Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6583-6584 0F 2008
(Arising out of S.L.P.(C) Nos. 3498-3499 of 2005)
T. VENKATESWARULU — APPELLANT
VERSUS
— RESPONDENTS
EXECUTIVE OFFICER, TIRUMALA
TIRUPATHI DEVASTHANAMS & ORS.
J U D G M E N T
D.K. JAIN, J.:
Special leave granted.
2. These appeals are directed against a common judgment and
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order dated 8 July, 2004 passed by the High Court of
Judicature, Andhra Pradesh at Hyderabad in Cross Writ
Appeals No.767 and 846 of 2000. By the impugned
judgment, the Division Bench while reversing the decision
of the learned Single Judge has held that the appellant is
eligible for conversion as Assistant Executive Engineer only
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with effect from 26 October, 1989 and not from an anterior
date when he passed the qualifying graduate examination
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i.e. 28 August, 1983.
3. To understand the controversy involved, a few material facts
may be stated, which are as under:
The appellant, a diploma holder, who was initially
sponsored by the Employment Exchange for the post of
“Supervisor”, was considered and appointed as a
“Draughtsman Grade-I” in Tirumala Tirupathi Devasthanams
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(for short ‘TTD’) on 3 August, 1977. The post of
Draughtsman Grade-I was considered to be lower to the post
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of “Supervisor”. On 17 March, 1978, by G.O. 563, the State
of Andhra Pradesh provided some promotional opportunities
to the Supervisors. It was ordered that Supervisors who
acquire engineering graduate qualification may be promoted
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temporarily to the post of Junior Engineers. The TTD Rules,
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1978 came into force on 2 August, 1978. Under these Rules,
the only method of recruitment to the post of Junior Engineer
was by direct recruitment and, therefore, under the 1978
Rules, there was no provision for promotion of Supervisors as
Junior Engineers. It was only by virtue of G.O. 563,
Supervisors, who had acquired BE qualification could be
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promoted as a Junior Engineer. By G.O. No.173 dated 8
April, 1981, the post of Junior Engineer was re-designated as
Assistant Executive Engineer and the post of Supervisor was
re-designated as Assistant Engineer.
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4. The appellant acquired BE Degree on 28 August, 1983.
Aggrieved by the denial of the same benefit as was extended
to the Supervisors, the appellant filed a writ petition in the
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High Court. By judgment dated 22 August, 1986, TTD
was directed to consider the appellant’s case for promotion
as Junior Engineer, re-designated as Assistant Executive
Engineer, if he was otherwise eligible according to the rules.
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5. Pursuant to and in furtherance of the said direction by the
High Court, the appellant made a representation to the
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authorities concerned, which was rejected on 19 April,
1987 for the reason that he was found to be not eligible for
promotion as Assistant Executive Engineer under the TTD
Service Rules, 1978. The appellant challenged the said
order by filing another writ petition, which was again
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disposed of on 30 March, 1990, with a direction to the TTD
Management to consider the appellant’s case taking into
consideration the promotional channels set out for Category
5 employees in the engineering department, meaning
thereby the appellant was to be considered for promotion on
the basis of the rules existing as on the date of the order. It
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may be noted that on 24 October, 1989, TTD Employees
Service Rules, 1989 (for short ‘the 1989 Rules’) had come
into force. Pursuant to the said direction, the case of the
appellant was considered under 1989 Rules and he was
appointed, on conversion, as an Assistant Executive
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Engineer with effect from 26 October, 1989, i.e. the date
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with effect wherefrom the 1989 Rules were enforced vide
G.O. Ms. No.1060.
6. Still being dissatisfied with the treatment meted out to him,
the appellant preferred yet another writ petition in the High
Court. The grievance of the appellant before the High
Court, sans unnecessary details, was that:– (i) he was
entitled to appointment by conversion as Assistant
Executive Engineer from the date next to the last date of his
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qualifying degree examination viz. 28 August, 1983, (ii)
persons similarly situated like him had been appointed by
transfer as Assistant Executive Engineers and were
accorded the benefit of such promotion with effect from the
date on which the Management of TTD by Resolution
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adopted G.O. Ms. No.563 dated 17 March, 1978 (order of
the Government granting promotional benefits in the
category of Assistant Executive Engineers to graduate
qualified Supervisors) and, therefore, the action of the
Management in not extending a similar benefit to the
appellant amounts to hostile discrimination, violative of
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Article 14 and 16 of the Constitution and (iii) on
representation by the Supervisors, the TTD Management
had granted benefit in the promotional post of Assistant
Executive Engineer to them with effect from the date of their
acquiring graduate qualification in Engineering, which
benefit has been denied to him.
7. Refuting the allegations made by the appellant, the TTD
Management stated that the benefit of conversion under
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G.O. Ms. No. 563 dated 17 March, 1978, was granted by
the State Government only to the category of graduate
Supervisors for promotion to the post of Assistant Executive
Engineers and not to Draughtsman Grade-I, which benefit
continued to be available only to the Supervisors till a
provision was made in the 1989 Rules vide G.O. Ms.
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No.1060 dated 24 October, 1989, creating a channel of
promotion for Draughtsman Grade-I also to the category of
Assistant Executive Engineers on acquisition of graduate
qualification. It was, thus, pleaded that it was on account
of the said amendment that the appellant became eligible
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for the said promotion with effect from 26 October, 1989
and was given promotion accordingly and that the two
cadres of “Supervisors” and “Draughtsman Grade-I” being
distinct, no element of discrimination was involved in not
extending the same benefit to the two cadres.
8. On consideration of the material on record, the learned
Single Judge finally concluded as under:
“It is admitted by the TTD that though the
Supervisors who were given the benefit initially from
the date of resolution of the Board adopting the
orders of the Government, they were subsequently
given the benefit with effect from the date of their
acquisition of graduate qualification. In so far as
the petitioner is concerned, it is stated that the
Government has been addressed to clarify whether
the case of the petitioner could also be considered
for appointment as an Assistant Executive Engineer
with effect from 29.08.1983, the date on which he
acquired the graduate qualification. At the same
time, it is averred that the petitioner is not eligible
for conversion as Assistant Executive Engineer with
retrospective effect from 29.08.1983. Genuine
reasons are not advanced by the respondent in
support of this contention. In the circumstances
above, this court is of the considered view that the
respondent TTD is obligated to consider the case of
the petitioner for extension of the benefit of
conversion to the category of Assistant Executive
Engineer with effect from the date next to the date
he acquired graduate qualification on par with
similarly situated persons who were extended the
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said benefit viz. Supervisors who had acquired
graduate qualification. Draughtsman Grade-I are
entitled to the benefits of conversion consequent on
acquisition of graduate qualification, and they
should be treated similar to the category of
supervisors who have been extended the said
benefit. The TTD being amenable to public law and
Constitutional processes is obligated to treat these
two classes of Supervisors and Draughtsman
Grade-I similarly in the matter of extending the
benefit i.e. the date from which the conversion is to
be accorded viz. the date next to the date of
acquisition of graduate qualification.”
9. Accordingly, the learned Single Judge directed the TTD
Management to consider the case of the appellant for
promotion as Assistant Executive Engineer with effect from
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29 August, 1983, the date on which he had acquired the
graduate qualification, within four months.
10. Being aggrieved by the decision and direction of the
learned Single Judge, the TTD Management preferred an
intra- court appeal to the Division Bench. As noted
hereinabove, the Division Bench reversed the decision of
the learned Single Judge and consequently dismissed the
writ petition. It appears that the appellant filed an
application before the High Court seeking review of
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judgment dated 8 July, 2004 but it was also dismissed on
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1 October, 2004. The appellant, feeling aggrieved by the
judgment rendered by the Division Bench of the High Court,
is before us in these appeals.
11. We have heard learned counsel for the parties.
12. Mr. L. Nageswara Rao, learned senior counsel appearing on
behalf of the appellant submitted that the pay scales of the
“Draughtsman Grade-I” and “Supervisor” being one and the
same, the incumbents in the said post were to be treated
equally and, therefore, the appellant was also entitled to the
benefits extended to the Supervisors under Government
Orders, issued from time to time. It was urged that on his
acquiring BE Degree, the appellant was eligible for
promotion to the post of Junior Engineer by conversion in
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terms of G.O. 563 dated 17 March, 1978 and then for re-
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designation under G.O.173 dated 8 April, 1981, as in the
case of Supervisors. It was argued that the appellant was
praying for parity in rank with the Supervisors and not
equality with them.
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13. Per contra, Mr. K. Rajendra Chowdhary, learned counsel
appearing on behalf of the TTD Management, supporting
the view taken by the Division Bench, submitted that
neither prior to the enforcement of 1989 Rules nor
thereafter the posts of Supervisors and Draughtsman
Grade-I were equivalent posts and/or there was any
functional or pay scale parity. It was only by virtue of
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G.O.1060 dated 24 October, 1989, that the employees in
the cadre of Draughtsman Grade-I, with BE Degree, became
eligible for recruitment to the post of Assistant Executive
Engineers. It was, thus, submitted that in the absence of
any rules, regulations or Government Orders in that behalf,
the appellant could not be appointed as Junior Engineer
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(now Assistant Executive Engineer) prior to 24 October,
1989. Learned counsel asserted that the cadres of
Draughtsman Grade-I and Supervisor being different, the
appellant could not claim any parity with the Supervisors
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prior to 26 October, 1989, when they were placed at par
with the Supervisors only as a feeder cadre for recruitment
to the post of Assistant Executive Engineer. Relying on the
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decision of this Court in State of Andhra Pradesh & Anr.
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Vs. K.S. Muralidhar & Ors. , learned counsel argued that
the crucial date for all intents and purposes is to be
reckoned on the basis of the actual date of appointment
and not on the date of acquiring the degree qualification.
14. Having bestowed our anxious consideration to the rival
submissions, in our view, there is no scope for interference
with the reasoning and the conclusion reached by the
Division Bench. It is evident from the afore-extracted order
of the learned Single Judge that he accepted the stand of
the appellant to the effect that the Draughtsman Grade-I
was at par with the Supervisor and, therefore, could not be
treated differently. According to the learned Judge, being
amenable to public law and constitutional processes, TTD
was obligated to treat the two classes of Supervisors and
Draughtsmen Grade-I similarly in the matter of extending
the benefit of conversion consequent to the acquisition of
graduation qualification by the Draughtsman Grade-I, as in
the case of Supervisors. We feel that in the light of the
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(1992) 2 SCC 241
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factual position as emerging from the material on record,
the learned Single Judge fell into an error in accepting the
plea of discrimination, for which there was no factual basis.
15. Since the plea of parity of Draughtsmen Grade-I with the
Supervisors had to be examined on the touchstone of
Articles 14 and 16 of the Constitution, the burden was
upon the appellant to establish discrimination by placing on
record cogent materials. For this purpose, the crucial factor
to be established is not only the functional parity of the two
cadres, but also the mode of recruitment, qualification and
the responsibilities attached to the two offices. All this
information is necessary to analyse the rationale behind the
State action in giving different treatment to two classes of
its employees and then determine whether or not an
invidious discrimination has been practised.
16. In the instant case, there is not even a whisper in the
pleadings on that aspect. On the contrary, it is pointed out
by the Division Bench that initially the scale of pay of
Draughtsman Grade-I was lower to the scale of pay of
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Supervisor. The scale of pay of Supervisor was 430-20-
650-25-800 whereas the scale of pay of Draughtsman
Grade-I was 400-18-590-20-715. The revised pay scale of
the Supervisor was 700-1200 and Draughtsman Grade-I
was 650-1100. In 1986 when pay scales were revised, the
scale of pay for the post of Draughtsman Grade-I and
Supervisor (Assistant Engineer) were made equal i.e. 1300-
60-1930-70-2630. Thus, the Division Bench found that the
two posts did not carry the same scale of pay initially.
Moreover, indubitably all the aforenoted Government
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Orders, starting 17 March, 1978, giving certain benefits to
graduate Supervisors did not refer to Draughtsman Grade-I.
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Even the decision taken by the TTD on 16 March, 1981,
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adopting G.O. Ms. No.563 dated 17 March, 1978, did not
refer to the Draughtsman Grade-I and applied only to the
Supervisors working in the TTD
(civil/electrical/mechanical) who had acquired graduate
qualification in engineering for appointment by transfer as
Junior Engineers in TTD. No one from the cadre of
Draughtsman raised any demand for extending similar
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benefit to them. It has also been noted by the Division
Bench that it was the policy of the Government to appoint
only Supervisors in Public Works (Irrigation Department),
who had acquired graduate qualification as Junior
Engineers. Under these circumstances, the Division Bench
found it difficult and in our opinion rightly, to accept the
submission of the appellant that being at par with the
Supervisors, he was entitled to all the benefits under the
Government Orders available to the graduate Supervisors.
17. It is well settled that equation of posts and determination
of pay scales is the primary function of the executive and
not the judiciary and, therefore, ordinarily courts do not
enter upon the task of job evaluation which is generally left
to expert bodies as several factors have to be kept in view
while evolving a pay structure. Being a complex matter, the
court will interfere only if there is cogent material on record
to come to a firm conclusion that a grave error has crept in
such an exercise and court's interference is absolutely
necessary to undo the injustice being caused. (See:
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Secretary, Finance Department & Ors. Vs. West Bengal
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Registration Service Association & Ors. )
18. In Devi Prasad & Ors. Vs. Government of Andhra
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Pradesh & Ors. , a Government order was questioned on
the ground of unreasonableness in the matter of giving
weightage for promotion between two categories of servants
inducted from different sources on the ground that the
weightage rule was violative of Article 14 of the
Constitution. Rejecting the challenge, this Court had said
that ultimately it is a matter of Government policy to decide
what weightage should be given as between two categories
of Government servants rendering somewhat similar kind of
service. There may be that one group would suffer from
hardship consequent to this rule and the weightage
conferred thereby. But mere hardship without anything
arbitrary in the rule does not cal1 for judicial intervention,
especially when it flows out of a policy which is not basically
illegal.
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1993 Supp (1) SCC 153
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1980 Supp SCC 206
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19. From a resume of facts set out hereinabove, it clearly
emerges that prior to 1989 the cadre of Draughtsman
Grade-I was treated as a distinct class inasmuch as they
even did not figure in the feeder cadre for recruitment to the
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post of Assistant Executive Engineer. It was only on 24
October, 1989, by virtue of G.O. Ms. No.1660, a channel of
promotion of Draughtsman Grade-I to the category of
Assistant Executive Engineer, on acquisition of graduate
qualification was created. Though it does appear that the
appellant had been pursuing his remedy for promotion as
Assistant Executive Engineer under the TTD Service Rules,
1978 but he always got limited relief to the extent that
direction was issued by the High Court for consideration of
his case, in terms of the rules existing at that relevant time.
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Evidently, when his writ petition was disposed of on 30
March, 1990 with a direction to the TTD Management to
consider his case on the basis of the rules, which were in
force at that relevant point of time, he felt satisfied and did
not challenge the said order further.
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20. For all these reasons, we do not see any infirmity in the
decision of the Division Bench warranting our interference
in the exercise of discretionary and equitable jurisdiction
under Article 136 of the Constitution. In our judgment, the
appeals have no substance and, therefore, deserve to be
dismissed.
21. For the reasons aforesaid, the appeals must fail and are
accordingly dismissed. There will, however, be no order as
to costs.
…………………………………J.
(C.K. THAKKER)
…………………………………J.
(D.K. JAIN)
NEW DELHI;
NOVEMBER 7, 2008.
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