Full Judgment Text
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PETITIONER:
B. VENKATA REDDY AND OTHERS ETC.
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH AND OTHERS
DATE OF JUDGMENT08/08/1983
BENCH:
VARADARAJAN, A. (J)
BENCH:
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 tho 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
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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
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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 like wise 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
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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.
JUDGMENT:
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
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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
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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
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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 Munici-
pality....."
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
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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
in the scale of Rs. 200-500 and that third class Post-
Graduates would be allowed only the pay drawn by them before
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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
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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
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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 over all 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
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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 then 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
appoint ed 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 Govern-
ment 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
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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 has 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
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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 alt 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 then
five years of service, working as Post
Graduate Assistants;
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(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
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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.
Some time 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,
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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,
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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. lt 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 fesh 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,
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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
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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 negatived 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
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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
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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 interpreation 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
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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
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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
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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
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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
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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.
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