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TMI Blog2008 (4) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... e total number of posts in the cadre of Sections Officers was 365. Indisputably, 10 PSs attached to the Secretaries of the Government of Andhra Pradesh have to undergo training for a period of two years as a SO. The number of PSs at a given point of time was 25. The promotional channel to the post of Assistant Secretaries was the SO. 5. By reason of GOMs No.1059 dated 15.7.1960, the State issued a notification providing for promotion to the post of Assistant Secretary also from the cadre of PSs. On or about 16.6.1971, GOMs No.58 was issued whereby and where under Andhra Pradesh General Services class XXVIII was constituted. SOs of different departments including Law, Finance Management as also of any other department were put in different categories. However, in view of the fact that the PSs were not having any promotional channel or avenue for further promotion, with a view to obtain suggestions so as to avoid stagnation in service, the Government of Andhra Pradesh constituted a Committee known as B.N. Raman Committee. The said Committee submitted its report making its recommendations, pursuant whereto and in furtherance whereof, G.O. No.538 was issued on 6.11.1982 inserting Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re considered by the Government. Noticing that out of the permanent cadre strength of SOs was 365 and that of the PSs was 25 and as 10 PSs occupy the posts of SOs, the ratio between PSs and SOs worked out at 14:1. It was decided that a cycle of 15 vacancies may commence with SOs, having regard to the number of employees in the said cadre. It was furthermore noticed that the cadre strength of all the non-cadre officers from Assistant Secretary to Additional Secretary except Law and Finance and Planning, as it stood then, was 151. It was opined that having regard to the said ratio, the number of posts required to be earmarked for the category of PS to Secretary of Government in the ministerial line should be 10. By reason of the impugned G.O., it was directed : "The Government, accordingly revise the criteria for promotion from the category of Section officers and Private Secretaries to Secretaries to Government to the categories of Assistant Secretary to Government and upto Additional Secretary to Government (Non-cadre). Based on the permanent cadre strength of both the categories; 10 (ten) posts only are to be earmarked for promotion from the category of Private Secretary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already stated, the applicants, once they enter the stream of Assistant Secretaries should be considered for promotion to the higher categories on the basis of their seniority in the feeder categories and eligibility and suitability. There is absolutely no necessity to lay down any further restriction in this regard. Even for the post of Assistant Secretary, we hold that the ratio of 1:14 itself will work as a limiting factor on the representations of both the categories in the posts of Asst. Secretaries, as the applicants belong to the minor group, they will have only lesser number of posts. There is absolutely no necessity to impose further restriction with regard to the number of posts to be given to the applicants or with regard to the promotional prospects to further higher categories. Accordingly, we hold that the impugned G.O.Ms. No.368 G.A. (Ser.B) Dept. dated 18.8.1999 except to the extent of prescribing a ratio of 1:14 between PSs and Section Officers for promotion to the post of Assistant Secretary, and the impugned GOMs No.397 GA (Ser.B) Dept., dated 20.9.1999 limiting the number of posts to Ten (10) only at any given point of time in respect of Private Secretaries to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etaries category, for promotion to Assistant Secretaries category, was restricted. While the impugned amendment is no doubt peculiar and instead of the normal practice of prescribing a ratio or a quota or the total number of posts which may be held by persons from one of the feeder categories on promotion to a higher category, the total number of posts to be held by them in the non-cadre posts of Assistant Secretaries, Deputy Secretaries, Joint Secretaries and Additional Secretaries have been clubbed together and a maximum limit of 10 posts has been prescribed to be filled up from the Private Secretaries category, that, by itself, would not render the impugned amendment to the Rules ultra vires Articles 14 and 16 of the Constitution of India." It was opined that the principles of judicial review do not permit the courts to examine as to whether prescription of another criteria would have been more beneficial or not for that would, in effect, amount to sitting over the judgment over the policy choice of the rule making authority. 11. Mr. L.N. Rao and Mr. P.P. Rao, learned senior counsels appearing for the appellants would submit : 1. Keeping in view the constitutional princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longed to the regular Column and 10 were PSs who had been undergoing training. The number of posts, however, has since gone up to 533. The number of posts of PSs which were earlier 25 has now gone upto 30. Quota in ordinary parlance would mean proportionate share. The State, indisputably, when provides for two different sources as feeder posts for promotion to a higher post, it is entitled to fix quota. The Tribunal, at the outset it may be noticed, committed an error in directing the State to consider promotion to the Private Secretaries in the ratio of 1:14 whereas in terms of Rules, it should be 14:1. Before us, learned counsel appearing on behalf of the appellants conceded in regard to this aspect of the matter. 14. Indisputably, the Rules for recruitment to the post of PSs and SOs are different. Qualifications prescribed therefor are also different. Presumably, the nature and quantum of the work are also different. 15. The total number of posts in Assistant Secretaries, Deputy Secretary, Joint Secretary and Additional Secretary are as under : Name of the Post Number of posts Assistant Secretary 101 Deputy Secretary 30 Joint Secretary 15 Additional Secretary 05 Out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the categories of Assistant Secretary to Government and upto the Additional Secretary to Government shall be limited and confined to 10 (ten) posts only at any given point of time. A Private Secretary shall be promoted to the post of Assistant Secretary within the said earmarked 10 (ten) posts only on vacation of a post of Assistant Secretary/Deputy Secretary/Joint Secretary/ Additional Secretary." 16. It does not speak of any quota. It confines the number of posts to 10 at any given point of time. The number of 10 posts can be filled up only on vacation of a post of Assistant Secretary/Deputy Secretary/Joint Secretary/ Additional Secretary. 17. The affidavit affirmed on behalf of the State as also the Respondent No.3 herein categorically show that ordinarily in a given situation 10 PSs would be working as SOs. The Tribunal, as noticed hereinbefore, directed the State to fix the quota of SOs vis-`-vis PSs at 14:1 wrongly recorded as 1:14. The State as also the Private Secretaries filed writ applications questioning the said direction. 18. The stand which was taken before us, however, is that the limiting the number of posts to be held by PSs was limited to 10 having rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employee's chance of promotion is diminished cannot be a subject matter of judicial review as no legal right is infringed thereby. 24. However, such a Rule must apply to both the groups. Promotion to a higher post from the officers of a particular cadre would depend upon a large number of factors a person may retire; he may be departmentally proceeded against, he may be sent on deputation; he may resign; Cessation of employment, thus, may be on various grounds. If the number of posts is limited despite uncertainty with regard to arising of any vacancy on any higher post, the validity of such a rule would be open to question. 25. The Superior Courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues. [See Food Corporation of India and Ors. v. Parashotam Das Bansal and Ors. [Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns from the Private Secretary stream. They allegedly have other chances of promotion to the posts of Commercial Officers etc. 29. Grievances of SOs have been taken into consideration for the purpose of fixation of a ratio of 1:19 amending the same to 14:1. No exception thereto can be taken but hardship faced by a section of employees in the past by itself cannot be a ground to deprive another section of their constitutional and legal right. 30. We are, therefore, of the opinion that whereas ordinarily the ratio should not be disturbed, the same should not lead the court to a conclusion that such a policy has to be accepted although it takes away the right of a class of employees. 31. We have no doubt in our mind that before a rule is declared ultra vires, the same must be held to be wholly arbitrary or irrational. In any event a plea of discrimination is based on adequate pleadings therefor would be essential. What, however, must be noticed by us is that the impugned rule does not take into consideration the events which may take place in future, as for example increase in the strength in the cadre. If the number of posts for promotion is limited to 10, even in a case like the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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