Holding

The proviso is constitutionally valid and service in Hindustan Shipyard does not constitute "Government service" for its purposes, rendering the appellant ineligible.

Summary

The appellant, a former advocate, joined Hindustan Shipyard, a Government of India undertaking, and later applied for a District Munsif post under the Andhra Pradesh State Judicial Service Rules. The recruitment rules required three years of legal practice, but a proviso allowed candidates already in "Government service" to count practice immediately prior to joining that service. The Commission rejected the appellant, holding that his service in Hindustan Shipyard did not qualify as "Government service". The High Court initially directed consideration of his candidature, but the Court of Appeal reversed that decision. On special leave, the Supreme Court held that Hindustan Shipyard, though owned by the Union, is a separate legal entity and not "Government service" for the purpose of the proviso, and that the classification does not violate Articles 12 and 14 of the Constitution. Consequently, the appellant was ineligible and the appeal was dismissed.

Issues considered

Whether service in Hindustan Shipyard, a Government of India undertaking, falls within the meaning of "Government service" under the proviso to Rule 12 of the Andhra Pradesh State Judicial Service Rules.
Whether the distinction made by the proviso between Government service and other services infringes Articles 12 and 14 of the Constitution.
Whether the proviso is ultra vires the Constitution.

Legislation cited

Andhra Pradesh State Judicial Service Ruless. Rule 12, s. Rule 2(15)(a)
Constitution of Indias. Article 12, s. Article 14

Subjects

Government serviceJudicial service recruitmentEqualityDiscriminationConstitutional lawAndhra Pradesh State Judicial Service RulesHindustan ShipyardReservationScheduled Castes

Judgment

TH01E BHASKARA RAO A
v.
A.P. PUBLIC SERVICE .COMMISSION AND OTHERS.

NOVEMBER 25, 1987

[A.P. SEN AND LAUT MOHAN SHARMA, JJ.) B

Andhra Pradesh State Judicial Service Rules: Rules 2(15)(a) and
12-District Munsif-Recruitment of-Eligibility conditions-Expe-
rience in 'Government Service'--Whether service in Hindustan Ship-
yard, a Government of India Undertaking can be equated to 'Govern-
ment service.'. c
Constitution of India, 1950: Articles 12 and 14-Hindustan
Shipyard, a Government of India undertaking-Though 'State' for
purposes of Part III of the Constitution-Whether service in such
undertaking 'Government service'-Classification based on difference
in nature of service under Government and that of other services- D
Whether valid-Proviso to Rult' 12 of Andhra Pradesh State Judicial
Service Rules-Validity of.

The appellant who had enrolled himself as an Advocate on
24.2. 77 and practised law till l.4.81 when he was appointed in the
service of the Hindustan Shipyard, an undertaking .owned by the E
Government of India, applied for the post of a District Munsif, in
pursuance of an advertisement elated 25.4.84 issued by the respondent
No. 1-Andhra Pradesh Public Service Commission for filling up, by
direct recruitment, of vacancies reserved for the Scheduled Castes. His
application was rejected by the respondent No. I, as in its opinion, he
did not fulfil the necessary qualificatiQR fixed under Rule 12 of the F
Andhra Pradesh State Judicial Service Rules and was, therefore, in-
eligible for appointment.

The appellant challenged the aforesaid decision before the High
Court. A Single Judge allowed the writ petition and directed the first G
respondent to consider the appellant's candidature. The Letters Patent
Appeal filed by the respondent was allowed and the writ petition was
dismissed.

In the appeal by special leave, the appellant contended that as he
had practised for a requisite period immediately prior to his entering H
35
36 SUPREME COURT REPORTS [1988] 2 S.C.R.

A service of Hindustan Shipyard, an undertaking owned by the Govern·
ment of India, he must be held to be qualified for appointment, that
no distinction ought to be made between experienc.e acquired in
Government service and the one in any other service, whether public
or private in nature, that this discrimination was illegal and ultra vires
and that the word "Government" should be deleted from the proviso
13 to Rule 12 so as to save it from the vice of discrimination. The respon-
dents opposed the appeal on the ground that the appellant was not in
Government service.

C
Dismissing the appeal,

HELD: 1.1 There is no doubt that the expression "Government
service" mentioned in the proviso to Rule 12 of the Andhra Pradesh
State Judicial Service Rules includes service either under the State
--
\

).
Government or the Government of India. Sub-rule (15)(a) of Rule 2
explains that the expression "recruited direct" would refer to a candi-
date including a person in the service of Government of India or the
D Government of State to be recruited directly subject to service condi·
tions mentioned therein. [39A·B]
In the instant case, the Hindustan Shipyard, although a fully
owned undertaking of the Central Government cannot be equated with
the Government or State except for the purpose of part III of the Con-
E stitution. The undertaking has a separate legal entity. The expression
"State" does not by reason of Article 12 of the Constitution include
the undertaking except for the limited purpose which is not attracted
in the present case. The appellant who is in the service of Hindustan
Shipyard'and is not servillg directly the Union of India cannot take
-
advantage of the proviso. [38E·Fl
F
1.2 What is forbidden by the Constitution is discrimination bet-
ween persons who are substantially in similar circumstances or condi·
tious. An equal treatment does not arise as between persons governed
by different conditions and different sets of circumstances. It is obvi- I.
ously permissible to classify persous into groups and such groups may
G be differently treated if there is a reasonable basis for such difference
or distinction. [39C·D]
Having regard to the' difference in the nature of service under
the Government and that of the other services, therefore, a classifica·
tion based on that line caunot be struck down on the ground of illegal
discrimination. The Proviso to Rule 12 must be held to be valid and
H effective. [39D-E]
T.B. RAO v. A.P. PUBLIC SERVICE COMMISSION [SHARMA, J.] 37
·-) CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3400 A
of 1987.

From the Judgment and Order dated 23.1.1986 of the Andhra
Pradesh High Court in Writ Appeal No. 22 of 1985.

M.K. Ramamurthi, Attar Singh and G.N. Rao for the B
Appellant.

T.V.S.N. Chari for the Respondents.

The Judgment of the Court was delivered by

SHARMA, J. The appeliant's application for appointment as a
c
District Munsif by the State of Andhra Pradesh in the quota reserved
for Scheduled Castes was rejf,cted by the Andhra Pradesh Public
Service Commission (briefly described as the 'Commission'), respon-
dent No. 1, which the appellant challenged before the Andhra
Pradesh High Court by a writ petition. The learned Single Judge D
' allowed the prayer and directed the first respondent to consider the
candidature of the appellant for the appointment in question. The
respondents challenged the decision under Clause 15 of the Letters
Patent in the High Court in Writ Appeal No. 22 of 1985. The appeal
y- was allowed and the writ petition was dismissed. We have granted
leave under Article 136 of the Constitution allowing the appellant to E
~
appeal against the said decision.

2. The appointment of District Munsifs is regulated by Andhra
\ Pradesh State Judicial Service Rules (hereinafter referred to as the
I
Rules). In response to an advertisement issued by the 'Commission'
'
y for filling up a large number of vacancies of District Munsifs by direct F
~
recruitment, the appellant applied. Subsequently a second advertise-
ment was issued on 27 .5.1984 with reference to vacancies reserved for
Scheduled Castes, and the appellant made a second application. His
present claim is with respect to these reserved posts.
y
3. After passing the Law Examination the appellant got himself G
enrolled as an Advocate on the rolls of the State Bar Council on
24.2.1977 and practised law till 31.3. 1981. On 1.4.1981 he was
appointed in the service of Hindustan Shipyard, an undertaking
owned by the Government of India, and claims to have remained in
charge of the legal cell. As stated earlier, he applied in pursuance of
the second advertisement dated 27.5. 1984 notified by the 'Commis- H
38 SUPREME COURT REPORTS [1988] 2 S.C.R.

A sion'. In the opinion of the 'Commission' the appellant did not fulfil
the necessary qualification fixed under the Rules, and was therefore
ineligible for appointment.

4. The Rules have laid down three modes for appointment,
namely, by direct recruitment, by promotion and by transfer. Rule 12
B requires inter alia as an essential qualification for a candidate for
·appointment as a District Munsif that he should be in actual practice
and should have been so engaged for not less than ·3 years in a court
of civil or criminal jurisdiction. Since the appellant was not in actual
law practice, reliance has been placed on his behalf on the Proviso to
the aforementioned Rule, which is quoted below:
c "Provided that in the case of a person who is already in
Government service and who applied for appointment to .l
the post of District Munsif by direct recruitment, he must
have actually practised for a period of not less than 3
years immediately prior to the date of his entering the
D Government service." ·

5. It is contended that as the appellant had practised for a req-
uisite period immediately prior to the date of his entering the service of
Hindustan shipyard, he must be held to be qualified for appointment.
The appellant's claim is being refuted by the respondents on the
E ground that he was not in Government service. The stand of the
respondents appears to be well founded. The Hindustan Shipyard,
although a fully owned undertaking of the Central Government, can-
not be equated with the Government or State except for the purposes
-
of Part-III of the Constitution. The undertaking has a separate legal
entity. The expression "State" does not by reason of Article 12 of the
F Constitution include the undertaking except for the limited purpose
which is not attracted in the present case.

6. Mr. Ramamurthy, the learned counsel for the appellant,
appreciating this position, contended that the word "Government"
should be deleted from the Proviso mentioned above, so as to save it
G from the vice of discrimination. The argument is that no distinction
ought to be made between the experience which a candidate acquires
in Government service and the experience one acquires in any other
service, whether public or private in nature. The learned counsel
urged that it is true that the appellant cannot claim to be qualified on
the strength of the Proviso as it stands now but to save it from being
H struck down as illegal, the Court should omit the word 'Government'.
T.B. RAO v. A.P. PUBLIC SERVICE COMMISSION [SHARMA, J.] 39

7. There is no doubt that the expression "Government service"
mentioned in the Proviso includes service either under the State A
Government or the Government of India. Sub-rule (15)(a) of the
definition Rule 2 explains that the expression "recruited direct"
would refer to a candidate including a person in the service of
Government of India or the Government of a State to be recruited
directly subject to certain conditions mentioned therein. The learned B
counsel for the respondents, therefore, rightly said that a servant
under the Government of India must be included within the scope of
the Proviso. Mr. Ramamurthy, learned counsel for the appellant,
fairly conceded that the appellant who is in the service of Hindustan
Shipyard and is not serving direc:tly the Union of India cannot take
.. advantage of the Proviso, if the same as it stands is held to be legally
valid. The attack is on its vires on the ground of illegal discrimina- c
tion. We do not find any merit in this submission. What is forbidden
by the Constitution is discrimination between persons who are sub-
stantially in similar circumsta'lces or conditions. An equal treatment
does not arise as between persons governed by different conditions
and different sets of circumstances. It is obviously permissible to clas- D
sify persons into groups and such groups may be differently treated if
there is a reasonable basis for such difference or distinction. Having
regard to the difference in the nature of service under the Govern-
ment and that of the other services, therefore, a classification based
on that line cannot be struck down on the ground of illegal discrimi-

-
nation. The Proviso in question must be held to be valid and effective E
8. The High Court in the writ appeal while upholding the Pro-
viso has interpreted it differently which does not appear to be cor-
rect. However, since the learned counsel for the respondents while
defending the decision whereby the appellant's writ application was
rejected, has stated that the interpretation put by the Division Bench
was not correct and he does not support it, it is not necessary to F
consider that aspect in detail.
9. In view of our finding in paragraph 7 above, upholding the
validity of the Proviso, as it is, the appellant must fail. Before clos-
ing, however, we would like to point out that the appellant cannot
succeed even if the enabling provision in the Proviso relaxing the G
qualification clause of Rule 12 is held to be ultra vires. Besides, we
have serious doubt whether a court can reframe a rule and give effect
to it as suggested on behalf of the appellant, but we do not consider it
necessary to deal with ihis aspect any further. In the result, the
appeal fails and is dismissed but,. in the circumstances, without costs.
N.P.V. Appeal dismissed. H