Full Judgment Text
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PETITIONER:
C. C. PADMANABHAN & OTHERS
Vs.
RESPONDENT:
THE DIRECTOR OF PUBLIC INSTRUCTIONS AND OTHERS
DATE OF JUDGMENT30/07/1980
BENCH:
KOSHAL, A.D.
BENCH:
KOSHAL, A.D.
KRISHNAIYER, V.R.
REDDY, O. CHINNAPPA (J)
CITATION:
1981 AIR 64 1981 SCR (1) 128
ACT:
Promotional post-Post of Assistant Educational Officer
in Kerala Educational Service is a promotional post and a
reversion therefrom is, therefore, invalid-Articles 14, 16
of the Constitution read with Clause (2) of the Rules of the
Kerala State and Subordinate Services Rules, 1915, Rule 2(5)
and 2(7) (a) of the Kerala Education Rules, 1958 and Section
12A of the Kerala Education Act, 1958-The two posts of
Assistant Educational Officer and the High School Assistant
are not inter-changeable-Kerala Education Subordinate
Service (Special) Rules, 1972, Rule 3.
HEADNOTE:
Each of the appellants had been holding the post of
Assistant Educational Officer for more than six years
continuously when his reversion was ordered in
implementation of the instructions issued by the State
Government through a letter dated 19th May, 1977 to the
effect that every Assistant Educational Officer should be
transferred after six years of service as such or even
earlier, on administrative grounds. Having failed before the
High Court to get these orders quashed on the ground that
the posts of Assistant Educational Officers, being
promotional posts, their transfer to the posts of High
School Assistant amounted to reversion and, therefore,
violated Articles 14 and 16 of the Constitution, the
appellants have now come up in appeal by special leave.
Allowing the appeals, the Court,
^
HELD: (1) The directions contained in the letter dated
19th May, 1977 that an Assistant Educational Officer should
be transferred back as a High School Assistant after six
years of incumbency as Assistant Educational Officer is
wholly arbitrary and not based on any principle and is
therefore violative of Article 16 of the Constitution.
Firstly, the post of A.E.O. carries a special pay of Rs.
50/- per month and therefore ensures for its incumbent
higher emoluments than are available to a High School
Assistant. Secondly, the special pay is counted towards
pension under Rules 12, 23 and 62 of the Kerala Service
Rules. Any transfer of an Assistant Educational Officer to
that of High School Assistant deprives him of these benefits
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and, therefore, is violative of Article 14. [137H, 138A-D]
P. C. Joshi and others etc. etc v. The Director
General, Posts and Telegraphs, New Delhi etc., [1975] 2
S.C.R. 115, distinguished.
(2) The very fact that the post of Assistant
Educational Officer carries a special pay of Rs. 50/-
falling within sub-clause (a) of clause 31 of Section 12 of
the Kerala Service Rules, goes to prove that the post is
higher than that of High School Assistant. [136B-C, 137F-G]
(3) Rule 2(ii) of the Kerala State and Subordinate
Service Rules, 1958, Rule 2(v), Rule 2(vii)(a) of the Kerala
Education Rules, 1959 and Section 12A of the Kerala
Education Act, 1958 make it clear that if so authorised by
the
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Government an A.E.O. shall have the power to take
disciplinary proceedings against a teacher, including a
Headmaster, of an aided school, to suspend him when such
proceedings are proposed to be taken and to impose upon him
all or any of the penalties to which he may be liable under
the relevant rules. Item 4 of the functions to be performed
by an Assistant Educational Officer detailed in the
Education Department Guide Book, 1978 empowers him to
institute disciplinary proceedings against non-gazetted
officers under his control as per Kerala Civil Services
(Qualification, Control and Appeal) Rules, and admittedly
High School Assistants are non-gazetted officers who are
eligible for appointment and are normally appointed as
Headmasters of upper primary school and, therefore, they
would while functioning as Headmasters be amenable to
disciplinary action by their respective Assistant
Educational Officers. It follows that the post of an
Assistant Educational Officer lies in a higher category than
that of a High School Assistant who does not wield any
corresponding disciplinary jurisdiction. [132C-G]
The qualifications prescribed by the Government order
dated 25th June, 1966 and Rule 3 of the Kerala Education
Subordinate Service (Special) Rules, 1972 make it clear that
the two posts of Assistant Educational Officer and High
School Assistant are not inter-changeable. A High School
Assistant cannot be posted as an Assistant Educational
Officer unless he has the qualification (in addition to
those making him eligible to hold the post of High School
Assistant) of having passed the test in Kerala Education Act
and Rules. The broad guidelines issued by the State
Government to the effect that "care must be taken to see
that only officers of high integrity and efficiency should
be posted to work as Assistant Educational Officers", the
Government Order of 29th August, 1961, the letter dated 7th
February, 1969 issued by the Director of Public Instructions
and the Order dated 19th October, 1974 issued by the State
Government introducing direct recruitment to the posts of
A.E.Os. and District Educational Officers also specifically
indicate that the functions to be performed by an Assistant
Educational Officer are substantially different from and
entail higher responsibility than those of an H.S.A. so that
the appointment to the post of A.E.O. from amongst officials
already serving the State Government is a matter of
promotion and not a mere transfer and that is how the Kerala
Government itself has been viewing the matter all along
prior to the issuance of the letter dated 19th May, 1977.
[131G, 133B-C, E, F, 134G-H]
(4) If the rules do not permit Assistant Educational
Officers to become Headmasters of High Schools but the
Government has been posting them as such in contravention of
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the rules it would not follow that the rules automatically
stand amended to be read in conformity with the
contravention. There is no incongruity in the two categories
of the posts, one higher and the other lower, furnishing two
sources of recruitment to another higher post and it would
not necessarily follow from such a practice that the two
sources must be regarded as equivalent to each other for all
purposes. [135G-H, 136A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3520-
3524 of 1979.
(Appeals by Special Leave from the Judgment and Order
dated 11-9-1979 of the Kerala High Court in Writ Appeals
Nos. 241, 242/77 and Original Petition Nos. 1791, 1836 &
1892/79.)
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P. Govindan Nair. Mrs. Baby Krishnan and N. Sudhakaran
for the Appellants.
M. M. Abdul Khader, V. J. Francis and Sushil Kumar for
the Respondents.
The Judgment of the Court was delivered by
KOSHAL, J.-By this judgment we shall dispose of Civil
Appeal Nos. 3520 to 3524 of 1979 which are directed against
a common judgment dated 11-9-1979 of a Division Bench of the
High Court of Kerala holding that in the Department of
Education of the State of Kerala the post of Assistant
Educational officer (hereinafter described as A.E.O.) is not
a promotion post vis-a-vis that of a High School Assistant
(hereinafter referred to as H.S.A.), that the two posts are
interchangeable and that consequently the reversion of the
solitary appellant in each case from the post of A.E.O. to
that of H.S.A. is not violative of article 16 of the
Constitution.
2. It is not disputed before us that each of the
appellants had been holding the post of A.E.O. for more than
six years continuously when his reversion was ordered in
implementation of the instructions issued by the State
Government through a letter dated the 19th May, 1977 to the
effect that every A.E.O. should be transferred back as H.S.A
after six years of service as A.E.O. or even earlier on
administrative grounds. Each reversion was challenged before
the Kerala High Court by means of a petition under article
226 of the Constitution of India with the prayer that the
same be quashed. Two of the petitions were dismissed by a
learned single Judge whose orders were challenged in letters
Patent appeals which were heard and dismissed by the
impugned judgment along with the other three petitions. The
five appeals have been admitted in pursuance of special
leave granted by this Court.
3. On behalf of the appellants two contentions have
been raised:
(a) The post of A.E.O. lies in a category and carries
a grade higher than those of the post of H.S.A.
is, therefore, a post of promotion vis-a-vis the
other so that the two cannot be considered as
inter-changeable especially because there is no
rule, direction or instruction laying down
expressly or by necessary implication that they
are equivalent to each other.
(b) Even if the appointment of an H.S.A. as an A.E.O.
cannot be regarded as a promotion, the impugned
reversions are violative of article 14 as no
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guidelines to regulate them have been provided
inspite of the fact that the post of an A.E.O.
carries a special pay which is not available to an
H.S.A.
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After hearing learned counsel for the parties at length
we find both these contentions to be weighty.
4. Promotion is thus defined in clause (11) of rule 2
of the Kerala State and Subordinate Services Rules, 1958:
"(11) ’Promotion’ means the appointment of a
member of any category or grade of a service or a class
of service to a higher category or grade of such
service or class."
This definition fully conforms to the meaning of ’promotion’
as understood in ordinary parlance and also as a term
frequently used in cases involving service laws. According
to it a person already holding a post would have a promotion
if he is appointed to another post which satisfies either of
the following two conditions, namely-
(i) that the new post is in a higher category of the
same service or class of service;
(ii) the new post carries a higher grade in the same
service or class.
It is common ground between the parties that in the
instant case the two posts belong to the same service or
class of service. Applying the above test, therefore, to
them it would follow that the appointment of an H.S.A. to
the post of an A.E.O. would be a promotion if, and only if-
(a) the post of an A.E.O. is of a higher category than
that of an H.S.A.
or
(b) the post of an A.E.O. carries a higher grade than
that of an H.S.A.
In case of either of these conditions being fulfilled, the
appointment of an H.S.A. to the post of an A.E.O. would be a
promotion within the meaning of the clause above reproduced.
5. For ascertaining whether or not the post of A.E.O.
lies in a category higher than that of an H.S.A. a reference
may be made to clauses (5) and (7a) of rule 2 of the Kerala
Education Rules, 1959 and section 12A of the Kerala
Education Act, 1958. Rule 2(5) defines Educational officer
as meaning the District Educational officer or the Assistant
Educational officer having immediate inspectional and
administrative control over the schools within his
respective jurisdiction, while rule 2(7a) states that the
term ’Teacher’ includes the Headmaster. Sub-sections (1) &
(2) of section 12A run thus:
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"(1) Notwithstanding anything contained in section
11 or section 12 and subject to such rules as may be
prescribed, the Government or such officer not below
the rank of an Educational officer, as may be
authorised by the Government in this behalf, shall have
power to take disciplinary proceedings against a
teacher of an aided school and to impose upon him all
or any of the penalties specified in the rules under
this Act.
"(2) The Government or the officer authorised
under sub-section (1) as the case may be, may suspend a
teacher of an aided school when any disciplinary
proceedings are proposed to be taken against him under
that sub-section or when such disciplinary proceedings
are pending: .....".
The combined effect of these provisions is that if so
authorised by the Government an A.E.O. shall have the power
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to take disciplinary proceedings against a teacher,
including a Headmaster, of an aided school, to suspend him
when such proceedings are proposed to be taken and to impose
upon him all or any of the penalties to which he may be
liable under the relevant rules.
The Education Department Guide Book, 1978 issued by the
State Government contains a detailed description of the
powers and duties assigned to various officials of the
Department. The list of functions to be performed by the
A.E.Os. contains 40 items of which item 4 reads:
"To institute disciplinary proceedings against
non-gazetted officers under his control as per Kerala
Civil Services (C. C. and A.) Rules."
Now H.S.As. are admittedly non-gazetted officers who
are eligible for appointment and are normally appointed as
Headmasters of Upper Primary schools (vide paragraph 1(a)(i)
of G.O.(Ms) No. 32/71/S. Edn., dated 19-3-1971). They would
thus while functioning as Headmasters, be amenable to
disciplinary action by their respective A.E.Os. It follows
that the post of the A.E.O. lies in a higher category than
that of the H.S.A. who does not wield any corresponding
disciplinary jurisdiction.
6. The qualifications for the two posts may now be
looked into. A.E.Os. are appointed from amongst first grade
graduate teachers having the following qualifications (vide
No. G.O.M.S. 393/Edn., dated 25-7-1966):
(a) General: B.A. or B.Sc.
133
(b) Special: (i) B.T. or B.Ed. of a recognised
University.
(ii) Account Test Lower.
(iii) Kerala Education and rules.
Rule 3 of the Kerala Education Subordinate Service
(Special) Rules framed in 1972 runs thus:
"3. No High School Assistant shall be considered
for being selected for posting as an Assistant
Educational officer unless he has passed the test in
Kerala Education Act and Rules."
This rule seriously militates against the proposition
propounded on behalf of the State that the two posts are
inter-changeable. An H.S.A. cannot be posted as an A.E.O.
unless he has the qualification (in addition to those making
him eligible to hold the post of H.S.A.) of having passed
the test in Kerala Education Act and Rules. The reason for
the additional qualification is obvious and that is that in
his supervisory and disciplinary jurisdiction the A.E.O. has
to discharge functions which he cannot efficiently carry out
if he is not a master of the law which calls for day to day
application by him to different cases with which he has to
deal. This is another factor pointing in the same direction
that the post of an A.E.O. lies in a higher category.
7. An additional circumstance leading to the same
inference is provided by the broad guidelines issued by the
State Government to the effect that "care must be taken to
see that only officers of high integrity and efficiency
should be posted to work as Assistant Educational officers"
(vide judgment dated 11th January, 1977 of the High Court of
Kerala in O.P. No. 3627 of 1974). H.S.As, are, therefore,
appointed to the posts of A.E.Os. not as a matter of course
but under a process of selection for which the basic is
integrity-cum-efficiency.
Further evidence in the same direction is provided by
three documents forming part of the paper book at pages 31-
38 and market as annexures ’C’, ’D’ and ’E’ respectively.
Annexure ’C’ is an order dated 29th August 1961 issued by
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the State Government, a part of paragraph 3 of which reads
thus:
"Criteria for promotion:
"(1) Appointment to the posts of District
Educational officers, Headmasters of High Schools, High
School Assistants and Assistant Educational officers
are now made mainly on the basis of seniority.
Promotion on the basis of seniority alone is not
conducive to efficiency. Promotions to these posts will
hereafter be made on a selection basis.
134
"(2) The above orders will be given effect from
the 1st September 1961.."
Annexure ’D’ is a letter dated 17th February 1969 from
the Director of Public Instructions to the District
Educational officer, Trivandrum and states, inter alia,:
"The question of probation arises only when there
are functional differences. So in the case of Assistant
Educational officers probation has to be insisted on."
The last of the three documents is an order dated 19th
October 1974 issued by the State Government introducing
direct recruitment to the posts of A.E.Os. and District
Educational officers. It contains, amongst others, the
following directions:
"The persons selected will be required to
undergo/pass the following training
programme/departmental tests:
"Assistant Educational officers,
"Training: One year as Headmaster of an Upper Primary
School.
"2. Six months with Assistant Educational officer
of which the last three months shall be as Head Clerk
of the Assistant Educational officer’s office.
"3. Six months in the District Educational
officer’s office of which the last three months will be
as Junior Superintendent in charge of one of the
sections.
"4. Two months OM(?) training in the Directorate
or Secretariat Training School.
"5. Four months as personal assistant to
Educational officer. "Departmental Tests:
1. Account test (Lower).
2. Test in Kerala Education Act and Rules.
3. Test in Manual of office Procedure."
The integrated effect of these three documents is that the
functions to be performed by an A.E.O. are substantially
different from and entail higher responsibility than those
of an H.S.A., that the appointment to the post of an A.E.O.
from amongst officials already serving the State Government
is a matter of promotion and not a mere transfer, and that
that is how the Kerala Government itself has been viewing
the matter all along prior to the issuance of the letter
dated 19th May, 1977 mentioned above.
135
8. Here we may briefly advert to the constitution of
the Kerala General Education Service as detailed in G.O. (P)
No. 356/PD, dated 28th October, 1967 and published in Kerala
Gazette No. 46, dated 21st November 1967. That Service is
divided into two classes. The post of the District
Educational officer falls in Class I which is superior to
Class II. The posts enumerated in Class II include those of
Headmasters of High Schools. The post of H.S.A. does not
find a place in either Class. On the other hand the H.S.A.
belongs to the Kerala Educational Subordinate Services and
works under the Headmaster of a High School. He is,
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therefore, two steps below the District Educational
officers. Mr. Nair sought to utilise this circumstance as
another pointer to the post of H.S.A. lying in a category
lower than that of an A.E.O. for, according to him, the
latter was only one step below the post of a District
Educational officer. The argument has not commended itself
to us as no foundation has been laid for the assumption that
the post of an A.E.O. furnishes an immediate avenue of
promotion to that of the District Educational officer. In
fact an indication to the contrary is provided by the
various categories listed in Classes I and II mentioned
above, neither of which includes either H.S.As. or A.E.Os.
This may well mean that the A.E.O. too is to hold another
post (out of those listed for the purpose in the G.O. last
mentioned) before he would have a chance of promotion as a
District Educational officer. And if that be so, an A.E.O.
must also be regarded as two steps below a District
Educational officer. The G.O. under consideration is,
therefore, of no help to the case of the appellant, but then
this conclusion does not adversely affect the finding
already arrived at by us otherwise to the effect that the
post of an A.E.O. lies in a higher category.
9. The only argument which Mr. Abdul Khader advanced
against the proposition that the post of an A.E.O. lay in a
higher category may be stated thus. According to the
available rules and instructions an H.S.A., but not an
A.E.O., may be appointed to the post of Headmaster of a High
School. However, the Government has been appointing A.E.Os,
also as Headmasters of High Schools which means that A.E.Os
are equated with H.S.As. Now this is, to say the least. a
strange argument. If the rules do not permit A.E.Os. to
become Headmasters of High Schools but the Government has
been posting them as such in contravention of the rules it
would not follow that the rules automatically stand amended
to be read in conformity with the contravention. In any
case, there is no incongruity in two categories of posts,
one higher and the other lower, furnishing two sources of
recruitment to another higher post; and it would not
necessarily
136
follow from such a practice that the two sources must be
regarded as equivalent to each other for all purposes.
10. Let us now see if the post of an A.E.O. carries a
higher grade. It is common ground between the parties that
although the two posts are in the same time scale, a special
pay of Rs. 50/- per mensem is attached to post of an A.E.O.
in accordance with the orders of the State Government
contained in clause (v) of paragraph 5 of G.O. (P) No.
300/66/Fin., dated 5-7-1966 which also states that this
special pay is to be treated as Class I special pay in
accordance with Appendix IV, Kerala Service Rules. That
Class consists of two items:
(a) Special pay in lieu of higher time scale of pay.
(b) Special pay for specifically arduous nature of
work.
The expression ’special pay in lieu of higher time scale of
pay’ may be better understood with reference to the
provisions of rule 12(31) of the Kerala Service Rules which
may be extracted here:
"12(31) Special Pay:-means an addition of the
nature of pay to the emoluments of a post or of an
officer granted in consideration of the following:
"(a) Where a post would call for a higher scale of
pay in view of the additional and/or higher
responsibilities attached to it: or
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"(b) Where the nature of work is specially
arduous; or
"(c) Where an officer has to attend to work in
addition to normal duties attached to his post."
Sub-clauses (b) & (c) of clause (31) obviously relate to
posts having the same designation or the same nature of
duties in the same time scale which is not the case here. On
the other hand, the special pay granted to an A.E.O. would
squarely fall within the sub-clause (a) of clause (31), in
view of the nature of higher responsibilities shouldered by
him. And if that be so, the grade of the post of an A.E.O.
must be equated to the time scale plus special pay, which
would be a grade higher than the one available to an H.S.A.
11. In contending to the contrary Mr. Abdul Khader
sought support from P. G. Joshi and others, etc. etc, v. The
Director General, Posts and Telegraphs, New Delhi, etc.(1),
in which the posts of Wireless Licence Inspectors and Town
Inspectors, to such of which a special pay of Rs. 30/- was
attached, were held equivalent to those of clerks, the time
scale for all the three being the same. The dictum in that
case is, however, not applicable to the facts with which we
are concerned. Therein this Court took note of the
definition of special pay occurring in Fundamental 9(25)
which states:
137
"Special pay means, an addition of the nature of
pay, to the emoluments of a post or of a Government
servant, granted in consideration of
(a) the specially arduous nature of the duties; or
(b) a specific addition to the work or responsibility;
or
(c) the unhealthiness of the locality in which the
work is performed."
then proceeded to observe:
"The provision for payment of a special pay of Rs.
30/- in addition to the time scale of pay of clerks is
inconsistent with the constitution of a separate cadre
of Wireless Licence Inspectors and Town Inspectors. The
provision for special pay shows that they continue in
the cadre of time-scale clerks. Appointment as Wireless
Licence Inspectors or Town Inspectors is not a case of
transfer from one cadre to another or a case of
promotion from a lower cadre to a higher cadre or from
a lower post to a higher post. Though, for directly
recruited Wireless Inspectors, there is an avenue of
promotion from those posts to the post of Wireless
Investigating Inspectors, no such avenue of promotion
has been shown to exist for Wireless Licence Inspectors
appointed from amongst time-scale clerks. Their avenues
of promotion are from their substantive posts of time-
scale clerks. The posts of Wireless Licence Inspectors
to which time-scale clerks are appointed by selection
did not constitute a separate cadre and the
appointments are not by way of promotion. The posts of
Wireless Licence Inspectors are in the cadre of time-
scale clerks and carry a special pay on account of
additional work."
Special pay of Rs. 30/- in that case, it may thus be
seen something quite different from the special pay in the
instant case which, as we have already found, was fitted in
lieu of a higher scale of pay consistent with the higher
responsibilities which are entailed in the performance of
his functions by an A.E.O. All the three clauses of
Fundamental Rule 9(25) correspond with the definition of
special pay contained in sub-clauses (b) & (c) of clause
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(31) of rule 12 of the Kerala Service Rules and none of them
takes within its sweep the type of special pay envisaged by
sub-clause (a) of rule 12(31). The case cited is thus fully
distinguishable and is of no assistance to the case
propounded on behalf of the State Government.
12. We now take up the second limb of the argument of
Mr. Nair, namely, that even if the post of an A.E.O. is not
regarded as higher to that of an H.S.A. either category-wise
or grade-wise, the impugned reversions are still hit by
article 14 of the Constitution of
138
India. In this connection two important factors have to be
taken note of. The first is that the post of an A.E.O.
carries a special pay of Rs. 50/- per month, and, therefore,
ensures for its incumbents higher emoluments than are
available to an H.S.A. The second is that the special pay is
counted towards pension as is made out on a reading of rules
12(23) and 62 of the Kerala Service Rules. According to rule
12(23) special pay is part of ’pay’ while rule 62 states
inter alia that emoluments which are reckoned for pension
include pay as defined in rule 12(23). The post of an A.E.O.
thus carries with it not only benefits enjoyable by the
incumbent so long as he holds the post but also such as are
available to him after retirement. The substantial
improvements in the benefits which an H.S.A. thus enjoys
after his posting as an A.E.O. constitute a compelling
circumstance which would necessitate the formulation of
rational criteria to be followed in transferring an H.S.A.
as an A.E.O. and vice-versa so that mere caprice does not
deprive an A.E.O. of the benefits enjoyed by him. The
direction contained in the letter dated 19-5-1977 that an
A.E.O. should be transferred back as an H.S.A. after six
years of service as A.E.O. is wholly arbitrary and not based
on any principle. It is, therefore, violative of article 14
and we hold it to be so.
13. In the result all the five appeals succeed and are
accepted. The impugned judgment is set aside and the orders
’transferring’ the appellants from the posts of A.E.Os. to
those of H.S.As. are quashed. As a necessary consequence if
any of the appellants has had to relinquish charge of the
post of A.E.O. in compliance with such orders, he shall be
deemed to have continued to hold the post of an A.E.O. (in
spite of and right from the date of the order of his
transfer as H.S.A.) and to be entitled to all the benefits
pertaining to that post, and the respondents are directed to
repost him as A.E.O. as expeditiously as possible and within
a month from the date of this order at the latest.
14. We make it clear that the vice of arbitrariness and
other infirmities we have pointed out are curable if only
the State Government amends the rules fairly and rationally.
This judgment does not stand in the way of Government
framing new rules or amending the old rules but such rules
must be in conformity with Part III of the Constitution.
S.R. Appeals allowed.
Appeal, allowed.
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