
worded though when read Rule 3(1) and (2) it would be clear that the principal
laid down in it has to be applied separately to each of the three categories of
Junior Lecturers mentioned in Rule 3(1) and (2) viz. 1) first and 570 second
class Post Graduates, (2) third class Post-Graduates with not less than five
years of service, working as Post Graduate School Assistants, and (3) third
class Post Graduates with less than five years of service, working as
Post-Graduate School Assistants according to the order in which they have to be
selected for appointment as Junior Lecturers. Each of these three categories
forms a distinct and separate category. The first category consists of first
and second class Post Graduate, and on their appointment as Junior Lecturers
their inter se seniority has to be fixed under Rule 13(1) with reference to the
dates of their original appointment as Post Graduate School Assistants.
When Post-Graduates with not less than five
years of service working as Post Graduate School Assistants are appointed as
Junior Lecturers their inter se seniority has to be fixed likewise under Rule
13(1) on the basis of the dates of their original appointment as Post Graduates
School Assistants.
Similarly, when Post Graduates with less than
five years of service, working as Post Graduate School Assistants are appointed
as Junior Lecturers their inter se seniority has to be fixed on the basis of
the dates of their original appointment as Post-Graduate School Assistants. If
Rule 13(1) is interpreted in this manner, no disharmony will result in the
consequences of applying all the adhoc rules We think that only by construing
Rule 13(1) in this manner the Government framed the seniority list of 1974 soon
after framing the Adhoc Rules, 1973 by according seniority to the first and
second class Post Graduate Junior Lecturers over the third class Post-Graduate
Junior Lecturers who were senior to them when all of them were working as Post
Graduate School Assistants before they were appointed as Junior Lecturers, As
stated earlier, before the Tribunal it was argued for the private respondents 3
to 8 in Representation Petition 595 of 1977 that the prayer for quashing Rule
13 (1) of the Adhoc Rules has to be negative in view of the High Court's
judgments in Writ Petition 4358 of 1974 and Writ Appeals 920 and 938 of 1975
and that it is not the contention of the petitioners in that petition that the
impugned revised seniority list of 1976 is contrary to the directions given in
those judgments. In the view we take regarding the interpretation of Rule 13
(1) there is no need for quashing that rule. It is true that the petitioners in
Representation Petition 595 of 1977 have not contended that the impugned
seniority list of 1976 is not in accordance with the directions given in the
High Court's Judgments in those Writ Petition and Writ Appeals. The petitioners
in 571 Representation Petition 595 of 1977 have contended that those judgments
relate to the 1969 batch and that they belong to 1960 batch and would not be affected
by them.
Whatever this may mean, it must be noted that
it has not been contended by the respondents in Civil Appeals 1652 to 1659 of
1978 that the appellants in those appeals were parties to those judgments and
they constitute res judicata and are binding on them. Therefore, there is no
substance in this contention of the private respondents in Representation
Petition 595 of 1977.
Next it was contended before the Tribunal by
the private respondents in Representation Petition 595 of 1977 that they were
appointed earlier as Post Graduate School Assistants than the petitioners in
that petition and were qualified to be appointed as Junior Lecturers when the
petitioners in that petition were appointed as such, but were not available for
posting, and that under Rule 33 (c) of the Andhra Pradesh State and Subordinate
Service Rules they are entitled to seniority. That rule applies to persons who
were transferred from one class or category of service to another class or
category of the same service, and would not apply to the facts of the present
case where Junior Lecturers have been appointed by selection amongst Post
Graduate School Assistants in the manner indicated in Rule 3 (1) and (2) of the
Adhoc Rules and there is no question of transfer of Post Graduate School
Assistants as Junior Lecturers. Therefore, there is no merit even in the second
contention put forward on behalf of the private respondents in Representation
Petition 595 of 1977.
There is no question of this Court striking
down Rule 13 (1) of the Adhoc Rules on the ground that any other rub which in
the opinion of the Court would have been better or more appropriate. Therefore,
the decision in Reserve Bank of India v. N.C. Paliwal(1) relied on for the
private respondents 3 to 8 in Representation Petition 595 of 1977 before the
Tribunal is not relevant. It is only a question of interpretation of Rule 13
(1) read with Rule 3 (1) and (2) of the Adhoc Rules, 1973.
In these circumstances we hold that Rule
13(1) of the Adhoc Rules, 1973 has to be interpreted in the manner indicated
above, and seniority has to be fixed accordingly and there is no need to 572
quash that rule and that the impugned seniority list of 1976 has to be quashed
and the seniority list of 1974 has to be restored. It would follow that the
first prayer in Civil Appeal 415 of 1979 regarding fixing of seniority as
prayed for by third class Post Graduate Junior Lecturers has to be rejected and
it is accordingly rejected.
Coming now to the only point argued by Mr. S.
N. Kackar, Senior Advocate for the petitioners in Transferred Writ Petition 941
of 1976 (Civil Appeal 415 of 1979) that Rule 6 of the Adhoc Rules, 1974
prescribing a first or second class Post Graduate Degree for a Junior
Lecturer's promotion as Principal of a Junior College, thereby excluding third
class Post-Graduate Junior Lecturers from eligibility for promotion as
Principals, we would like to state at the outset that the contention put
forward before the Tribunal that the posts of Principals are administrative
posts and no teaching experience is required is incorrect.
The Director of Public Instructions has
stated in his Proceedings Rc. No. 1068/IC-4/70 dated 16.1.1971 that Principals
of Junior Colleges must take at least six periods of work per week if not more.
Therefore, Principals of Junior Colleges have to take up teaching work in
addition to their administrative duties. They are administrative heads of
Junior Colleges where first, second and third class Post Graduates work as
Junior Lecturers. They have to exercise administrative control over first,
second and third class Post-Graduate Junior Lecturers. I. is therefore very
desirable that the Principals should be first or second class Post Graduates.
Post of Principals of Junior Colleges are gazetted while those of Junior
Lecturers of those colleges are not gazetted. According to G.O.Ms. 2068,
Education, dated 25.8.1969 Principals of Junior Colleges will have the status
of Senior Lecturers in Degree Colleges and their pay scale is Rs. 400-800 while
the pay scale of Junior Lecturers is Rs. 200-15-320-20-500. The object of
achieving excellence in educational institutions like Junior Colleges is a
laudable one, and excellence in academic attainments of heads of such
institutions is a relevant fact. Promotion of Junior lecturers as Principals is
based only on merit judged by their academic distinction which cannot be said
to be discriminatory. The ratio of this Court's decision in S. M. Pandit v.
State of Gujarat(1) referred to above cannot be applied to the facts of the present
case. Prescribing a first or second class Post- Graduate Degree for the head of
an educational 573 institution has a direct nexus with the object of excellence
sought to be achieved, and it cannot be said to be discriminatory. Therefore,
we do not think that Rule 6 of the Adhoc Rules, 1974 is liable to be struck
down as being discriminatory and illegal.
Pending the framing of Adhoc Rules for the
temporary posts of Principals of Junior Colleges, the Director of Public
Instructions issued proceedings in Rc 775-Cl/2/74 dated 14.3.1974 promoting
under Rule 10(a) (i) of the State and Subordinate Service Rules seven third
class Post Graduate Junior Lecturers as Principals of Junior Colleges.
The third prayer in Transferred Writ Petition
7146 of 1976 is that those appointments should be declared as illegal.
Under Rule 6(ii) of the Adhoc Rules, 1974
framed subsequently in G.O.Ms. 502, Education, dated 19.6.1974 three years'
service in the Andhra Pradesh Educational Subordinate Service is prescribed as
a qualification for promotion of Junior Lecturers as Principals of Junior
Colleges in addition to a first or second class Post Graduate Degree. It is not
known whether when those promotions of seven 4 third class Post-Graduate Junior
Lecturers as Principals were made first or second class Post-Graduate Junior
Lecturers were not available for promotion or why after the Adhoc Rules, 1974
were framed within about three months thereafter those third class Post-
Graduate Junior Lecturers were not reverted as Junior Lecturers. Their
promotions were irregular having regard to the fact that even for appointment
as Junior Lecturers preference has to be given to first and second class Post-
Graduate School Assistants. The irregularity has been sought to be overlooked
by providing a saving clause by way of Rule 8 of the Adhoc Rules, 1974 where it
is stated that notwithstanding anything contained in those rules a person who F
held the post of Principal of a Junior College immediately before the issue of
those rules and who was not appointed in accordance with those rules, shall be
continued as Principal and he is given an option either to continue in the post
of Principal or to revert to his original post. We do not think that there
could have been any valid necessity to continue those adhoc promotions made
even after the Adhoc Rules, 1974 were framed within about three months of those
promotions. We think that there is no meaning in providing for the option in
that rule as it is not likely that a person who has been promoted as Principal
in the grade of Rs. 400-800 would voluntarily opt for reverting to his original
post of Junior Lecturer in the grade of Rs. 200-15- 320-20-500. However, having
regard to 574 the long lapse of time we do not think it desirable to declare
those appointments as illegal.
In the result Civil Appeals 1652 to 1659 of
1978 are allowed as indicated above and Civil Appeal 415 of 1979 is dismissed.
The contesting respondents in Civil Appeals 1652 to 1659 of 1978 shall pay the
costs of the appellants in those appeals. Advocate's fees one set. The parties
shall bear their respective costs in Civil Appeal 415 of 1979.
H.S.K. CA Nos. 1652-59 of 1978 allowed and CA
No. 415 of 1979 dismissed.
Back
