Judgment

BEG, J.:- A Writ Petition, was filed in the High Court of Andhra Pradesh by nine Government servants claiming that Rule 22 of the Andhra Secretariat Service Rules (known as the A. T. A. Rules) does not apply to them "as they are not reverted probationers or probationers who are re-appointed on or after 1-11-1956." The relevant rule reads as follows :

"22. Promotion as Upper Division Clerks and Superintendents and their discharge for want of vacancies.

Notwithstanding anything contained it these Rules or in the General Rules, two out of every three vacancies occurring in the categories of Upper Division Clerks and Superintendents on and from 1-11-1956 shall be filled by reappointment of probationers from Andhra and the remaining one shall be filled by promotion of a person from Telangana in the following order till the list of probationers as it existed on 1-11-1956 is exhausted.

1st vacancy ... Andhra Probationer.

2nd vacancy ... Telangana Probationer.

3rd vacancy ... Andhra Probationer.

Their discharge for want of vacancies shall be in the inverse order of their promotion.

Provided that promotions of personnel from Telangana shall be made on grounds of merit and ability seniority being considered only where merit and ability are approximately equal".

2. In their Writ Petition, the petitioners did not challenge the validity of this Rule. On the other hand, their case, based on the assumption that the rule was valid, was that petitioners 1 to 5, who were already holding the posts of Superintendents on 1-11-1956 the date of the Re-organisation of States were outside its purview. The respondents asserted that the A. T. A. rule had not been implemented so far and had to be applied without delay in the interests of justice, equity, and fairplay to all employees irrespective of the area to which they belonged. A reply also was that it applied to petitioners 1 to 5 as they were promoted on and after 1-11-1956. The real controversy, therefore, was whether petitioners Nos. 1 to 5 were or were not promoted already before 1-11-1956.

3. It is clear that, if there had been an averment, on behalf of the petitioners, that the rule was invalid for, violating Articles 14 and 16 of the Constitution, relevant facts showing how it was discriminatory ought to have been set out. After this had been done, the respondents, including the State of Andhra Pradesh, could have been in a position to set up other facts which may have indicated why the rule was not discriminatory. Such questions cannot be decided without relevant assertions on questions of fact which may have to be investigated if controverted. It is only after facts affecting the validity of such a rule have been set out and an opportunity given to controvert them that a set of either admitted facts or established facts emerges by reference to which the validity of such a rule could be tested and a decision on the question could be given. The petitioners had only prayed for the quashing of the G. O. No. 929 of 29-11-1971 of the Health and Municipal Department fixing the gradation of the petitioners vis-a-vis other employees. They had not prayed for any declaration of invalidity of the A. T. A. Rule. The question of its validity would have affected a number of persons who were not before the Court.

4. The case was referred by a learned Single Judge for decision to a Division Bench on the ground that it raised questions of importance which were likely to affect a large number of people. The judgment of the Division Bench, in the course of a consideration of the contentions of the parties, contained the observation that the Court had already had occasion to consider the validity of the relevant A. T. A. rules in Writ Appeal No. 170 of 1967 on 20-1-1970 (Andh Pra) and that it had held there that the A.T. A. rule was inconsistent with the provisions of the Constitution and was, therefore, invalid. It also said that the same principle had been reiterated in Sathya Kumar v. State of Andhra Prade