Md. Usman & Ors. v. State of Andhra Pradesh & Ors.

Hegde, J.-The principal question that arises for decision lin this appeal by certificate is as to the vires of Rule 5 of the Andhra Pradesh Registration Subordinate Service Special Rules. to be hereinafter referred as "the rules". The High Court has struck down this rule on the ground that it is violative of Art. 14 of the Constitution. As a result of thait conclusion, it has also quashed the recruitment of some of the respondents made in March, 1965 for being J!OSted as Sub-Registrars Grade-II.

The petitioners as well as respondents No. 3 onwards in the Writ Petition were serving as clerks, either in the upper division or in the lower division, in the Registration and Stamps Depart-ment including the office of the Registrar Generail of Births, Deaths and Marriages and the Office of the Registrar of the Firms. Some of the respondents had been recruited by the Inspector General of Registration and Stamps, Andhra Pradesh for being appointed as Sub-Registrars. The petitioners challenged the validity of their recruitment on various grounds, by means of a Writ Petition under Art. 226 of the Constitution. But that peti-tion was summarily dismissed by a single Judge of the Andhra Pradesh High Court. 1 Thereafter, the matter was. taken up in appeal to a Division Bench of that Court. The Division Bench rejected all the contentions of the petitioners except one viz. that rule 5 of the rules is ultra vires Art. 14 of the Constitution. As a result of that conclusion it struck down the impugned recruit-ments. Only two questions were presented before us for decision viz:

(i) whether rule 5 of the rules is ultra vires Art. 14 of the Constitution; and

(ii) whether the recruitments maide are not in ac-cordance with the rules.

At this stage, it may be mentioned that the High Court has held that the impugned recruitments were made in accordance with the rules. In other words, the second question was decided against the petitioners.

We shall first take up the question ais to tlie vires of rule 5. The rules provide for the promotion to the posts of Sub-Registra£ as weJI as for recruitment to those posts. Rule 2 provides that a post of Grade-I Sub-Registrar should be fiJled by promotion from Grade-II Sub· Registrar. So far . as Grade II Sub-Regi-strars a.re concerned, they are to ·be appointed either by promotion from reserve Sub-Registrars or by ."recruitment by transfer from the clerks of the Registration and Stamps Department including the Office of the Registrar General of Births, Deaths and Mar-riages and the Office of the Registrar of the Firms." Rule S deails with qualifications for being recruited as Grade-II Sub-Registrars. That rule reads :

"Qualifications : --No person shaJI be eligible for appointment to the category mentioned below unless he possesses the qua.Jification shown.

Category and qualifications I. Sub-Registrars, II Grade :-(i) Must be a perma-nent clerk and must have served for a period of not less than seven years on duty as clerk in the Registration a,nd Stamps Department including the office of the Regi-strar-General of Births, Deaths and Marriages and the Office of the Registrar of Firms;

(ii) Must have passed the Registration Test; and (iii)(!) Must have taken at the finail examination at the end of his school or college course, one of the follow-ing languages, namely :-

Telugu, Hindi, Oriya, Kannada, Tamil, Urdu or Marathi, or

(2) Must have passed the Government Translation Test or the Second Class Language Test-Full Test.

"(iv) Must have passed the second class language Test-Full Test-in a language other than that taken for S. S. L. C. or University."

Preference shall be given to persons who, in addition to the qualifications specified in items (i) to (iii) possess a degree in Law of University in the State or any other equivalent qualification or a Pleadership Certificate in the First Grade or who have put in five years service in .---.--.

.: SUPRI!MB COURT REPORTS (1971)

SUPP. S.C.ll. A· ' the category 'of Upper Division Clerks in· the Registra-

tion Department." · · . . : . ~- · · It was uiged that this rule is violative Art. 14 of the Const't tion because though among the clerks there are U.D.Cs., as lVe!I ~­ L.D.<;s., yet all of them had ~e:n p~t in one. class for the purpose 0~ recruttment. . As per the Mtmstertal ,Servtce Rules the U.D.cs. ·had to be selected from the L. D. Cs. _after the L. D. Cs. had put in certain number of yea·rs of servtce and after they had ·passed the Accounts Test as well as the Registration Test. A. U. D. C. hol~s supe~i~r post to !~at of a L. D. C. His salary is ·higher and hts condtttons of service are better than that of a L. D. C . . Hence it was urged that as rule 5 treats U. D. Cs. as ·well as L. D. Cs. as equal for the purpose of recruitment for the post of a Grade II Sub-Registrar, the rule violates the doctrine of equality. According to the petitioners the equality doctrine i! attracted not only when equals are treated a,s unequals but also where uncquals are treated as equals. It was contended on behalf of the petitioners that a statutory provision ma.y offend Art. 14 of the Constitution both by finding differences where there are none and by making no difference where there is one. The pro-position of law advanced on behalf of the petitioners is unexcep-tionable. This Court ruled in Kunnathat Thathunni Moopil Nair v. The State of Kerala another(') that when the statute obliged every person who held land to pay tax at the ~at rate prescribed, whether or not he made any income out of the pro· pcrty, or whether or not the property was capable of yieldin~ any income, there being no attempt at classification in the provl- ~ions of the statute, the Statute denied equality before law because of lack of classification. Similar views have been expressed by this Court in other decisions. It is not necessary to refer ·to those decisions. .

On the other hand it wa-s argued on behalf of the contesting respondents. that before considering the vires of rule 5, we mU;St first ascertatn the reason behind the rule to find out whether 10 fact there is discri":li!lation. The contesting respondents do not deny that the posJ!ton of a U. D. C. i~ superior to tl1at of a L. D. C. But accordmg to them it became necessary for the State to pool together the U. D. Cs. a-s well as the L. D. Cs. for the purpose of recruitment in question for the following reasons:-

The Grade If Sub-Registrars are in a statc~ise cadre whereas the ~- D. Cs. and I?· L. D. Cs. belong to a district-wise cadre. Pro-n "hohon from . L. C to U. D. C. is made district-wise. The

c ances of pr?mot10n from L 0. c. to u. D. c. in one distrtct materially difiers from ooother district. It depends on the number of posts available in a particular district. In one district a L. D. C. may be promoted as· a U. D. C. as soon as he puts ia a service of 5 yeacs, whereas in another district a L. D. C. 'POi· sessing the same or better qualifications as well as efficiency may not be promoted as a U. D. C. for 15 years or more. That being so while making recruitment to a state-wis~ cadre it W86 not possible for the State to make distinction between the L. D. Cs. and the U. D. Cs. The on,Jy reasonable basis that could have been adopted was to .treat the U. D.1 Cs. aind L. D. Cs. as one class for the purpose of recruitment. But. at, the same time the rule provides for giving preference to the U. D. Cs. who had put in a service of ·5 years or more. There is force in these contentions though there may be some anomaly in the ca.se of L. D. Cs. and U. D~ Cs. serving in the saime district. But that anomaly cannot be avoided. The validity of a rule has to be judged by assessi.ng its over-all effect and not by picki'ng up exceptional cases. What. the court hrui to see is whether the cla.ssification inade is a just one taking all aspects into considera-tion. ' · · /

On the facts before us we are unable to agree tha! for the gl!r· pose of recruitment with which we are concerned herein -tile State should have classified the U. D. Cs. and L. D. Cs. separately. If the State had treated the U. D. Cs. a6 being superior to the L. D. Cs. for the pUrpose of that recruitment it ~ould have resul- ·ted in a great deal of injustice to a large section of the clerks. The fortuitous circumstance of an officer in a particulac district becoming a U. D. C. would have given him an undue advantage over his seniors who might have been as efficient or even more e!licient than himself, merely because they chainced to serve in some other district. For the reasons mentioned above, we do not think that in the present case the State can be said to have treated unequals as equals. The rule of equaility is intended to advance justice by avoiding discrimination. In our opinion the High Court lfy overlooking the reason behind Rule 5 came to the erroneous conclusion that the said rule violated Art. 14 of the Constitution.

We agree with the High Court thait there is no substance in the petitioners' contention that the impugned recruitments were not made in accordance with Rule 5. It is clear from 'the affidavit filed on behalf of the State and the Registrar that the Registra.r had considered the case of all the qualified clerks, but the Registrar thought that the best basL for recruitment was to preparn ·a list ' 0 1; the clerks. U. D. Cs-as well as L. D. Cs. -arrangi:.g the cs in the order of seniority as L. D. Cs. and thereaifter con. ., each name and. reject the unfit. In other words, the selection was made on the basis of seniority-cum-merit --the seniors among the clerks were selected subject to suitability. Those persons who were entitled to be given preference under the rules were considered separately and recruited at the first instance. Only thereafter the other recruitments were ma.de. The rules do not prescribe that the recruitment should be made on the basis of merit and merit alone. Bearing in mind the fact that the recruitment with which we are concerned in this case is a recruitment by transfer which means recruitment from among the ministerial offieial$, the method adopted by the Registrar appears to us to be the most reasonable one.

In the result this appeal is allowed, the order of the Division Bench of the High Court is set aside and tha.t of the single judge restored. In the circumstances of the case, we direct the parties to bear their own costs in all the courts.

CML APPELLATE JURISDICTION : Civil Appeal No. 153 of 650 SUPREME COURT RBPORTS [1971) SUPP. s.c.a.

Appeal from the judgment and order dated October 21, 1970 of the Andhra Pradesh High Court in Writ Appea.l No. 240 of 1968.

B. V. Subrahamanyam and G. Narayana Rao, for the appellants.

P. Ram Reddy and P. P. Rao, for respondents Nos. 1 and 2. M. Natesan, Venkataramhiah and K. Jayaram, for respon-dents Nos. 3 to 21.