# P. SUDHAKAR RAO & ORS v. U. GOVINDA RAO & ORS

- **Citation:** [2013] 13 S.C.R. 540
- **Court:** Supreme Court of India
- **Decided:** 2013-07-03
- **Case number:** Writ Petition Nos. 5922 & 6360 of 1999
- **Bench:** R.M. Lodha, Madan B .. Lokur, Kurian Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-sudhakar-rao-ors-v-u-govinda-rao-ors-28983
- **Pages:** 37

## Headnote

Service Law - Seniority -
Weightage of service for
c purposes of seniority - Andhra Pradesh Engineering Service
-
- Grant of retrospective seniority benefits to Supervisors on
their appointment as Junior Engineers - Challenged - Held:
Retrospective operation can be given to statutory rules - But,
retroactivity must still meet the test of Arts. 14 and 16 of the
D Constitution and must not adversely trench upon the
entitlement of seniority of others - Retrospective seniority
cannot be given to an employee from a date wflen he was not
even born in the cadre - So also, seniority cannot be given
with retrospective effect so as to adversely affect others -
E Injustice ought not to be done to one set of employees in
order to do justice to another set - On facts, grant of
retrospective seniority to Supervisors adversely impacted on
the promotion chances of existing Junior Engineers by
~
bringing them down in seniority - This was impermissible -
...
F
To pass the scrutiny of Art.14 of the Constitution, seniority of
Supervisors to be reckoned only from the date on which they
satisfied all the real and objective procedural requirements
of the Service Rules and the law laid down by Supreme Court
-
This did not happen in the present appeals creating a
situation of unreasonableness and unfairness - Some of the
-.,.. .
G Supervisors were given retrospective seniority on the date
when they were not even eligible for appointment as Junior
Engineers - This was impermissible, more particularly when
there was no indication of the vacancy position, that is, whether
H
540
---.y
P. SUDHAKAR RAO v. U. GOVINDA RAO
541
the Supervisors could be adjusted in the grade of Junior
A
Engineers from the date on which they were given notional
retrospective seniority - Grant of retrospective seniority to
Supervisors on their appointment as Junior Engineers
violated Art. 14 of the Constitution - Weightage of service
given to the Supervisors could be taken advantage of only
B
for the purpose of eligibility for promotion - It could not be
utilized for obtaining retrospective seniority over and above
the existing Junior Engineers - Constitution of India, 1950 -
Arts. 14 and 16.
Service Law - Seniority - Weightage of service for C
purposes ofpromotion and weightage of service for purposes
of seniority in a grade - Distinction between.
Engineers in the State of Andhra Pradesh were
either in the Andhra Pradesh Engineering Subordinate
Service or in the Andhra Pradesh Engineering Service.
D
The Andhra Pradesh Engineering Subordinate Service
consisted, inter alia, of Junior Engineers who possessed
a degree in engineering and Supervisors who possessed
a diploma in engineering. A Junior Engineer or a
Supervisor was eligible for appointment by transfer as an
E
Assistant Engineer in the Andhra Pradesh Engineering
Service as it existed. This continued to be so till the
Special Rules for the Andhra Pradesh Engineering
Service were promulgated by issuance of G.O.Ms. No.
285 PWD dated 22.2.1967.
F
With effect from 22.2.1967, the Andhra Pradesh
Engineering Service consisted of five categories of
officers, the juniormost being Category 5 - Assistant
Engineer. Later, by issuance of G.0.Ms No. 1149 dated
5.11.1973 a sixth category of officers was included, G
namely, Junior Engineer with effect from 28.2.1972. The
inclusion of the post of Junior Engineer in the Andhra
Pradesh Engineering Service resulted in its consequent
exclusion from the Andhra Pradesh Engineering
Subordinate Service. The effect of this was that a separate
H
542
SUPREME COURT REPORTS
[2013) 13 S.C.R.
A cadre of Junior Engineers, distinct from erstwhile Junior
Engineers/Supervisors was formed. This meant that
despite having an engineering degree, Supervisors were
not eligible for appointment as Junior Engineers on
transfer. However, the mode of rec~uitment for the next
B higher post of Assistant Engineer was by way of direct
recruitment, by promotion of a Junior Engineer having
not less than 5 years service in the

## Text

_Characters 0–39,866 of 68,065. This is a partial read: ask again with offset=39866 for what follows._

[2013] 13 S.C.R. 540
A
P. SUDHAKAR RAO & ORS.
v.
U. GOVINDA RAO & ORS.
(Civil Appeal Nos 1712-1713 of 2002)
B
JULY 3, 2013
[R.M. LODHA, MADAN B .. LOKUR AND
KURIAN JOSEPH JJ.]
Service Law - Seniority -
Weightage of service for
c purposes of seniority - Andhra Pradesh Engineering Service
-
- Grant of retrospective seniority benefits to Supervisors on
their appointment as Junior Engineers - Challenged - Held:
Retrospective operation can be given to statutory rules - But,
retroactivity must still meet the test of Arts. 14 and 16 of the
D Constitution and must not adversely trench upon the
entitlement of seniority of others - Retrospective seniority
cannot be given to an employee from a date wflen he was not
even born in the cadre - So also, seniority cannot be given
with retrospective effect so as to adversely affect others -
E Injustice ought not to be done to one set of employees in
order to do justice to another set - On facts, grant of
retrospective seniority to Supervisors adversely impacted on
the promotion chances of existing Junior Engineers by
~
bringing them down in seniority - This was impermissible -
...
F
To pass the scrutiny of Art.14 of the Constitution, seniority of
Supervisors to be reckoned only from the date on which they
satisfied all the real and objective procedural requirements
of the Service Rules and the law laid down by Supreme Court
-
This did not happen in the present appeals creating a
situation of unreasonableness and unfairness - Some of the
-.,.. .
G Supervisors were given retrospective seniority on the date
when they were not even eligible for appointment as Junior
Engineers - This was impermissible, more particularly when
there was no indication of the vacancy position, that is, whether
H
540
---.y
P. SUDHAKAR RAO v. U. GOVINDA RAO
541
the Supervisors could be adjusted in the grade of Junior
A
Engineers from the date on which they were given notional
retrospective seniority - Grant of retrospective seniority to
Supervisors on their appointment as Junior Engineers
violated Art. 14 of the Constitution - Weightage of service
given to the Supervisors could be taken advantage of only
B
for the purpose of eligibility for promotion - It could not be
utilized for obtaining retrospective seniority over and above
the existing Junior Engineers - Constitution of India, 1950 -
Arts. 14 and 16.
Service Law - Seniority - Weightage of service for C
purposes ofpromotion and weightage of service for purposes
of seniority in a grade - Distinction between.
Engineers in the State of Andhra Pradesh were
either in the Andhra Pradesh Engineering Subordinate
Service or in the Andhra Pradesh Engineering Service.
D
The Andhra Pradesh Engineering Subordinate Service
consisted, inter alia, of Junior Engineers who possessed
a degree in engineering and Supervisors who possessed
a diploma in engineering. A Junior Engineer or a
Supervisor was eligible for appointment by transfer as an
E
Assistant Engineer in the Andhra Pradesh Engineering
Service as it existed. This continued to be so till the
Special Rules for the Andhra Pradesh Engineering
Service were promulgated by issuance of G.O.Ms. No.
285 PWD dated 22.2.1967.
F
With effect from 22.2.1967, the Andhra Pradesh
Engineering Service consisted of five categories of
officers, the juniormost being Category 5 - Assistant
Engineer. Later, by issuance of G.0.Ms No. 1149 dated
5.11.1973 a sixth category of officers was included, G
namely, Junior Engineer with effect from 28.2.1972. The
inclusion of the post of Junior Engineer in the Andhra
Pradesh Engineering Service resulted in its consequent
exclusion from the Andhra Pradesh Engineering
Subordinate Service. The effect of this was that a separate
H
542
SUPREME COURT REPORTS
[2013) 13 S.C.R.
A cadre of Junior Engineers, distinct from erstwhile Junior
Engineers/Supervisors was formed. This meant that
despite having an engineering degree, Supervisors were
not eligible for appointment as Junior Engineers on
transfer. However, the mode of rec~uitment for the next
B higher post of Assistant Engineer was by way of direct
recruitment, by promotion of a Junior Engineer having
not less than 5 years service in the grade and by transfer
of a Supervisor having a minimum service of 10 years in
the grade. To remedy this situation, in the case of
c Supervisors, who had obtained an engineering degree
prior to 28.2.1972, the State Government issued G.O.Ms
No.893 dated 15.6.1972 inserting a note being Note 2
under Rule 4 of the Andhra Pradesh Engineering Service
Rules. Through this Note, a Supervisor was given a
0 weightage of 50% of service rendered by him on his
acquiring an engineering degree while in service. The
weightage was available as if the service had been
rendered by the Supervisor in the post of Junior Engineer.
The weightage was, therefore, available for inclusion for
E appointment to - the post of Assistant Engineer.
Apparently to overcome the anomaly that there was
no provision for benefit of weightage relating to those
Supervisors who had obtained an engineering degree
post 28.2.1972, the State Government issued G.O.Ms
F No.451 dated 10.6.1976 containing a decision that
Supervisors who have acquired a graduate qualification
while in service should be appointed temporarily as
Junior Engineers (prospectively) with immediate effect.
This decision was implemented. The implementation of
G G.O.Ms No.451 resulted in consequential orders relating
to weightage of service rendered and the inter se
seniority of Supervisors vis-a-vis Junior Engineers as
issued through G.O.Ms No.559 dated 18.7.1977.
As mentioned in G.O.Ms No. 559 dated 18.7.1977,
H necessary amendments in the Special Rules for the
~-
P. SUDHAKAR RAO v. U. GOVINDA RAO
543
B
Andhra Pradesh Engineering Service were carried out by
A
issuance on 15.2.1983 of the impugned G.O.Ms No. 54
with effect from 28.2.1972. This G.O.Ms (i) had
retrospective operation; (ii) statutorily regularized
recruitment by transfer "of Supervisors of the Andhra
Pradesh Engineering Subord.inate Service who had
acquired the B.E. or A.M.l.E. (India) qualification and who
were approved probationers in that category." and (iii)
inserted Note -3 below Rule 4 of the Andhra Pradesh
Engineering Service Rules which dealt with issues of
weightage given to the service rendered by a Supervisor c
and his/her entitlement to seniority.
The Tribunal upheld the validity of the impugned
G.O.Ms No. 54 dated 15.2.1983 holding that retrospective
operation could be given to the G.O.Ms and there was no
illegality in this regard; and further that the G.O.Ms merely
D
gave statutory recognition to a situation existing through
the executive order contained in G.O.Ms No. 559 dated
18.7.1977. The Junior Engineers then came up before the
High Court. The High Court held that the right of seniority
of the Junior Engineers could not be taken away by
E
applying the impugned G.O.Ms retrospectively; and that
weightage of past service can be given to the
Supervisors only from the date of appointment and that
the impugned rule violated Article 14 and 16 of the
Constitution insofar as it took away the vested right of
seniority of Junior Engineers vis-a-vis Supervisors.
Hence the present appeals by the Supervisors.
F
Answering the Reference and dismissing the
appeals, the Court
HELD:1. There is a clear distinction between
G
weightage given for years of service rendered by an
employee for purposes of promotion and weightage
given for years of service rendered by an employee for
purposes of seniority in a grade. While the first concerns
eligibility for promotion to a higher post, the other
H
544
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A concerns seniority for being considered for promotion to
a higher post. [Para 1] [547-E]
P. Sudhakar Rao v. U. Govinda Rao (2007) 12 SCC 148;
Devi Prasad v. Govt. of A.P. [1980 (Supp) SCC 206]; State
of A.P. v. K.S. Mura/idhar [(1992) 2 SCC 241; G.S. Venkat
B Reddy v. Govt. of A.P.[1993 Supp (3) SCC 425]; K.
Narayanan v. State of Kamataka [1994 Supp (1) SCC 44];
StateofGujaratv. C.G. Oesai[(1974) 1SCC188]; B.S. Yadav
v. State of Haryana 1980 Supp SCC 524: 1981 SCR 1024;
U. Govinda Rao v. Government of Andhra Pradesh 2002 (1)
C ALO 347 = 2002 (1) ALT 713; K.C. Arora v. State of Haryana
(1984) 3 SCC 281: 1984 (3) SCR 623; P.O. Agarwal v. State
of U.P. (1987) 3 sec 622: 1987 (3} SCR 427 and K. v .
•
Subba Rao v. Government of A.P. (1988) 2 SCC 201: 1988
(2) SCR 1118 - referred to.
D
2.1. There is no doubt that retrospective operation
can be given to statutory rules such as the Andhra
Pradesh Engineering Service Rules. But, the retroactivity
must still meet the test of Article 14 and Article 16 of the
Constitution and must not adversely trench upon the
E entitlement of seniority of others. [Para 57] [569-D]
2.2. Retrospective seniority cannot be given to an
employee from a date when he was not even born in the
cadre. So also, seniority cannot be given with
retrospective effect so as to adversely affect others.
F Seniority amongst members of the same grade must be
counted from the date of their initial entry into the grade.
When a quota is provided for, then the seniority of the
employee would be reckoned from the date when the
vacancy arises in his/her quota and not from any anterior
G date of promotion or subsequent date of confirmation.
Injustice ought not to be done to one set of employees
in order to do justice to another set. However, the mere
existence of a vacancy is not enough to enable an
employee to claim seniority. The date· of actual
H appointment in accordance with the required procedure
P. SUDHAKAR RAO v. U. GOVINDA RAO
545
becomes important in such a case. [Paras 58, 59 and 60]
A
[569-F; 570-E-F; 571-D]
State of Bihar v. Akhouri Sachindra Nath 1991 Supp (1)
SCC 334: 1991 (2) SCR 410; Keshav Chandra Joshi v.
Union of India 1992 Supp (1) SCC 272: 1990 (2) Suppl.
SCR 573; Uttaranchal Forest Rangers' Assn. (Direct Recruit)
B
v. state of U.P. (2006) 10 sec 346: 2006 (6) Suppl. SCR
609; State of Uttaranchal v. Dinesh Kumar Sharma (2007) 1
SCC 683: 2006 (10) Suppl. SCR 1; Nani Sha v. State of
Arunachal Pradesh (2007) 15 SCC 406: 2007 (6) SCR 1027;
Pawan Pratap Singh v. Reevan Singh (2011) 3 SCC 267;
C
2011 (2) SCR 831 and Direct Recruit Class fl Engg. Officers'
Assn. v. State of Maharashtra, (1990) 2 SCC 715:: 1990 (2)
SCR 900 - relied on.
Asis Kumar Samanta v. State of West Bengal (2007) 5
sec 800: 2007 (8) SCR 329 - referred to.
D
3.1. The facts of the present appeals show that at
least some of the Supervisors were given retrospective
seniority on the date when they were not even eligible for
appointment as Junior Engineers. This is impermissible.
In addition as pointed out by the High Court, there is no
indication of the vacancy position, that is, whether the
Supervisors could be adjusted in the grade of Junior
Engineers from the date on which they were given
notional retrospective seniority. There is also no
indication whether the quota of vacancies for
Supervisors was adhered to as on the date on which they
were given notional retrospective seniority. This is an -
important factor to be considered. Finally, it is quite clear
that the grant of retrospective seniority to Supervisors
has adversely impacted on the promotion chances of G
Junior Engineers by bringing them down in seniority.
This too is impermissible. [Para 63] [574-F-H; 575-A]
E
F
3.2. To pass the scrutiny of Article 14 of the
Constitution, the seniority of Supervisors should be
H
546
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A reckoned only from the date on which they satisfied all
the real and objective procedural requirements of the
Andhra Pradesh Engineering Service Rules and the law
laid down by this Court. This has not happened in the
present appeals creating a situation of unreasonableness
B and unfairness. [Para 64] [575-B-C]
3.3. There is no occasion for interfering with the view
taken· by the High Court to the effect that the grant of
retrospective seniority to Supervisors on their
appointment as Junior Engineers violates Article 14 of the
C Constitution. The weightage of service given to the
Supervisors can be taken advantage of only for the
purpose of eligibility for promotion to the post of
Assistant Engineer. The weightage cannot be utilized for
obtaining retrospective seniority over and above the
. o existing Junior Engineers. [Para 66] [575-E-F]
Case Law Reference:
c2001) 12 sec 148
referred to
1980 (Supp) SCC 206]
referred to
E
(1992) 2 SCC 241
referred to
F
G
H
1993 Supp (3) sec 425
1994 Supp (1) sec 44
(1'974) 1 sec 188]
1981 SCR 1024
2002 (1) ALT 713
1984 (3) SCR 623
1987 (3) SCR 427
1988 (2) SCR 1118
1991 (2) SCR 410
referred to
referred to
referred to
referred to
referred to
, referred to
referred to
referred to
relied on
1990 (2) Suppl. SCR 573 relied on
2006 (6) Suppl. SCR 609 relied on
Para 2
Para 2
Para 2
Para 2
Para 2
Para 2
Para 20
Para 24
Para 27
Para 27
Para 27
Para 58
Para 59
Para 59
P. SUDHAKAR RAO v. U. GOVINDA RAO
547
..... ·-f2006 (10) Suppl. SCR 1
relied on
Para 60
A
2007 (6) SCR 1027
relied on
Para 60
2011 (2) SCR 831
relied on
Para 61
1990 (2) SCR 900
relied on
Para 62
2007 (8) SCR 329
referred to
Para 67
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No:
1712-1713 of 2002 .
....
From the Judgment & Order dated 23.11.2001 of the High
Court of Andhra Pradesh at Hyderabad in Writ Petition Nos.
5922 & 6360 of 1999.
c
H.S. Gururaja Rao, Koka Raghav Rao, Y. Raja Gopala Rao,
Y. Vismai Rao, Hitendera Nath Rath, G.N. Reddy, Debojit
Bonkakati, J.H. Manohar Rao, Praveen Kumar Pandey, R.S.
Krishnan, Aditya Kumar, D. Mahesh Babu for the appearing
D
parties.
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. 1. There is a clear distinction
between weightage given for years of service rendered by an
E
employee for purposes of promotion and weightage given for
yea{s of service rendered by an employee for purposes of
seniority in a grade. While the first concerns eligibility for
-
~-
promotion to a higher post, the other concerns seniority for
being considered for promotion to a higher post.
2. To consider the validity of weightage for seniority
F
purposes and its impact on the seniority of other employees,
the following question has been referred to a larger Bench in
these appeals. The reference order is reported as P. Sudhakar
~-t
Rao v. U. Govinda Rao, (2007) 12 SCC 148.
G
"Whether the decision given in Devi Prasad v. Govt. of A.P.
[1980 (Supp) SCC 206]and State ofA.P. v. K.S.
Muralidhar [(1992) 2 SCC 241] laid down the correct law
or the decision given in G.S. Venkat Reddy v. Govt. ofA.P.
[1993 Supp (3) s·cc 425), K. Narayanan v. State of H
548
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
Karnataka [1994 Supp (1) SCC 44] and State of Gujarat
v. C.G. Desai [(1974) 1 sec 188] laid down the correct
proposition of law?"
3. It appears to us that this question ought not to be
answered in the narrow confines in which it is framed, nor should
B it be answered on the basis of the limited submission noted in
the reference order relating to "the validity of the rule by which
retrospective seniority benefit was given to the Junior Engineers
by G.O.Ms No. 54 Irrigation (Service IV-2) dated 15.2.1983."
The question has larger implications and we propose to answer
C it keeping the broad canvas in mind. We also propose, in this
light, to answer the question on merits of these appeals,
namely, whether, on appointment as a Junior Engineer,
weightage of service given to a Supervisor can be taken into
account for fixing his seniority as a Junior Engineer, thereby
o effectively refixing the seniority with retrospective effect.
Factual background:
4. Initially, the State of Andhra Pradesh had a single
engineering department. This was subsequently. broken-up into.
several departments but we are not concerned with that. What
E we are concerned with is that at all material times, engineers "'
in Andhra Pradesh were either in the.Andhra Pradesh
Engineering Subordinate Service or in the Andhra Pradesh
Engineering Service.
F
5. The Andhra Pradesh Engineering Subordinate Service
consisted, inter alia, of Junior Engineers who possessed a
degree in engineering and Supervisors who possessed a
diploma in engineering. Upon recruitment, both categories of
engineers were placed in the same pay scale but Junior
G Engineers, by virtue of a better academic qualification, had a
higher starting pay while Supervisors were placed in the
minimum of the pay scale. Functionally, both had more or less
similar duties to perform. A Supervisor could, while in service,
obtain an engineering degree and if he did so, he would be
designated as a Junior Engineer and given a higher pay in the
H
P. SUDHAKAR RAO v. U. GOVINDA RAO
549
[MADAN B. LOKUR, J.]
'" 7'tsame pay scale .
A
•
6. A Junior Engineer or a Supervisor was eligible for
appointment by transfer as an Assistant Engineer in the Andhra
Pradesh Engineering Service as it existed. This continued to
be so till the Special Rules for the Andhra Pradesh Engineering
B
Service were promulgated by issuance of G.O.Ms. No. 285
PWD dated 22.2.1967. -
.....
7. With effect from 22.2.1967 the Andhra Pradesh
Engineering Service consisted of five categories of officers, the
juniormost being Category 5 - Assistant Engineer. As c
___,..
mentioned above, a Junior Engineer or a Supervisor was
eligible for appointment by transfer as an Assistant Engineer
in the Andhra Pradesh Engineering Service. The mode of
recruitment was:
(a)
By direct recruitment (or)
D
(b)
By recruitment by transfer of
(i) • Junior Engineers and Supervisors of the Andhra
Pradesh Engineering Subordinate Service;
E
. (ii)
Draughtsman, Special Grade and Draughtsman
Grade-I of the Andhra Pradesh Engineering
- >-
Subordinate Service.
8. Later, by issuance of G.O.Ms No. 1149 dated
F
5.11.1973 a sixth category of officers was included in the
Andhra Pradesh Engineering Service, namely, Junior Engineer
with effect from 28.2.1972. This was declared a gazetted post.
The inclusion of the post of Junior Engineer in the Andhra
-~1'
Pradesh Engineering Service resulted in its consequent
G
exclusion from the Andhra Pradesh Engineering Subordinate
Service. The effect of this was that a separate cadre of Junior
Engineers, distinct from erstwhile Junior Engineers/Supervisors
was formed.
H
550
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
9. The mode of recruitment for Junior Engineers in the
Andhra Pradesh Engineering Service was now by direct
recruitment. This meant that despite having an engineering
degree, Supervisors were not eligible for appointment as Junior
Engineers on transfer. However, the mode of recruitment for the
B next higher post of Assistant Engineer was by way of direct
recruitment, by promotion of a Junior Engineer having not less
than 5 years service in the grade and by transfer of a
Supervisor having a minimum service of 10 years in the grade.
10. To remedy this situation in the case of Supervisors who
C had obtained an engineering 9egree prior to 28.2.1972 the
State Government issued G.O.Ms No. 893 dated 15.6.1972
inserting a note being Note 2 under Rule 4 of the Andhra
Pradesh Engineering Service Rules. Through this Note, a
Supervisor was given a weightage of 50% of service rendered
D by him on his acquiring an engineering degree while in service.
The weightage was subject to a maximum period of 4 years
service rendered prior to acquisition of the degree. The
weightage was available as if the service had been rendered
by the Supervisor in the post of Junior Engineer. The weightage
E was, therefore, available for inclusion for appointment to the
post of Assistant Engineer. However, the weightage was
subject to certain conditions, one of them being that it was
available to only those Supervisors who had obtained a degree
F
G
H
prior to 28.2.1972.
11. Note 2 below Rule 4 (as inserted) in the Andhra
Pradesh Engineering Service Rules reads as follows:
"Supervisors who a,cquire, while in service, B.E., A.M.l.E.
(India) qualification shall be entitled to count 50% of their
service rendered as Supervisor prior to acquisition of such
qualification, subject to a maximum limit of 4 years as if it
had been in the post of Junior Engineers for the purpose
of consideration for appointment by transfer to the post of
Assistant Engineer from Junior Engineer and subject to the
following conditions:
P. SUDHAKAR RAO v. U. GOVINDA RAO
551
•
[MADAN B. LOKUR, J.J
,_ ']<--
(1) They should render a minimum service of one
A
year after acquisition of B.E. or A.M.l.E. (India)
qualification:
(2) They should be considered to have been placed
below the list of the Junior Engineers of the year
B
after giving weightage as indicated above.
(3) They should put in a total service of 5 years as
Junior Engineer inclusive of the period given as
weightage.
(4) The benefit of weightage given above shall be c
given effect for the purpose of all selections that are
made by Public Service Commission pertaining to
the years from 2nd January, 1968 onwards till 28th
February, 1972."
D
(Note: Clause (4) was subsequently amended but
we are not concerned with the amendment].
12. The benefit of weightage granted to Supervisors by
G.O.Ms No. 893 dated 15.6.1972 was challenged as being
E
arbitrary, unreasonable and violating Article 14 of the
Constitution. This Court rejected the challenge in Devi Prasad
,.__
and held that the benefit of weightage was a matter of
government policy which needed no interference since it was
not unreasonable or arbitrary.
F
13. In what appears to be an oblique reference to loss of
promotional chances that Junior Engineers may have to suffer
due to weightage being given to Supervisors this Court
~ --yobserved as follows:
G
"Perhaps there is force in the submission of Dr. Chitale
that the Junior Engineers have to face adversity in the
matter of promotions. All that we can do is to emphasise
that this being a matter of government policy, the State will
receive any representation that may be made for change
H
552
A
B
c
SUPREME COURT REPORTS
[2013] 13 S.C.R.
of policy from the Junior Engineers and consider whether
any such change in the policy is justified in the
circumstances of the case. In so doing, there is no doubt
that the other affected groups will also be heard because
administrative fair play is basic to satisfaction of
government servants as a class. We say no more nor do
we indicate that in our view there is any hardship. We only
mean to say that government will remove hardships if by
modification of policy it can achieve this result.
Undoubtedly, in this process, both sides will have to be
heard not as a rule of law but as a part of administrative
fair play."
14. As mentioned above, the benefit of weightage was
available to only those Supervisors who had obtained an
engineering degree before 28.2.1972. There was no provision
D relating to those who had obtained a degree post 28.2.1972.
15. Apparently to overcome this anomaly, and as a result
of representations made, the State Government issued G.O.Ms
No. 451 dated 10.6.1976 containing a decision that
E Supervisors who have acquired a graduate qualification while
in service should be appointed temporarily as Junior Engineers
(prospectively) with immediate effect. This decision was
implemented.
16. The implementation of G.O.Ms No. 451 resulted in
F consequential orders relating to weightage of service rendered
and the inter se seniority of Supervisors vis-a-vis Junior
Engineers. The consequential orders were issued through
G.0.Ms No. 559 dated 18.7.1977. These orders provided as
follows:
G
H
"2. Accordingly, matters relating to weightage, seniority,
etc., have been examined by the government and the
following orders are issued:-
(1) Supervisors who acquire graduate qualification
•
"' -..,,. ..
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.. ..-...
·-*
P. SUDHAKAR RAO v. U. GOVINDA RAO
553
[MADAN B. LOKUR, J.]
rnay be appointed as Junior Engineers on or after
A
February 28, 1972, subject to the availability of
vacancies in the cadre of Junior Engineers.
They will not be entitled for appointment as Junior
Engineers automatically from the date of acquisition
of degree qualification;
B
(i1) A Supervisor, who is appointed as Junior Engineer,
shall be entitled to count one-third of the service rendered
by him as Supervisor, before his appointment as Junior c
Engineer, subject to a maximum of four years, for the
purpose of computing the service as Junior Engineer,
which will render him eligible for consideration for
promotion as Assistant Engineer.
(ii1) The seniority of the Supervisors, who are appointed
D
as Junior Engineers, shall be fixed with reference to the
notional date arrived at after giving weightage of service;
(iv) A Supervisor, who is appointed as Junior Engineer,
shall put in a minimum service of one year as Junior
E
Engineer to become eligible for promotion as Assistant
Engineer;
(v) No Supervisor shall ordinarily be eligible for
appointment as Junior Engineer unless he has not in a
minimum service of three years as Supervisors. A
F
Supervisor with less than three years of service, who is
appointed as Junior Engineer for any special reason, shall
not be entitled to any weightage for his past service.
3. Necessary amendment to the Special Rules for the
G
Andhra Pradesh Engineering Service will be issued
separately ....... "
17. The interpretation of G.O.Ms No. 559 dated 18.7.1977
came up for consideration before this Court (through the State
Administrative Tribunal) in Muralidhar. This Court dealt with the
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[2013) 13 S.C.R.
A issue of seniority and concluded as follows:
"(i) The weightage of four years in respect of
upgraded Junior Engineers as provided in G.O.Ms. No.
559 has to be reckoned from the date of appointment and
8
not the date of their acquiring the degree qualification;
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(ii) On the basis of that notional date, their inter se
seniority has to be fixed;
(iii) The regularisation of the degree holders Junior
Engineers who passed the SOT by giving retrospective
effect cannot be held to be illegal, and their seniority
among themselves shall be subject to the order of ranking
given by the Public Service Commission on the basis of
the SQT;
(iv) The government shall prepare a common
seniority list of the degree holders Junior Engineers and
the upgraded Junior Engineers on the above lines and that
list shall be the basis for all the subsequent promotions.
Promotions, if any, already given shall be reviewed and
readjusted in accordance with the said seniority list; and
(v) The approval of the Public Service Commission
in respect of these appointments and their seniority thus
fixed need not be sought at this distance of time."
Impugned G.O.Ms No. 54 dated 15.2.1983:
18. As mentioned in G.O.Ms No. 559 dated 18.7.1977
necessary amendments in the Special Rules for the Andhra
Pradesh Engineering Service were carried out by issuance on
G 15.2.1983 of the impugned G.O.Ms No. 54 with effect from
r-,
28.2.1972. This G.O.Ms is significant for three reasons: (i) it
had retrospective operation; (ii) it statutorily regularized
recruitment by transfer "of Supervisors of the Andhra Pradesh
' Engineering Subordinate Service who have acquired the B.E.
H or A.M.l.E. (India) qualification and who are approved
P. SUDHAKAR RAO v. U. GOVINDA RAO
555
[MADAN B. LOKUR, J.]
..,.._
probationers in that category." and (iii) it inserted Note 3 below
A
Rule 4 of the Andhra Pradesh Engineering Service Rules. This
Note dealt with issues of weightage given to the service
rendered by a Supervisor and his/her entitlement to seniority.
The Note reads as follows:
"(3) A Supervisor who is appointed by transfer as Junior
B
Engineer on or after 28.2.1972 shall be entitled to count I/
3rd of the service rendered as Supervisor before
*
appointment as Junior Engineer subject to a maximum of
4 years weightage for the purpose of computing the c
-
service as Junior Engineer, which will render eligible for
.·~
consideration for promotion as Assistant Engineer, and
subject to the following conditions:-
(i) The seniority of a Supervisor, who is appointed
~-
as Junior Engineer shall be fixed in the category of Junior
D
Engineers with reference to the notional date arrived at
after giving weightage of service aforesaid;
(ii) A Supervisor who is appointed as Junior
Engineer shall put in a minimum service of one year on
E
duty as Junior Engineer, after such appointment, and a
total service of five years as Junior Engineer, inclusive of
. >:.·
the period given as weightage to become eligible for
promotion as Assistant Engineer;
(iii) No Supervisor shall ordinarily be eligible for
F
appointment as Junior Engineer, unless he has put in a
minimum service of three years as Supervisor;
(iv) A Supervisor with less than three years of
-..........
service, who is appointed as Junior Engineer for any
G
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special reasons, shall not be entitled to any weightage of
his past service as Supervisor."
·
19. Aggrieved by the issuance of G.0.Ms No. 54 dated
15.2.1983 petitions were filed by aggrieved Junior Engineers
in the State Administrative Tribunal questioning its validity. The
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[2013) 13 S.C.R.
A Tribunal rendered its decision, which was then challenged in
~
this Court. This Court remanded the matter for fresh
consideration by the State Administrative Tribunal which then
upheld the validity of the G.O.Ms.
8
Decision of the Tribunal:
20. In its decision regarding retrospective operation given
to the G.O.Ms the Tribunal held, relying upon a Constitution
Bench decision in B. S. Yadav v. State bf Haryana, 1980 Supp
-).:
sec 524 that retrospective operation could be given to the
c G.O.Ms and that there was no illegality in this regard. It was
further held that the impugned G.O.Ms merely gave statutory
--
recognition to a situation existing through the executive order
contained in G.O.Ms No. 559 dated 18.7.1977.
D
21. The Tribunal also upheld the grant of weightage given .
"'
to Supervisors who obtained a graduate degree. For arriving
~
at this conclusion, the Tribunal referred to Devi Prasad which
had found the benefit of weightage to be neither arbitrary nor
unreasonable. A reference was also made to Muralidhar in this
E regard. The Tribunal rejected the contention that because the
post of Junior Engineer had become a gazetted post in a
different cadre, a Supervisor who subsequently became a
Junior Engineer was not entitled to weightage. It was held that
Supervisors and Junior Engineers continued to R_erform
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substantially the same functions and hold the same
responsibilities. Therefore, the mere gazetting of a post and
change of cadre would not make any material difference to the
principle laid down by this Court.
22. On the issue of impacting and disturbing the seniority
G of directly recruited Junior Engineers by Supervisors, the
........._
Tribunal initially dealt with the issue rather cursorily and held that
~
the seniority would get altered and that there would be a certain
amount of fluidity in the seniority of Junior Engineers but that
was no reason to strike down G.O.Ms. However, later in its
H judgment, the Tribunal explained that weightage was all along
P. SUDHAKAR RAO v. U. GOVINDA RAO
557
[MADAN B. LOKUR, J.]
being given to Supervisors and it is this that caused the fluidity
A
in the seniority list of Junior Engineers.
23. The Tribunal then upheld the validity of the impugned
G.O.Ms and disposed of the petitions pending before it by
recording the following observations:
B
"(1) The Junior Engineers on acquisition of Degree
qualification in Engineering would be entitled for weightage
"'- .
of those appointments are made or deemed to have been
made under the Rules providing for such appointments
and weightage with reference to their dates of appointment c
(not with reference to acquisition of degree qualification)
against a vacancy in the cadre of Junior Engineer.
(2) The Government is advised to consider fixing a
.'
ratio between direct recruits and those appointees by
D
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appointment by transfer to the post of Junior Engineer (now
Assistant Executive Engineer) to the post of Assistant
Engineer (now Deputy Executive Engineer)".
Decision of the High Court:
E
24. Feeling aggrieved by the decision rendered by the
Tribunal, Junior Engineers challenged it in the Andhra Pradesh
High Court. However, the petitioners in the High Court did not
challenge the validity of the entire G.O.Ms No. 54 dated
15.2.1983 but contended that "the weightage rule should be
F
confined to the eligibility and the same should not be
considered for the purpose of seniority." The decision of the
High Court is reported as U. Govinda Rao v. Government of
Andhra Pradesh, 2002 (1) ALO 347 = 2002 (1) ALT 713 .
.. ~
25. While adverting to the impact of the benefit of G
weightage on the seniority of Junior Engineers, the High Court
drew attention to the averment in one of the cases wherein a
chart was drawn of the notional seniority given to Supervisors.
This chart is as follows:
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A
B
c
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SUPREME COURT REPORTS
(2013) 13 S.C.R.
SI.
Name of
Year of
Appointment
Notional date
Ne.
the
passing
asAssistant
as Assistant
respondent
Degree
Executive
Executive
Engineer
Executive
(Supervisor) b) Engineer
.
transfer
(Supervisor)
1. Md.Sirajuddin
1986
7.5.1986
6.5.1982
2.
B. Seva
1986
6.5.1986
6.5.1982
3. Ms.
1986
31.7.1986
31.7.1982
Zinullabuddin
4. G.Uppalaiah
1987
4.10.1987
19.11.1983
V.T.
5. VenkateshwarlL 1987
4.10.1987
26.2.1984
6. K. Bhaskar
1988
8.9.1988
2.6.1985
7.
P. Maheedar
1988
3.3.1989
30.10.1985
Raj
8. A. Gopal
1988
31.3.1989
26.10.1985
26. The High Court noted that: (i) the notional date of
seniority of Supervisors was given without any reference to any
existing ·vacancy; (ii) seniority was given to the Supervisors
F from a date when they did not even possess the qualification
to hold the post of Junior Engineer, and (iii) regularly appointed
Junior Engineers were being subjected to a loss of seniority
at the instance of those Supervisors who had been regularized
subsequently.
G
27. The High Court then relied upon B.S. Yadav, K.C.
Arora v. State of Haryana, (1984) 3 SCC 281, P.O. Agarwal
v. State of U.P., (1987) 3 SCC 622 and K. V. Subba Rao v.
Government of A.P., (1988) 2 SCC 201 to conclude that the
H civil right of seniority of the Junior Engineers could not be taken
P. SUDHAKAR RAO v. U. GOVINDA RAO
559
[MADAN B. LOKUR, J.]
... _,_
away by applying the impugned G.O.Ms retrospectively. Relying
A
upon Devi Prasad and Muralidhar it was held that weightage
of past service can be given to the Supervisors oniy from the
date of appointment.
28. In conclusion, it was held that the impugned rule violates
B
Article 14 and 16 of the Constitution in so far as it takes away
the vested right of seniority of Junior Engineers vis-a-vis
Supervisors.
Discussion on the judgments:
c
29. Feeling aggrieved, Supervisors before the High Court
preferred these appeals. Since the issue of weightage of
service for eligibility purposes was decided in their favour, the
principal grievance (if not the only grievance) raised by them,
as noted by the Bench that earlier heard these appeals is "the
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validity of the rule by which retrospective seniority benefit was
given to the Junior Engineers by G.O.Ms No. 54 Irrigation
(Service IV-2) dated 15.2.1983." Indeed, before us also, the
only contention related to the issue of striking down the benefit
of retrospective seniority given to the Supervisors.
I
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30. The question referred to the larger Bench arises in this
context, but as noted above, it has wider implications.
~
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31. Desai is the earliest case mentioned in the reference
order and this concerned the [Gujarat] Engineering Service
F
Rules, 1960. This case dealt with two classes of employees:
(a) those who had rendered service as officiating or temporary
Deputy Engineers prior to their direct recruitment as Deputy
Engineers, and (b) those promotee Deputy Engineers who had
- ~
rendered service as officiating or temporary Deputy Engineers
G
prior to their promotion.
32. The case of the category (a) employees was that their
'pre direct recruitment' services should be counted as 'eligibility
service' for purposes of their next promotion as Executive
Engineers since the 'pre-promotion' services of category (b)
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[2013) 13 S.C.R.
A was being so counted. In other words, without the word
..Ir ,.__
'weightage' having actually been used, the category (a)
employees wanted some weightage to be given to their 'pre
direct recruitment' services. This Court found no basis for such
an interpretation of the relevant recruitment rules. This Court
B also found that the directly recruited Deputy Engineers were not
discriminated against vis-a-vis promotee Deputy Engineers in
this regard since they fell in two distinct groups or classes
having a rational basis. Consequently, there was no violation
of Article 14 or Article 16 of the Constitution.
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33. The following two paragraphs from the judgment of this
Court give the essence of the view of this Court:
"If a person, like any of the respondents, to avoid the
long tortuous wait leaves his position in the "never-ending"
queue of temporary/ officiating Deputy Engineers etc.
looking for promotion, and takes a short cut through the
direct channel, to Class II Service, he gives up once for
all, the advantages and disadvantages that go with the
channel of promotion and accepts all the handicaps and
benefits which attach to the group of direct recruits. He
cannot, after his direct recruitment claim the benefit of his
pre-selection service and thus have the best of both the
worlds. It is well-settled that so long as the classification
is reasonable and the persons falling in the same class
are treated alike, there can be no question of violation of
the constitutional guarantee of equal treatment.
"As pointed out by this Court in Ganga Ram case
[(1970 1 sec 377] in applying the wide language of
Articles 14 and 16 to concrete cases, doctrinaire approach
should be avoided and the matter considered in a practical
way. If the claim of the respondents to the counting of their
pre-selection service is conceded, it will create serious
complications in running the administration; it will result in
inequality of treatment rather than in removing it. If the preselection service as officiating Deputy Engineers of direct
•
P. SUDHAKAR RAO v. U. GOVINDA RAO
561
[MADAN B. LOKUR, J.]
-..,..__
recruits having such service, is taken into account for the
A
purpose of promotion, it would create two classes
amongst, the same group and result in discrimination
against those direct recruits who had no such pre-selection
service to their credit."
B
34. The next decision in line is Devi Prasad which relates
to the Andhra Pradesh Engineering Subordinate Service Rules
:A.-
and is, therefore, important for our purposes. This decision
came to be rendered as a result of the issuance of G.O.Ms.
No. 893 dated 15.6.1972 relating to Supervisors in the Andhra c
Pradesh Engineering Subordinate Service. By the said
G.O.Ms. a note being Note 2 was inserted under Rule 4 of the
Andhra Pradesh Engineering Service Rules.
35. Thereby a Supervisor working as a Junior Engineer
Jo,-
was given a weightage of 50% of service rendered by him. This
D
was treated as if the said Supervisor/Junior Engineer had
rendered service in the post of Junior Engineer for the purpose
of consideration for appointment to the post of Assistant
Engineer from Junior Engineer. This G.O.Ms was challenged
as being arbitrary, unreasonable and in violation of Article 14
E
of the Constitution.
,~
36. As is evident, the effect of weightage was limited to
eligibility for appointment to the post of Assistant Engineer from
Junior Engineer - it had no reference to seniority. This Court
F
found that there was nothing capricious in the "limited benefit
of weightage" being given to Supervisors.