Bilal Nazki, J.
1. These five Writ petitions are in fact directed against a common order passed by the Andhra Pradesh Administrative Tribunal in O.A.Nos. 5025/99 and 6271/2001 dated 7-12-2001. All the Writ petitions raise same questions of law and fact therefore they are decided by this common judgment.
2. The detailed facts have been mentioned by the Tribunal in its order. Shorn of details:- The O.As were filed before the Tribunal challenging Note-1(i) and Note-6 of rule-3 of G.O. Ms. No. 505, dated 16-11-1998 as being violative of the fundamental rights being discriminatory in character. The Tribunal accepted the contentions and quashed Note-1(i) and Note-6 of Rule-3 of G.O. Ms. No. 505, dated 16-11-98.
3. Now, the only question which is to be answered by this Court is whether the Note-1(i) and Note-6 of rule-3 of G.O. Ms. No. 505 is unconstitutional, or not. Therefore, before going to the arguments on either side it will be necessary to reproduce the relevant portions of the G.O. This G.O was issued framing Rules known as 'Andhra Pradesh Educational Service Rules'. In terms of Rule-2 the service was constituted with four classes each class having many categories of employees. Rule-3 lays down the method of appointment and appointing authorities. Note- 1(i) and Note-6 have been challenged before the Tribunal. Note 1(i) lays down;
'NOTE 1: (i) Combined seniority of all eligible officers from all the feeder categories as defined shall be prepared and considered for appointment by promotion / recruitment by transfer to any category in the service rules in the manner prescribed until and unless otherwise specified in these rules against any category, except in category 1 of class II and category 10, 11 and 12 of Class III.
Note-6 lays down;
'NOTE 6: for the purpose of promotion to category 1 of class II, the following 12 point cycle shall be followed from the feeder categories:
1. A.D., G.A.O, and A.P.O
2. Direct recruit Dy. E.O/ Gazetted Head Master Grade-I, Lecturer IASE/ CTE/ SCERT, Senior Lecturer DIET and Special Officer (OS)
3. Promotee Dy E.O / Gazetted Head Master Gr.I and P.E.O.
4. Promotee Lecturer IASE/ CTE/ SCERT, Senior Lecturer DIET and A.D (NFE)
5. Driect Recruit Dy. E.O / Gazetted Head Master Gr.I, Lecturer IASE/ CTE/ SCERT, Senior Lecturer DIET, and Special Officer (O.S)
6. Promotee Lecturer IASE/ CTE/ SCERT, Senior Lecturer DIET and A.D (NFE)
7. A.D., G.A.O, and A.P.O
8. Direct recruit Dy. E.O/ Gazetted Head Master Grade-I, Lecturer IASE/ CTE/ SCERT, Senior Lecturer DIET and Special Officer (OS)
9. Promotee Dy E.O / Gazetted Head Master Gr.I and P.E.O.
10. Promotee Lecturer IASE/ CTE/ SCERT, Senior Lecturer DIET and A.D (NFE)
11. Driect Recruit Dy. E.O / Gazetted Head Master Gr.I, Lecturer IASE/ CTE/ SCERT, Senior Lecturer DIET, and Special Officer (O.S)
12. Promotee Lecturer IASE/ CTE/ SCERT, Senior Lecturer DIET and A.D (NFE)'
4. So, according to Note-I, a combined seniority of all eligible officers from all the feeder categories as was defined has to be prepared and considered for appointment by promotion / Recruitment by transfer to any category in the service rules in the manner prescribed and according to Note-6 for the purpose of promotion to category-I of class-II a 12 point cycle has to be followed from the feeder categories.
5. The contention of the petitioners before the Tribunal was, once recruitment is made through different sources to a particular post, all those recruited to that post from different sources merge into one category and there cannot be further discrimination on the basis of source of their recruitment for further promotion. This was the only argument which was made before the Tribunal and which has been made in this Court as well. In support of this argument many decisions of Supreme Court were cited but on the other hand the respondents before the Tribunal who are the Writ petitioners contend that the order of the Tribunal was wrong in as much as, (i) no discrimination was pleaded in the O.A, (ii) that the classification made was reasonable and was with the objective of attaining efficiency and (iii) that the promotional avenues of Officers recruited from all sources remain available, and (iv) the reasonable classification was made in appropriate and justifiable way so that promotional avenues were provided to Lecturers in all class-II posts. If the ratio was not fixed all the promotions would be knocked away by one category of class-III officers. The promotions were effected taking combined seniority of direct recruits and promotees. No promotee would get promotion in future. It is not disputed that in terms of Note-1 a combined seniority list had to be prepared for direct recruits as well as for promotees and for promotees, candidates would not be promoted from a single post, there were different categories of posts which were the source of recruitment by promotion to the category-I of class-II officers being Promotee Deputy Education officer/ Gazetted Head Master Gr.I/ P.E.O, Promotee Lecturer IASE/ CTE/ SCERT, Senior Lecturer DIET and A.D (NFE). Direct recruit Dy. E.O/ Gazetted Head Master Gr.I, Lecturer IASE/CTE/SCERT, Senior Lecturer DIET and Special Officer were the feeding channel for being put into one category and in one seniority list.
6. Now, there are two questions, one whether such a seniority list could have been created or not. Secondly, if such a combined seniority list was created whether thereafter in between themselves they could be discriminated. It is right from 1967 when the Constitution Bench judgment in Roshan Lal Tandon's case (Roshan Lal vs . Union of India, : (1968)ILLJ576SC ) came that it has been conceded that the terms of service can be altered unilaterally by the Government and there remains no vested contractual right for the servant. In para-6 and 7 of Roshanlal's judgment the Supreme Court held;
'(6) We pass on to consider the next contention of the petitioner that there was a contractual right as regards the condition of service applicable to the petitioner at the time he entered Grade 'D' and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board. It was said that the order of the Railway Board dated January 25, 1958, Annexure 'B' laid down that promotion to Grade 'C' from Grade 'D' was to be based on seniority-cum-suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner. In our opinion, there is no warrant for this argument. It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows:
' So we may find both contractual and status-obligations produced by the same transaction. The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligation defined by the law itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has been fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by authoritatively determining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modern times is to withdraw the matter more and more from the domain of contract into that of status.' (Salmond and Williams on Contracts, 2nd edition,p.12). (7) We are therefore of the opinion that the petitioner has no vested contractual right in regard to the terms of his service and that counsel for the petitioner has been unable to make good his submission on this aspect of the case.'
7. Therefore, in our view there was no occasion for the Tribunal to strike down Note-1(i). We have gone through the order of the Tribunal. The Tribunal has not given any reasons for striking down Note-1(i) of the impugned G.O. Therefore, we are inclined to set aside the order of the Tribunal to the extent of quashing Note-1(i) of the G.O.
8. Now, coming to the second contention of the validity of Note-6, we are afraid we will have to go with the opinion of the Tribunal. After conceding to the power of the Government to make rules providing for a combined seniority list of different classes of Officers making it a feeding category for promotion to the next higher post the State was not within its rights to discriminate in between them who constitute such a category. An argument was made by the Writ petitioners that there is a difference of even educational qualification between the Officers coming from different sources, but in our view that cannot clinch the issue and cannot be a clinching factor. The clinching factor would be, whether these officers form one category which they formed in terms of Note-1(i). So, if persons with different qualifications come from different sources but form into one category they cannot be further discriminated for the purpose of promotion. In this case there are various judgments but we will refer to latest judgment of Supreme Court ie., State of Punjab v. Dr. R.N. Bhatnagar, 1999(2) SLR 552. In this case, 75% posts of the Professors in the Medical College were to be filled up by promotion amongst the additional Professors and 25% were to be filled by direct recruitment. In this case the rival contentions before the Supreme Court were;
'Learned counsel Shri H.K. Puri for the appellant and learned Senior Counsel Shri P.P. Rao for the intervenor, submitted that the High Court had misinterpreted the ratio of the Constitution Bench judgment in the case of R.K. Sabharwal & Ors. (1995(1) SLR 791(SC)). That the said decision pertaining to a scheme of reservation for Scheduled caste and Scheduled Tribe persons under Article 16(4) of the Constitution and had nothing to do with the present scheme of the rule regulating the recruitment from two sources under Article 16(1) of the Constitution. It was next contended that under latter scheme, the State authorities consistently followed the regulation of recruitment by ratio 3:1 i.e, three promotees and one direct recruit in case of all future vacancies in the cadre of Professors. That earlier by executive instructions and later by the statutory rule this was consistently followed. Non-following the said practice would result in anomalies, which were tried to be demonstrated by them.'
9. In order to make recruitment to the posts of Professors where 25% posts had to be filled up by direct recruitment and 75% by promotion the State on the operation of rota-quota rules fixed the roaster cycle of 3:1. First, second and third vacancy would go to the promotee and 4th vacancy would go to the direct recruit, 5,6,7 to the promotee and 8th vacancy to the direct recruit, similarly 9th 10th and 11th vacancy to the promotees and 12th vacancy to the direct recruit. After considering the rival contentions and also the earlier judgments of the Supreme Court including State of Jammu & Kashmir vs. Triloki Nath Khosa (1974(1) SLR 536), Roshanlal Tandon vs. Union of India (1967 SLR 832 (SC)) and many other judgments the Supreme Court held;
'It has, therefore, to be appreciated that when posts in a cadre are to be filled in from two sources whether the candidate comes from the source of departmental promotees or by way of direct recruitment once both of them enter a common cadre their birth marks disappear and they get completely integrated in the common cadre. This would be in consonance with the thrust of Article 16(1) of the Constitution of India. No question of exception to the said general thrust of the constitutional provision would survive as article 16(4) would be out of picture in such a case.'
10. Then the Supreme Court dealt with effect of Article 16(4) in case of reservation of SCs, STs and BCs and also went into R.K. Sabharwal's case (supra) which was decided by a Constitution Bench with which we are not concerned presently.
11. So, law is settled that when the posts in a cadre are to be filled up, whether the candidates come departmentally or by way of direct recruitment, they get integrated into a common cadre and lose their birth marks. Therefore, in our view the Tribunal was right in quashing Note-6 of the Rules.
12. Another argument was made that discrimination had not been pleaded. It is true that certain judgments were also cited before the Court, but it is well settled that when a law is challenged discriminatory it should be positively pleaded. In this case we do not think any factual details were necessary to be given as Note-6 was patently discriminatory. It was also contended that prior to the rules framed under G.O.Ms. No. 505 there were similar rules and in an O.A those rules had been upheld by the Tribunal therefore the Tribunal could not go against its own judgment. Certain judgments were pressed into service being Gopabandhu Biswal v. Krishna Chandra Mohanty, : [1998]2SCR1108 K. Ajit Babu v. Union of India, : (1997)IILLJ749SC . We have gone through these judgments. These judgments apply to the Tribunal. This argument could have been made perhaps before the Tribunal but not before this Court. In any case, even if the argument had been made before the Tribunal it could have not been accepted because even if there had been a judgment before the Tribunal in favour of the present Writ petitioners it could not bind them because of the Supreme Court judgments. At best, the Tribunal would have referred the matter to a larger Bench. Therefore, there being an earlier judgment of the Tribunal which is not binding on the High Court it will not deter us from passing an order we are now passing particularly when the law is clearly laid down by the Supreme Court.
13. For these reasons, the Writ petitions are partly allowed. Note-1(i) to Rule-3 of the G.O.Ms. No. 505, dated 16-11-98 is upheld whereas Note-6 to Rule-3 of the G.O is quashed. No order as to costs.