Holding

The transfer of Assistant Educational Officers to High School Assistants after six years is arbitrary and violates Articles 14 and 16 because the AEO post is a higher category and grade, constituting a promotion.

Summary

The appellants, who were Assistant Educational Officers (AEO) in the Kerala Education Service, were ordered by a 1977 government letter to be transferred back to the lower post of High School Assistant (HSA) after six years of service. They challenged the reversion as violative of Articles 14 and 16 of the Constitution, arguing that the AEO post is a promotional post of higher category and grade, carries a special pay and greater disciplinary powers, and therefore the transfers were arbitrary. The Supreme Court examined the relevant service rules, the Kerala Education Act, and the special pay provisions, concluding that the AEO post is indeed higher in both category and grade than the HSA post. Consequently, the Court held that the 1977 transfer order was arbitrary, lacking any rational principle, and violated Articles 14 and 16. The Court set aside the High Court judgment, quashed the reversion orders, and directed the respondents to repost the appellants as AEOs.

Issues considered

The AEO post is a promotional post higher in category or grade than the HSA post.
Whether the transfer of AEOs to HSAs after six years is violative of Articles 14 and 16 of the Constitution.
Whether the two posts are interchangeable under the Kerala Education Rules and Service Rules.

Legislation cited

Constitution of Indias. Article 14, s. Article 16
Kerala Education Act, 1958s. Section 12A
Kerala Education Rules, 1959s. Rule 2(5), s. Rule 2(7a)
Kerala Education Subordinate Service (Special) Rules, 1972s. Rule 3
Kerala Service Ruless. Rule 12, s. Rule 12(23), s. Rule 12(31), s. Rule 62
Kerala State and Subordinate Service Rules, 1958s. Rule 2(ii), s. Rule 2(v), s. Rule 2(vii)(a)

Subjects

promotionservice lawconstitutional lawArticle 14Article 16Kerala education servicearbitrary transferspecial payreversioninter-changeability

Judgment

128

A

C. C. PADMANABHAN & OTHERS
v.
THE DIRECTOR OF PlJBLIC INSTRUCTIONS AND OTHER.S-
B
JuJ,y 30, 1980

[V. R. KRISHNA IYER, A. D. KOSHAL AND 0. CHINNAPPA REDDY, JJ.J'

Promotional post-Post of A ssistallf Educational Office.r in Kera/a Educa-
tional Service is a promotional post and a reversion therefrom is, thereiore,
c invalid-Articles 14, 16 of the Constitution read with Clause (2) of tlze
Rules of the Keral'a State and Subordinate Services Rules, 1915, Rule 2(5)·
and 2(7) (a) of the Kera/a Education Rules, 1958 and Section 12A of the Kera/a
Education Act, 1958-The two posts of Assistant Educational Officer and the
High School Assistant are not imer-changeabk--Kerala Education Subordinaie
Service (Special) Rules, 1972, Rule 3.
Each of the appellants had been holding the post of Assistant Education~!
D Officer for more than six years continuously when his reversion was ordered ih
implementation of the instructions issued by the· State Government through a
letter dated 19th May, 1977 to the effect that every Assistant Educational Oflicer-
should be transferred after six years of service as such or even earlier, on
administrative grounds. Having failed before the High Court to get these ord·ers
quashed on the ground that the posts of Assistant Educational Officers, being
promotional posts, their transfer to the posts of High School Assistant amounted
E to reversion· and, therefore, violated Articles 14 and 16 of the Con~titution;.
the appellants have now come up in appeal by special leave. ·
Allowing the appeals, the Cour~,
HELD: (l) The directions contained in the Jetter dated 19th May, 1977
that an Assistant Educational Officer should be transferred back as a Hi~:h'.
School Assistant after six years of incumbency as Assistant Edqcational Oflicc!r',
F is wholly arbitrary and not based on any principle and is therefore violative·
of Article 16 of the Constitution. Firstly, the post of A.E.O. carries a special '.
pay of Rs. 50/- per month and therefore ensures for its incumbent higher emo- ',
Iuments than are available to a' High School Assistant. Secondly, the, special
pay is counted towards pension under Rules 12, 23 and 62 of the Kerala Ser-
vice Rules. Any transfer of an Assistant Educational Officer to that of High ,
School Assistant deprives him of these benefits and; therefore, is violative ol:- ,
G Article 14. [137H, 138A-D] .
P. C. Joshi and others etc. etc. v. The Director General, Posts and Tele'· ~
graphs, New Delhi etc., [1975] 2 S.C.R. 115, distinguished:
(2) The very fact that the post of Assistant Educational Officer carries a
special pay of Rs. 50/- falling within sub-clause (a) of clause 31 of Section 12
of the Kerala Service Rules, goes to prove that the post is higher than that of· '
High School Assistant. [136B-C, 137F-G]
H
(3) Rule 2(ii) of the Kerala State and Subordinate Service Rules, 1958,
Rule 2(v), Rule 2(vii)(a) of the Kerala Education Rules, 1959 and Section 12A
of the Kerala Education Act, 1958· make it clear tllat if so' authorised by the:
~ i

C. C. PADMANABHAN v. DIRECTOR OF PUBLIC INSTRUCTIONS 12 9

Government an A.E.O. shall have the power to take disciplinary proceedings A
against a teacher, including a Headmaster, of an aided school, to suspend him
. when such proceedings are proposed to be taken and to impose upon him all
_,¥- - or any of the penalties to which ·he may be liable under the relevant rules.
Item 4 of the functions to ·be performed by an Assistant Educational Officer
detailed in the Education Department Guide Book, 1978 empowers him to
institute disciplinary proceedings against non-gazetted officers under his control
as per Kerala Civil Services (Qualification, Control and Appeal) Rules, and
admittedly High School Assistants are non-gazetted -officers who are eligible
for appointment and are normally appointed as Headmasters of upper primary
school and, therefore, they would while functioning as Headmasters be amen-
able to disciplinary action by their respective Assistant Educational Officers. It
follows that the post of an Assistant Educational Officer lies in a higher cate-
gory than that of a High School Assistant who does not wield any correspond-
ing disciplinary jurisdiction. [132C-G] c
The qualifications prescribed by the Government Order dated 25th June,
1966 and Rule 3 of the Kerala Education Subordinate Service (Special) Rules,
1972 make it clear that the two posts of Assistant Educational Officer and High
School Assistant are not inter-changeable. A High School Assistant cannot
be posted as an Assistant Educational Officer unless he has the qualification
(in addition to those making him eligible to hold the post of High School D
Assistant) of having passed the test in Kerala Education Act and Rules_ The
broad . guidelines issued by the State Go..-emment to the effect that "care must
be taken to see that only officers of high integrity and efficiency should be
posted to work as Assistant Educational Officers'', the Government Order of
29th August, 1961, the letter dated 7th February, 1969 issued by the Direct!:'r
of Public Instructions and the Order dated 19th October, 1974 issued by the
State Government introducing direct recruitment to the posts of A.E.Os. and E
District Educational Officers also specifically indicate that the functions to be
performed by an Assistant Educational Officer are substantially different from
and entail higher responsibility than those of an H.S.A so that the appoint-
ment to the post of .A.E.O. from amongst officials already serving the State
Government is a matter of promotion and not a mere transfer and that is how
the Kerala Government itself has been viewing the matter all along prior to
the issuance of the letkr dated 19th May, 1977. [131G, 13lB-C, E, F, 1340- F
HJ
(4) If the rules do not permit Assistant Educational Officers to become
Headmasters of High s·chools but the Government has been posting them as
su'ch in contravention of the rules it _would not follow that the rules automa-
tical'ly stand amended to be read in conformity with the contravention. There
is no incongruity in the two categories of the posts, one higher and the other G
lower, furnishing two sources of recruitment to another hi.gher post and it
would not necessarily follow from such a practice that the two sources must
be regarded as equi..-alent to each other for all purposes. [135G-H, 136A]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3520-3524 of
1979.
(Appeals by Special Leave from the Judgment and Order dated H
11-9-1979 of the Kerala High Court in Writ Appeals Nos. 241, 242/77
and Original Petition Nos. 1791, 1836 & 1892/79.)
...
130 SUPREME COURT REPORTS [1981] 1 S.C.R.

A
P. Govindan Nair. Mrs. Baby Krishnan and N. Sudhakaran
for the Appellants.
M. M. Abdul Khader, V. J. Francis and Sushi! Kumar for the
Respondents. ·

B The Judgment of the Court was delivered by
KosHAL, J.-By this judgment we shall dispose of Civil Appeal
Nos. 3520 to 3524 of 1979 which are directed against a common judg-
ment dated 11-9-1979 of a Division Bench of the High Court of Kerala
holding that in the Department of Education of the State of Kerala
the post of Assistant Educational Officer (hereinafter described as
c A.E.O.) is not a promotion post vis-a-vis that of a High School Assis·
tant (hereinafter referred to as HS.A.), that the two posts are inter-
changeable and that consequehtly the reversion of the solitary appel-
lant in P.ach case from the post of A.E.O. to that of H.S.A. is not viola-
tive of article 16 of the Constitution.
D 2. It is not disputed before us that each of the appellants had
been holding the post of A.E.O. for more than six years continuously
when his reversion was ordered in implementation of the instructions
issued by the State Government through a letter dated the 19th May,
1977 to the effect that every A.E.O. should be transferred back as
H.S.A. after six years of service as A.E.O. or even earlier on adminis·
E trative grounds. Each reversion was challenged before the Kerala
High Court by means of a petition under article 226 of the Constitu-
tion of India with the prayer that the same be quashed. Two of the
petitions were dismissed by a learned single Judge whose orders were
challenged in letters Patent appeals which were heard and dismissed
by the impugned judgment along with the other three petitions. The
F five appeals have been admitted in pursuance of special leave granted
by this Court.
3. On behalf of the appellants two contentions have been raised:
{a) The past of A.E.O. lies in a category and carries a grade
·higher than those of the post of H.S.A. is, therefore, a
G post of promotion vis-a-vis the other so that the two cannot
be considered as inter-changeable especially because there is
no rule, direction or instruction laying down expressly or by
necessary implication that they are equivalent to each other.
(b) Even if the appointment of an HS.A. as an A.E.O. cannot
be regarded as a promotion, the impugned reversions are vio-
H lative of article 14 as no guidelines to regulate them have
been provided inspite of the fact thaf the post of an A.E.O.
carries a special pay which is not available to an H.S.A.
•C. C. PADMANABHAN V. DIRECTOR OF PUBLIC INSTRUCTIONS 13 1
(Kasha/, J.)

After hearing learned counsel for the parties at length we find A
·\both these contentions to be weighty.
4. Promotion is thus defined in clause (11) of rule 2 of the Kerala
·state and Subordinate Services Rules, W58: '
"(11) 'Promotion' means the appointment of a member of
any category or grade of a service or a class of service to a higher . B
category or grade of_ such service or class."
"This definition fully conforms to the meaning of 'promotion' as under-
stood in ordinary parlance and also as a term frequently used in cases
involving service laws. According to it a person already holding a
post would have a promotion if he is appointed to another post which c
'.Satisfies either of the following two conditions, namely-
(i) that the new post is in a higher category of the same service
or class of service ;
(ii) the new post carries a higher grade in the same service or
class. D
It is common ground between the parties that in the instant case
·the two posts belong to the same service or class of service. Applying
the above test, therefore, to them it would follow that the appoint-
ment of an HS.A. to the post of an A.E.O. would be a promotion if,
:and only if-
E
(a) the post of an A.E.0. is of a higher category than that of an
H.S.A.
or
(b) the post of an A.E.O. carries a higher grade than that of an
HS.A.
F
'ln case of either of these conditions being fulfilled, the appointment
-of an HS.A. to the post of an A.E.O. would be a promotion within
·the meaning of the clause above reproduced.

5. For ascertaining whether or not the post of A.E.O. lies in a
'-Category higher than that of an H.S.A. a reference may be made to G
clauses (5) and (7a) of rule 2 of the Kerala Education Rules, 1959
, and section 12A of the Kerala Education Act, 1958. Rule 2(5) defines.
'Educational Officer as meaning the District Educational Officer or the
. Assistant Educational Officer having immediate inspectional and admi-
·nistrative control over the schools within his respective jurisdiction,
·while rule 2(7a) 'states that the term 'Teacher' includes the Headmaster. H
:Sub-sections (1) & (2) .of section 12A run thus:

''-..
132 SUPREME COURT REPORTS [IgSI] 1 ·S.C.R.

A "(1) .Notwithstanding· anything contained in sectfon 11 or sec~
tion 12 and subject to such rules as may be prescribed, the Gov-
ernment or such officer not below the rank of an Educational
Officer, as may be authorised by the Government in this behalf,
shall have power to take disciplinary proceedings against a teacher
of an aided school and to impose upon him all or any of the penal-
B ties specified in the rules under this Act.

"(2) The Government or the officer authorised under sub-
section (I) as the case may be, may suspend a teacher of an aided' I
school when any·disciplinary proceedings are proposed to be taken --~
against him under that sub-section or when such disciplinary pro-
c ceedings are pending: ........................... ".

The combined effect of these provisions is that if so authorised
by the Government an A.E.O. shall have the power to take discipli-
nary proceedings against a teacher, including a Headmaster,. of an
aided school, to suspend him when such proceedings are proposed to
D be taken and to impose upon him all or any of the penalties to which
he may be liable under the relevant rules.

The Education Department Guide Book, 1978 issued by the State
Government contains a detailed description of the powers and duties
assigned to various officials of the Department. The list of functions
E to be performed by the A.E.Os. contains 40 items of which item 4
reads:

"To institute disciplinary proceedings against non-gazetted
officers under his control as per Kerala Civil Services (C. C. and
A.) Rules."
F
, Now H.S.As. are admittedly non-gazetted officers who are eligible for
appointment and are non:nally appointed as Headmasters of Upper Pri-
mary schools (vide paragraph l(a)(i) of G.O. (Ms) No. 32/71 /S. Edn.,
dated 19-3-1971). They would thus while functioning as Headmasters,
be amenable to disciplinary actjon by their respective A.E.Os. It
G follows that the post of the A.E.O. lies in a higher category than that
of the H.S.A. who does not wield any corresponding disciplinary
jurisdiction.
6. The qualifications for the two posts may now be looked into.
A.E.Os. are appointed from amongst first grade graduate teachers hav-
ing the following qualifications (vide No. G.O.M.S. 393 /Edn., dated'.
H
25-7-1966):
(a) General: B.A. or B.Sc.
C, C. PADMANABHAN V. DffiECTOR OF PUBLIC INSTRUCTIONS 13 3
(Koshal, J.)

(b) Special: (i) B.T. or B.Ed. of a recognised University: A.
(ii) Account Test Lower.
(iii) Kerala Education and rules.
Rule 3 of the Kerala Education Subordinate Service (Special)
Rules framed in 1972 runs thus:
"3. No- High School Assistant shall be considered for being
selected for posting as an Assistant Educational Officer unless he
L has passed the test in Kerala Education Act and Rules."
This rule seriously militates against the proposition propounded on
behalf of the State that the two posts are inter-changeable. An H:S.A.
cannot be posted as an A.E.O. unless be has the qualification (in addi-
tion to those making him eligible to bold the post or H.S.A.) of having
passed the test in Kerala Education Act and Rules. The reason for
the additional qualification is obvious and that is that in his supervi-
sory and disciplinary iwisdiction the A.E.O. bas to discharge func-
tions which he cannot. efficiently carry out if he is not a master of the
law which calls for day to day application by him to different cases
with which he has to deal. This is another factor pointing in the same '
direction that the post of an A.E.O. lies in a higher category.

7. An additional circumstance leading to the same inference is
provided by the broad guidelines issued by the State Government to
the effect that "care must be taken to see that only officers of high
integrity and efficiency should be posted to work as Assistant Educa-
tional Officers" (vide judgment dated 11th January, 1977 of the High
Court of Kerala in O.P. No. 3627 of 1974). H.S.As. are, therefore,
appointed to the posts of A.E.Os. not as a matter of course but un_der
a process of selection for which the basic is integrity-cum-efficiency. F
Further evidence in the same direction is provided by three docu-
ments forming part of the paper book at pages 31-38 and marked as
annexures 'C', 'D' and 'E' respectively. Annexure 'C' is an order dated
29th August 1961 issued by the State Government. a part of paragraph 3
of which reads thus:
"Criteria for promotion:
"(1) Appointment to the posts of District Educational
Officers, Headmasters of High Schools, High School Assistants and'
Assistant Educational Officers are now made mainly on the basis
of seniority. Promotion on the basis of seniority alone is not con- H.
ducive to efficiency. Promotions to these posts. wilt hereafter be
made on a selection basis.
134 SUPREME COURT REPORTS [1981] 1 S.C.R.

. "(2) The above orders will be given effect from the 1st Sept-
ember 1961 .................. "

Annexure 'D' is a letter dated 17th February 1969 from the
Director of Public Instructions to the District Educational Officer,
Trivandrum and states, inter alia,:
"The question of probation arises only when there are func-
tional differences. So in the case of Assistant Educational Officers
probation has to be insisted on."
The last of the three documents is an order dated 19th October
1.974 issued by the State Government introducing direct recruitment to
the posts of A.E.Os. and District Educational Officers. It contains,
amongst others, the following directions:
'.'The persons selected will be required to undergo/ pass the
following training programme/departmental tests:
.D "Assistant Educational Officers,
"Training: One year as Headmaster of an Upper Primary School.
"2. Six months with Assistant Educational Officer of which
the last three months shall be as Head Clerk of the Assistant Edu-
cational Officer's office .
.E
"3. Six months in the District Educational Officer's office of
which the last three months will be as Junior Superintendent in
charge of one of the sections.
"4. Two months OM(?) training in the Directorate or Secre-
·tariat Training School.
"5. Four months as personal assistant to Educational Officer.
"Departmental Tests:
I. Account test (Lower).
2. Test in Kerala Education Act and Rules.
3. Test in Manual of Office Procedure."
The integrated effect ·of these three documents is that the functions to
be performed by an A.E.O. are substantially different from and entail
higher responsibility than those of an H.S.A., that the appointment to
the post of an A.E.O. from amongst officials already serving the State
Government is a matter of promotion and not a mere transfer, and
that that is how the Kerala Government itself has been viewing the
matter all along prior to the issuance. of the letter dated 19th May,
W77 mentioned above.
C. C. PADMANABHAN V. DIRECTOR OF PUBLIC INSTRUCTIONS 135
(Koshal, J.)

8. Here we may briefly advert to the constitution of the Kerala A
·General Education Service as detailed in G.O. (P) No. 356/PD, dated
28th October, 1967 and published in Kerala Gazette No. 46, dated
21st November 1967. That Service is divided into two classes. The
post of the District Educational Officer falls in Class I which is supe-
rior to Class II. The posts enumerated in Class II include those of
Headmasters of High Schools. The post of H.S.A does not find a
place in_ either Class. On the other hand the H.S.A. belongs to the
Kerala Educational Subordinate Services and works under the Head·
master of a High School. He is, therefore, two steps below the Dis-
trict Educational Officers. Mr. Nair sought to utilise this circum·
· stance as another pointer to the post of H.S.A. lying in a category
_,J. lower than that of an A.E.O. ; for, according to him, the latter was
only one step below the po~t of a District Educational Officer. The
argument has not commended itself to us as no foundation has been
laid for the assumption that the post of an A.E.O. furnishes an imme-
diate avenue of promotion to that of the District Educational Officer.
In fact an indication to the contrary is provided by the various cate- D-
gories listed in Classes I and II mentioned above, neither of which
includes either H.S.As. or A.E.Os. This may well mean that the
A.E.O. too is to hold another post (out of those listed for the purpose
in the G.O. last mentioned) before he would have a chance of promo·
• tion as a District Educational Officer. And if that be so, an A.E.O.
must also be regarded as two steps below a District Educational Officer.
The G.O. under consideration is, therefore, of no help to the case of
the appellant, but then this conclusion does not ad¥ersely affect the
finding already arrived at by us otherwise to the effect that the post
of an A.E.O. lies in a higher category.

9. The only argument which Mr. Abdul Khader advanced against F-
the proposition that the post of an A.E.O. Jay in a higher category
may be stated thus. According to the available rules and instructions
an H.S.A., but not an A.E.O., may be appointed to the post of Head~
master of a High School. However, t_he Government has been appoint-
ing A.E.Os. also as Headmasters of High Schools which means tha:t
A.E.Os. are equated with H.S.As. · Now this is, to say the least. a
strange argument. If the rules do not permit A.E.Os. to become
Headmasters or High Schools but the Government has been posting
them as such in contravention of the rules it would not follow that
the rules automatically stand amended to be read. in conformity with
the contravention. In any case, there is no incongruity in two cate-
gories of posts, one higher and the other lower, furnishing two sourc.es
of recruitment to another higher post ; and it would not necessarily
136 SUPREME COURT REPORTS [1981] 1 S.C.R.

.A follow from such a practice that the two sources must be regarded as
equivalent to each other for all purposes.
10. Let us now see if the post of an A.E.O. carries a higher grade.
It is common gtound between the parties that although the two posts
are in the same time scale, a special pay of Rs. 50 /- per mensem is
attached to post of an A.E.O. in accordance with the orders of the
State Government contained in clause (v) of paragraph 5 of G,O. (P)
No. 300/66/Fin., dated 5-7-1966 which also states that this special
pay is to be treated as Class I special pay in accordance with Appendix
IV, Kerala Service Rules. That Class consists of two items:
(a) Special pay in lieu of higher time scale of pay.
1\C (b) Special pay for specifically arduous nature of work.
The expression 'special pay in lieu of higher time scale of pay' may
be better understood with reference to the provisions of rule 12(31) of
the Kerala Service Rules which may be extracted here:
"12(31) Special Pay :-means an addition of the nature of pay
to the emoluments of a post or of an officer granted in considera-
1
tion of the following:
"(a) Where a post would call for a higher scale of pay in
view of the additional and/ or higher responsibilities attached to
it: or
"(b) Where the nature of work is specially arduous ; or
"(c) Where an officer has to attend to work in addition to
normal duties attached to his post."

A
Sub-clauses (b) & (c) of clause (31) obviously relate to posts having the
same designation or the same nature of duties in the same time scale
which is not the case here. On the other hand, the special pay granted
to an A.E.O. would squarely fall within the sub-clause (a) of clause
(31), in view of the nature of higher responsibilities shouldered by him.
And if that be so,'the grade of the post of an A.E.O. must be equated
to the time scale plus special pay, which would be a grade higher than
the one available to an H.S.A.
11. In contending to the contrary Mr. Abdul Khader sought sup-
polt from P. G. Joshi and others, etc. f!!!''C., v. The Director General,
Posts and Telegraphs, New Delhi, etc.( 1), in which the posts of Wire-
less Licence Inspectors and Town Inspectors, to such of which a spe-
cial pay of Rs. 30 / - was attached, were held equivalent to those of
clerks; the time scale for all the three being the same. The dictum
in that case is, however, not applicable to the facts with which we are
concerned. Therein this Court took note of the definition of special
pay occurring in Fundamental 9(25) which states:
(1) [1975] 2 S.C.R. 115.
C. C. PADMANABHAN V. DIRECTOR OF PUBLIC INSTRUCTIONS 13 7
(Ko$hal, !.)

"'Special pay means, an addition of the nature of pay, to the A
emoluments of a post or of a Government servant, granted in con·
.sideration of
(a) r the specially arduous nature of the duties ; or
(b) a specific addition to the work or responsibility ; or
(c) the unhealthiness of the locality in which the work is B
performed."
then proceeded to observe:
"The provision for payment of a special pay of Rs. 30 / - in
addition to the time scale of pay of clerks is inconsistent with the
constitution of a separate cadre of Wireless Licence Inspectors. and
Town Inspectors. The provision for special pay shows that t)ley c
continue in the cadre of time-scale clerks. Appointment as Wire-
less Licence Inspectors or Town Inspectors is not a case of trans-·
fer from one cadre to another or a case of promotion from a lower
cadre to a higher cadre or from a lower post to a higher post.
• Though, for directly recruited Wireless Inspectors, there is an
avenue of promotion from those posts to the post o~ Wireless In- D
vestigating Inspectors, no such avenue of promotion ha& been
'Shown to exist for Wireless Licence Inspectors appointed from
amongst time-scale clerks. Their avenues of promotion are from
their substantive posts of time-scale clerks. The posts of Wire-
less Licence Inspectors to which time-scale clerks are appointed
E
by selection did not ·constitute a separate cadre and the appoint-
ments are not by way of promotion. The posts of Wireless
Licence Inspectors are in the cadre of time-scale clerks and carry
a special pay on account of additional work."
Special pay of Rs. 30 /- in that case, it may thus be seen something
quite different from the special pay in the instant case which, as we have F
already found, was fitted in lieu of a higher scale of pay .:onsistent with
the higher responsibilities which are entailed in the performance of. his
functions by an A.E.O. All the three clauses· of Fundamental Rule
9(25) correspond with the definition of special pay contained in sub-
'Clau~es (b) & (c) of clause (31) of rule 12 of the Kerala Service Rules I
and none of them takes within its sweep the type of special pay envi· G
saged by sub-clause (a) of rule 12(31). The case cited is thus fully
distinguishable and is of no assistance to the case propounded on be-
half of the State Government.
12. We now take up the second limb of the argument of Mr.
Nair, namely, that even if the post of an A.E.O. is not regarded as
higher to that of an H.S.A. either category-wise or grade-wise, the im- H
pugned reversions are still hit by article 14 of the Constitution of
138 SUPREME COURT REPORTS [1981] 1 S.CR ..

A India. In this connection two important factors have to be taken note·
of. The first is that the post of an A.E.0. carries a special pay of
Rs. 50 /- per month, and, therefore, ensures for its incumbents higher
emoluments than are available to an H.S.A. The second is that the
special pay is counted towards pension as is made out on a reading of
rules 12(23) and 62 of the Kerala Service Rules. According to rule
B 12(23) special pay is part of 'pay' while rule 62 states inter alia that
emoluments which are reckoned for pension include pay as defined'
in rule 12(23). The post of an A.E.O. thus carries with it not only
benefits enjoyable by the incumbent so long as he holds the post but
also such as are available to him after retirement. The substantiar
improvements in the benefits whlch an H.S.A. thus enjoys after his
posting as an A.E.O. constitute a compelling circumstance which would
necessitate the formulation of rational criteria to be followed in trans-
ferring an H.S.A. as an A.E.O. and vice-versa so that mere caprice
does not deprive an A.E.O. of the benefits enjoyed by him. The
direction contained in the letter dated 19-5-1977 that an A.E.O. should
be transferred back as an H.S.A. ;ifter six years of service as A.E.O.
D is wholly arbitrary and not based on any principle. It is, therefore,.
violative of article 14 and we hold it to be so.
13. In the result all the five appeals succeed and are accepted ..
The impugned judgment is set aside and the orders 'transferring' the
appellants from the posts of A.E.Os. to those of H.S.As. are quashed.
E As a necessary consequence if any of the appellants has had to relin-
quish charge of the post of A.E.O. in compliance with such_ orders,
he shall be deemed to have continued to hold the post of an A.E.O.
(in spite of and right from the date of the order of his transfer as
H.S.A.) and to be entitled to all the benefits pertaining to that post,
-·--'
and the respondents are directed to repost him as A.E.O. as expedi-
F tiously as possible and within a month from the date of this order at
.
the latest.
14. We make it clear that the vice of arbitrariness and other in-
firmaties we have pointed out are curable if only the State Government
amends the rules fairly and rationally. This judgment does not stand
G in the way of Government framing new rules or amending the old
rules but such rules must be in conformity with Part III of the
Constitution.
S.R. Appeals ailowed:
Appeal, allowed:.

J