JUDGMENT : Shaffique, J. These Original petitions arise from a common order dated 14/2/2020 in OA (EKM) No. 23/2020 and connected cases. 2. The applicants before the Kerala Administrative Tribunal are employees of the Legislature Secretariat, Kerala Public Service Commission (KPSC), Advocate General’s Office, Teachers of Higher Secondary School (HSST) and an employee of a Public Sector Undertaking. They have approached the Tribunal seeking a direction that they should also be permitted to participate in the selection being conducted to the cadre of Kerala Administrative Service (for short 'KAS'). 3. The Kerala Administrative Service (KAS) Rules, 2018, (hereinafter referred as the ‘2018 Rules’) framed under the Kerala Public Services Act, 1968, created the cadre of KAS. The strength at the entry level in the KAS was limited to 10% of the sanctioned strength of second gazetted post in the departments and equivalent post in the common categories of posts in the departments as specified in Schedule I to the 2018 Rules. There are three streams of selection, all by way of direct recruitment. Stream 1 is from qualified persons between the age of 21 years and 32 as on 1st January of the year in which the applications are invited. Stream 2 is from among full members or approved probationers in any Government Departments excluding gazetted officers from the departments mentioned in Schedule I. The age limit for applying is between 21 years and 40 years. Stream 3 is from among persons who were first gazetted officers or above in the departments mentioned in Schedule 1, and not above 50 years of age as on 1st January of the year in which the applications are invited. Item (3) in column 3 of Stream 3, further indicates the candidate 'must have satisfactorily completed probation in any cadre in Government or probation has not been declared in the current post even after the period of probation due to administrative delay, but against whom no major penalty has been imposed or proceedings for a major penalty or criminal proceedings is in progress'. 4. OP (KAT) No.71/2020 which arises from OA (EKM) No.23/2020 has been filed by an employee of Advocate General's office. He applied under Stream 1 and 2. The application under Stream 2 has been rejected stating that employees of constitutional bodies had been excluded from the purview of Stream 2. 4. OP (KAT) No.71/2020 which arises from OA (EKM) No.23/2020 has been filed by an employee of Advocate General's office. He applied under Stream 1 and 2. The application under Stream 2 has been rejected stating that employees of constitutional bodies had been excluded from the purview of Stream 2. OP(KAT) No.83/2020 arises from OA(EKM) No.97/2020 and OP(KAT) No.80/2020 arises from OA (EKM)No.78/2020. They are also employees of Advocate General's office. Their applications were rejected on the ground that they are employees of constitutional bodies. 5. OP(KAT) No.75/2020 arises from OA No.2567/2019 and OP(KAT) No.76/2020 arises from OA No. 187/2020. The applicants were employees of the Legislature Secretariat. They applied under Stream 2 and their applications were rejected stating that they are employees of a constitutional body. OP(KAT) No.77/2020 arises from OA No.188/2020. The applicants were employees of Legislature Secretariat and applied under Stream 3. Their application has been rejected on the ground that they do not form part of any Government department. According to them, they were originally appointed in the Legislature Secretariat as Assistants and their probation was declared in the said cadre. Presently, petitioners 1 to 3 are working as Block Panchayat Secretaries and 4th petitioner as Sales Tax Officer. They applied under Stream 3 which came to be rejected by stating that their probation was not declared in any cadre of Government department. 6. OP(KAT) No.109/2020 arises from OA No.2417/2019. The applicant was working as Section Officer of Public Service Commission. He applied under Stream 3 which came to be rejected since Public Service Commission was not included in Schedule I of the Rules. OP(KAT) No.78/2020 arises from OA No.149/2020 and OP(KAT) No. 106/2020 arises from OA No.198/2020. They are employees of KPSC. Their applications under Stream 2 were rejected on the ground that they are not employees of Government Department and they are employees of a constitutional body. 7. OP(KAT) No.85/2020 arises from OA No.2338/2019. The applicants were working as HSST in the Schools coming under the Kerala General Education Department. Their application was rejected based on Note 2 to Rule 12 of the 2018 Rules, which was incorporated by way of an amendment. 8. OP(KAT) No.123/2020 is filed against OA No.2287/2019. The applicants in the OA are employees of Public Sector Undertakings. Their applications were rejected on the ground that they have not been included in any of the streams. Their application was rejected based on Note 2 to Rule 12 of the 2018 Rules, which was incorporated by way of an amendment. 8. OP(KAT) No.123/2020 is filed against OA No.2287/2019. The applicants in the OA are employees of Public Sector Undertakings. Their applications were rejected on the ground that they have not been included in any of the streams. They sought for a declaration that Rule 12 of the 2018 Rules to the extent it excludes the employees of Public Sector Undertakings and autonomous institutions from the purview of feeder category is illegal and unconstitutional. 9. The first contention urged by the applicants is that when regular employees or approved probationers in any Government department other than gazetted officers in the departments mentioned in Schedule I are permitted to participate in the selection process under Stream 2, the regular employees of Legislative Assembly, KPSC and Advocate General's office also should be permitted to participate in the selection process, as they are also employees of the Government. 10. Employees of Public Sector Undertakings have challenged the constitutional validity of the Rules, to the extent they were excluded from the purview of the selection process. 11. Teaching staff in the Education department coming under stream 3, have been excluded from participating in the selection process, by amending the 2018 Rules, incorporating Note 2 to Rule 12. They challenge the Note as unreasonable and unconstitutional. 12. The main contention urged by the employees of the Legislature Secretariat, KPSC and Advocate General’s Office is that when the very purpose of creating the cadre of KAS is for building up of public servants as a second line of managerial talent for the effective implementation of Government policies and programmes and thereby to constitute a feeder category for the recruitment of Indian Administrative Service Officers in Kerala cadre through appointment by promotion from State Civil Service category, superseding the existing rules, all Government servants coming within the age limit specified under Streams 2 and 3 ought to be permitted to participate in the selection process. When the whole idea is to get better talents, in addition to 1/3rd of the direct recruitment, the other 1/3rd under Stream 2 and 1/3rd under Stream 3 ought not be limited to certain categories of Government employees alone. 13. When the whole idea is to get better talents, in addition to 1/3rd of the direct recruitment, the other 1/3rd under Stream 2 and 1/3rd under Stream 3 ought not be limited to certain categories of Government employees alone. 13. Learned senior counsel Dr.K.P.Satheesan would argue on behalf of employees of the Legislature Secretariat and KPSC that the service conditions of gazetted and non-gazetted officers are same as that of the employees of State Administrative department. The appointment is made from a common ranked list published by KPSC. Their pay and allowances are also met from the State exchequer. Therefore, the word 'Government department' should be given a wider amplitude and no restriction can be imposed on the said word. As far as the gazetted officers coming under Stream 2 are concerned, the restriction is for Government officers coming under Schedule I and there is no such restriction for gazetted officers working in any other Government department. Therefore, all the Government employees either gazetted or non gazetted coming within the age limit specified under Stream 2 excluding those gazetted officers mentioned in Schedule I are entitled to participate in the selection process. When the Government requires talented persons from among the Government employees, there is no reason to restrict certain category of Government employees from participating in the selection process, is the contention. The learned counsel placed reliance on the following judgments:- (i) Pashupati Nath Sukul v. Nem Chandra Jain [ (1984) 2 SCC 404 ]. (ii) Hokrani S.A. v.Kouslyabai and Others (AIR 1985 Karnataka 138). 14. Learned counsel Sri.T.B.Hood appearing on behalf of certain officers of the Advocate General's office took us through the provisions of the Constitution and submitted that, though the Advocate General is a Constitutional Authority, the employees of the Advocate General's office come under the Law department and therefore, it is nevertheless a Government department and cannot be excluded from Stream 2. 15. Learned counsel Sri.Jacob P. Alex appearing on behalf of HSST in the Education department, argued that Note 2 to Rule 12 excluding HSS Teachers from the purview of selection under Stream 3 is arbitrary and unreasonable. There is no rationale in making such a classification. 15. Learned counsel Sri.Jacob P. Alex appearing on behalf of HSST in the Education department, argued that Note 2 to Rule 12 excluding HSS Teachers from the purview of selection under Stream 3 is arbitrary and unreasonable. There is no rationale in making such a classification. It is pointed out that when Teachers in non gazetted rank can participate in the selection process under stream 2, Teachers in gazetted rank are excluded from participating in the selection by incorporating Note 2 to Rule 12. Learned counsel placed reliance on the judgments of the Apex Court in State of J & K v. Trilok Natha Khosa [ (1974) 1 SCC 19 ], E.V. Chinnaiah v. State of A.P. [ (2005) 1 SCC 394 ], Union of India v. N. S.Rathnam [ (2015) 10 SCC 681 ], Deepak Sibal v. Punjab University [ (1989) 2 SCC 145 ] and Maharashtra Forest Guards and Foresters Union v. State of Maharashtra and Others [ (2018) 1 SCC 149 ], to argue that amongst the classification of gazetted officers coming under Schedule I departments, there should not be a further classification, excluding Teachers. It is pointed out that HSST (Junior)/non gazetted teachers are eligible to apply for the post under Stream 1 and Stream 2. Therefore, excluding the teaching staff of General Education Department from applying under Stream 3, amounts to hostile discrimination under Art.14 of the Constitution. According to him, such a classification is not based on any intelligible differentia, and has no rational nexus with the object sought to be achieved. He placed reliance on the judgments of the Apex Court in Bhudan Choudhry v. State of Bihar ( AIR 1955 SC 191 ), State of Maharashtra v. Indian Hotel & Restaurants Association [ (2013) 8 SCC 519 ] and Bhim Singh v. Union of India [ (2010) 5 SCC 538 ]. Finally it was argued that Note 2 to Rule 12 is manifestly arbitrary and he placed reliance on the judgments in Shayara Bano v. Union of India [ (2017) 9 SCC 1 ], Nikesh Tarachand Shah v. Union of India [ (2018) 11 SCC 1 ], Cellular Operators Association of India v. TRAI [ (2016) 7 SCC 703 ], Maharashtra Forest Guards and Foresters Union (supra) and B. Manmad Reddy and Others v. Chandra Prakash Reddy and Others [ (2010) 3 SCC 314 ]. The learned counsel also took up the cause of an employee of KPSC in OP (KAT) No. 109/2020 as the applicant’s application was also rejected. 16. On behalf of an employee of a Public Sector Undertaking, it was argued that Rule 12 to the extent it excludes employees of Public Sector Undertaking is in violation of Articles 14 and 16 of the Constitution of India. 17. The Tribunal separately considered the contentions urged by the respective applicants treating them under different groups. 18. Group 1 were persons who complained about non inclusion under Stream 3. Their contention was that they have completed their probation in Government service, though they are not part of Government departments specified in Schedule I. The Tribunal held that in so far as the applicants' probation were not declared by the Government, but by the Legislature Secretariat and in the Public Service Commission, they do not form part of either the State service or the Subordinate service. 19. Group 2 consists of employees of Legislature Secretariat, Advocate General's office and KPSC, who applied under Stream 2. The Tribunal found that the employees of the Legislature Secretariat, KPSC and Advocate General’s Office are treated as forming part of independent service and cannot be treated as Government departments. To arrive at the aforesaid finding, the Tribunal had placed reliance on the Constitutional debate by Dr.Ambedkar, the constitutional provisions and judgment of the Apex Court in Re Mehersingh Sani and Others [ (2010) 13 SCC 586 ] and it was held that the employees of Legislature Secretariat and KPSC are not employees of the State Government and they are not approved probationers in Government departments. With reference to the Advocate General's office, it was observed that in so far as the Advocate General is a constitutional authority, the Advocate General's office do not fall within the word 'Government department' and the service of the Advocate General's office is not classified as State service nor as a Subordinate service falling under Schedule I or II of the Kerala Civil Service (CC&A) Rules, 1960. 20. Group 3 were employees of Public Sector Undertakings and Statutory Boards who challenged the 2018 Rules, as amended alleging violation of Art.14 and non inclusion of their category. 20. Group 3 were employees of Public Sector Undertakings and Statutory Boards who challenged the 2018 Rules, as amended alleging violation of Art.14 and non inclusion of their category. The Tribunal in fact placed reliance on the judgment of the Apex Court in Sukhdev Singh v. Bhagatram Sardar Sing Raghuvanshi [ (1975) 1 SCC 421 ] which dealt with a question relating to formation of Public Corporations and finally held that such employees were not civil servants even though Corporations would still be an “other authority” coming within the definition of State under Art.12 of the Constitution. After having considered the scheme of the enactment, it was observed that the service of KAS has been created after carving out 29 departments from 121 departments of the State and therefore there is a reasonable classification for giving an opportunity to employees of Government department under Stream 2, and approved probationers having gazetted rank coming under Schedule departments, under Stream 3. Hence, it was held that 2018 Rules is not vitiated in any manner and it is neither unreasonable nor in violation of Article 14. 21. The teaching staff of General Education Department formed Group IV. They challenged the amendment brought in by the Kerala Administrative Service (Amendment Rules) 2019 by which Note 2 to Rule 12 have been incorporated. As per Note 2, the teaching staff of General Education Department have been excluded from applying under Stream 3. The Tribunal found that when the Government had consciously excluded the teaching staff in the first gazetted post from participating in the selection process, as they do not discharge any administrative duties, the said policy of the Government cannot be interfered exercising the power of judicial review. 22. We have heard the learned senior Government Pleader Sri.Antony Mukkath and Sri.P.C.Sasidharan learned counsel appearing for KPSC. Learned counsel for KPSC placed before us the judgment of the Apex Court in Hargovind Pant v. Dr.Raghukul Tilak and others [ (1979) 3 SCC 458 ]. In a counter affidavit filed in OP(KAT) No.109/2020 it is stated that the preliminary examination was held on 20/2/2020. 23. The 2018 Rules have been framed by the Government in exercise of powers conferred by sub-section (1) of S.2 of the Public Service Act, 1968. The objectives are specified as under: “2. In a counter affidavit filed in OP(KAT) No.109/2020 it is stated that the preliminary examination was held on 20/2/2020. 23. The 2018 Rules have been framed by the Government in exercise of powers conferred by sub-section (1) of S.2 of the Public Service Act, 1968. The objectives are specified as under: “2. Objective: (a) To build a cadre of public servants as a second line of managerial talent for Government for effective implementation of Government policies and programmes. (b) To provide opportunities for growth for bright, talented and committed officers in Government Service and prepare them for senior level administrative and managerial positions in public service. (c) To constitute the feeder category for the recruitment of Indian Administrative Service officers in Kerala Cadre through appointment by promotion from State Civil Service (SCS) category superseding the existing rules in this regard.” 24. As already mentioned, the cadre strength at the entry level in KAS has been limited to 10% of the sanctioned strength of 2nd gazetted post in the departments and equivalent post in the common categories of posts in all departments as specified in Schedule I. Rule 12 specifies the method of appointment and qualification. There are three streams of selection in the proportion 1:1:1. All the three streams are by way of direct recruitment. Stream 1 relates to general category from open market and Stream 2 from full members or an approved probationer in any “Government department”. First gazetted officer or above in departments mentioned in Schedule I have been excluded from Stream 2. Stream 3 are persons who holds first gazetted post in the departments in Schedule I, and who should not have attained the age more than 50 years. In fact, Stream 3 consists of persons who were excluded from Stream 2. An amendment had been brought to Rule 12 by incorporating Note 2 excluding teaching staff from being considered coming under Schedule 1. Note 2 reads as under: “Note 2:-Teaching staff of General Education Department are not eligible to apply under STREAM 3.” 25. Yet another amendment had been brought out in Rule 14(b) where the word 'constitutional bodies' had been deleted. In fact, the contention urged on behalf of some of the petitioners is that initially the Government intended to permit candidates employed in constitutional bodies also to participate in the selection process. Yet another amendment had been brought out in Rule 14(b) where the word 'constitutional bodies' had been deleted. In fact, the contention urged on behalf of some of the petitioners is that initially the Government intended to permit candidates employed in constitutional bodies also to participate in the selection process. But the same had been specifically excluded by deleting the word 'constitutional bodies'. This argument cannot be accepted as there is no reference to any constitutional bodies in Rule 12. Stream 2 and 3 only refers to Government departments and therefore the rule making authority never intended to include employees of constitutional bodies in the selection process. An apparent mistake was corrected by deleting the words 'constitutional bodies' in Rule 14(b). Therefore, the challenge to the said amendment to that extent cannot be sustained. 26. In Pashupati Nath Sukul (supra), the Apex Court was considering the question, whether Secretary of a State Legislative Assembly is qualified to be appointed as Returning officer in an election held to the Rajya Sabha. After referring to S.3(23) of General Clauses Act, 1897 which defines Government, it was held that the word 'Government' in Articles 102(1)(a) and 191(1)(a) of the Constitution and the word 'Government' in the expression “an officer of Government” in S.21 of the Representation of the People Act, 1951 should be interpreted liberally so as to include within its scope, the Legislature, the Executive and the Judiciary. This judgment may not apply to the factual situation since we are concerned with the question as to whether the Secretariat of State Legislature, KPSC and Advocate General’s Office are Government departments or not. Art.187 of the Constitution of India has laid down that the House of Legislature of a State shall have separate Secretarial staff. Art.187(2) further states that the Legislature of a State made by law regulate the recruitment and conditions of service of persons to the secretarial staff of the House of the Legislature of the State and until such provision is made, sub-Article (3) states that the Governor may after consultation with Speaker of the Legislative Assembly make rules regulating the service conditions of appointment. Similarly, KPSC is a constitutional authority and Article 318 enables the Governor of the State to make regulations in relation to the conditions of service of the members and staff. 27. Similarly, KPSC is a constitutional authority and Article 318 enables the Governor of the State to make regulations in relation to the conditions of service of the members and staff. 27. The Karnataka High Court in Hokrani S.A. (supra), considered an issue regarding the interpretation of the words “officers of the State Government” in Section 8(2) of the Rent Control Act, 1961. It was held that the said provision should be interpreted or understood to include within its scope all persons appointed to civil posts in the State who are under the administrative control of the Executive, or the Legislature or the Judiciary. That was a case in which the officer concerned was a member of the High Court staff. It was held that he has to be treated as an officer of the State Government under Section 8(2). This judgment also has no application to the facts in issue. All officers who are being paid from the consolidated fund of the State Government are nevertheless officers of the Government for all practical purposes. But, the question to be considered in the cases on hand is whether they are coming under any Government department or not. The view taken by the Karnataka High Court was with reference to a completely different situation and the ratio in that case cannot be applied to the facts of the present case. 28. In Hargovind Pant (supra) relied upon by the counsel for petitioners, the Apex Court was considering whether the office of Governor is an independent constitutional office and whether it is under the Government of India. After referring to the judgments in Pradyat Kumar Bose v. Hon'ble The Chief Justice of Calcutta High Court [ AIR 1956 SC 285 ] and Baldev Raj Guliani v. Punjab and Haryana High Court [ (1976) 4 SCC 201 ], it was held that: “It will, therefore, be seen that the employment can be said to be under the Government of India if the holder or incumbent of the employment is under the control of the Government of India vis-a-vis such employment.” It was further held that: “There are under the Constitution many other high functionaries, such as Judges of the Supreme Court and the High Courts, who do not hold any employment under the Government of India, although they exercise State power. This Court, while examining the constitutional position of a High Court Judge, pointed out in the Union of India v. S.H. Sheth [ (1977) 4 SCC 193 : 1977 SCC (L&S) 435 : (1978) 1 SCR 423 ] that a High Court Judge is not a Government servant: there is no relationship of employee and employer subsisting between him and the Government.” 29. The Government has taken up a contention that employees of constitutional bodies do not form part of Government departments, whereas the contention of the petitioners is that employees of Legislature Secretariat, KPSC and Advocate General's office are all paid salary by the Government and their service conditions are formulated by the Government and therefore they are Government departments and officers of those Government departments should be permitted to participate in the selection process. The Apex Court in State of Punjab v. Raja Ram [ (1981) 2 SCC 66 ] considered the question whether a Corporation is a Government department. It was held that: “A government department has to be an organisation which is not only completely controlled and financed by the Government but has also no identity of its own.” “The Corporation, on the other hand, is an autonomous body capable of acquiring, holding and disposing of property and having the power to contract”. 30. In National Textile Corpn. Ltd. v. Nareshkumar Badrikumar Jagad [ (2011) 12 SCC 695 ] the Apex Court was considering the question whether the appellant is a Government Department and while negativing the said contention, it was held at paragraphs 23 and 24 as under:- “23. Thus, government department means something purely fundamental i.e. relating to a particular Government or to the practice of governing a country. It has different wings. However, the expression “Government” may be required to be interpreted in the context used in a particular statute. The expression denotes the executive and not the legislature. 24. To perform the functions, the Government has its various departments and to facilitate its working, the Government itself may be divided into various sections. To carry out the commercial activities by the State, the corporations have been established by the enactment of statutes and the “power to charter corporations as incidental to or in aid of governmental functions”. Such corporations would ex-hypothesis be agencies of the Government.” 31. To carry out the commercial activities by the State, the corporations have been established by the enactment of statutes and the “power to charter corporations as incidental to or in aid of governmental functions”. Such corporations would ex-hypothesis be agencies of the Government.” 31. Therefore, as rightly observed by the Tribunal, the Legislature Secretariat, KPSC and the Advocate General are all constitutional functionaries, which cannot be disputed. The Constitution itself provides for administration of the Legislative Secretariat and KPSC. None of the employees are under the administrative control of the Government and their probation are not declared by the Government. According to the Government, there are only 121 Government departments and at the time when the case was heard, the learned Government Pleader submitted a list showing that there are only 97 Government departments at present, which do not include any of the aforesaid organizations. Government department essentially means that those are departments formed for the proper functioning of the Government. It is pointed out that employees are selected to the various posts in the Legislative Secretariat, KPSC and the respective departments of Government through a common entrance test. But, after appointment to different cadres, they come under the administrative control of either Government departments or the constitutional bodies as the case may be. It might be true that the source of selection is the same. But when advices are issued by the KPSC, on the basis of vacancies that are reported by the respective constitutional authorities, once they are appointed to such cadres, they cannot claim parity with employees of other departments. Therefore when the Government, while notifying the special rules for selection had consciously decided to confine Stream 2 to employees of “Government Departments”, it apparently excludes employees working in the office of constitutional functionaries. 32. That the Advocate General is a constitutional functionary, is not in dispute. The employees of the Advocate General's office are definitely under the administrative control of the Advocate General. That being the situation, such employees cannot be termed as employees of a Government department. Therefore, the Tribunal was justified in rejecting their claim. 33. As far as Public Sector Undertakings are concerned, they do not form part of any Government department. Their contention is that non inclusion of employees of Public Sector undertakings amounts to violation of Art.14 of the Constitution. Therefore, the Tribunal was justified in rejecting their claim. 33. As far as Public Sector Undertakings are concerned, they do not form part of any Government department. Their contention is that non inclusion of employees of Public Sector undertakings amounts to violation of Art.14 of the Constitution. The whole intention of the legislature in framing the aforesaid 2018 Rules, is for the purpose of creating a service known as the KAS and the cadre strength has been carved out from the Government departments mentioned in Schedule I and the selection procedure consists of direct recruitment from open market as well as from Government departments. Providing 1/3rd of the cadre strength to employees of Government departments excluding gazetted officers in the departments mentioned in Schedule I, are matters which are within the legislative competence of the Rule making authority. Similarly Stream 3 only recognizes inclusion of first gazetted officers and above in the departments mentioned in Schedule I, who were excluded from Stream 2. In Pandurangarao v. A. P. Public Service Commission ( AIR 1963 SC 268 ), the Constitution Bench held thus: “When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question”. 34. There is nothing wrong in the Government formulating a policy to create a service from among the persons who are employed in the Government departments. It is not for the Courts to substitute its wisdom in the place of the administrator. In Mallikarjuna Rao v. State of A.P., [ (1990) 2 SCC 707 ] it was held:- “12. This Court relying on Narinder Chand Hem Raj v. Lt. It is not for the Courts to substitute its wisdom in the place of the administrator. In Mallikarjuna Rao v. State of A.P., [ (1990) 2 SCC 707 ] it was held:- “12. This Court relying on Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh [ (1971) 2 SCC 747 : (1972) 1 SCR 940 ] and State of Himachal Pradesh v. A Parent of a Student of Medical College, Simla [ (1985) 3 SCC 169 ], held in Asif Hameed v. State of Jammu & Kashmir [1989 Supp (2) SCC 364] as under: (SCC p. 374, para 19) “When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive....” 13. The Special Rules have been framed under Article 309 of the Constitution of India. The power under Article 309 of the Constitution of India to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India.” In Maharashtra State Board of Secondary and Higher Secondary Education & Ors. The courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India.” In Maharashtra State Board of Secondary and Higher Secondary Education & Ors. v. Paritosh Bhupesh Kurmarsheth ( AIR 1984 SC 1543 ), the Supreme Court considered the scope of judicial review in a case of policy decision and held as under-: “The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the Sub-ordinate regulation making body. It may be a wise policy, which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy but is even a foolish one, and that it will not really serve to effectuate the purpose of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is not scope for any interference by the Courts unless the particular provision impugned before it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power or it being is consistent with any of the provisions of the parent enactment or in violation of any of the limitation imposed by the Constitution.” In Dwarka Prasad v. Union of India reported in [ (2003) 6 SCC 535 ] it was held :- “Fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to the policy-making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. Most important of them all is the requirement of the promoting authority for manning the post on promotion with suitable candidates. Thus, fixation of quota for various categories of posts in the feeder cadres requires consideration of various relevant factors, a few amongst them have been mentioned for illustration. Mere cadre strength of a particular post in the feeder cadre cannot be a sole criterion or basis to claim parity in the chances of promotion by various holders of posts in feeder categories. 35. When selection is being done from the open market under Stream 1, any other qualified person employed in any other capacity coming within the age limit has the opportunity to apply and compete. Therefore, there is no exclusion of any category. 1/3rd of the cadre strength is set apart for selection through open channel and any person coming within the age limit can apply. But when it comes to Stream 2 and Stream 3, it is confined to employees of the Government departments. Necessarily the Government can frame a policy to bring in persons who are eligible from various Government departments to be treated as part of KAS. Hence, we do not find any infirmity in confining the selection to employees of the Government departments, and hence the contention of employees of public sector undertakings alleging violation of Article 14, has been rightly rejected by the Tribunal. 36. Now coming to the contention of the HSS teachers who were excluded from applying under Stream 3, we have to consider whether there is any rationale in excluding them by incorporating Note 2. It is true that teaching staff in the Education Department of the Government is permitted to participate in the selection process under Stream 2. Being gazetted officers, HSS teachers come under Stream 3, but still they are excluded. It is true that teaching staff in the Education Department of the Government is permitted to participate in the selection process under Stream 2. Being gazetted officers, HSS teachers come under Stream 3, but still they are excluded. It is settled law and as held in a long line of judgments cited before us that the classification should be based on an intelligible differentia and the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. The first argument of the petitioners is that though classification of departments specified under Schedule I is justified under Stream 2, there should not be a further classification from among the departments specified under Schedule I and exclude the teachers having gazetted rank and above from being part of Stream 3. Learned counsel placed reliance on several judgments of the Apex Court, of which a few are extracted hereunder. 37. In State of J&K (supra), the Constitution bench held as under: “Classification, therefore, must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved.” “Judicial scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation of the basis of classification, for were such an inquiry permissible it would be open to the Courts to substitute their own judgment for that of the legislature or the Rule-making authority on the need to classify or the desirability of achieving a particular object.” 38. In E.V. Chinnaiah (supra), the Constitution Bench held thus: “Legal constitutional policy adumbrated in a statute must answer the test of Article 14 of the Constitution. Classification whether permissible or not must be judged on the touchstone of the object sought to be achieved. If the object of reservation is to take affirmative action in favour of a class which is socially, educationally and economically backward, the State’s jurisdiction while exercising its executive or legislative function is to decide as to what extent reservation should be made for them either in public service or for obtaining admission in educational institutions. If the object of reservation is to take affirmative action in favour of a class which is socially, educationally and economically backward, the State’s jurisdiction while exercising its executive or legislative function is to decide as to what extent reservation should be made for them either in public service or for obtaining admission in educational institutions. In our opinion, such a class cannot be subdivided so as to give more preference to a minuscule proportion of the Scheduled Castes in preference to other members of the same class.” 39. In Union of India (supra), the Apex Court revisited the fundamental principles on classification in the matter relating to grant of exemption from payment of excise duty and held as under: “When the exemption is granted to a particular class of persons, then the benefit thereof is to be extended to all similarly situated persons. The notification has to apply to the entire class and the Government cannot create sub-classification thereby excluding one sub-category, even when both the sub-categories are of same genus. If that is done, it would be considered as violating the equality clause enshrined in Article 14 of the Constitution. Therefore, judicial review of such notifications is permissible in order to undertake the scrutiny as to whether the notification results in invidious discrimination between two persons though they belong to the same class.” 40. In Maharashtra Forest Guards & Foresters Union (supra), the Apex Court was considering the vires of a Rule which stipulated that for promotion to the post of Forester, one among the members of the feeder category should be from the common merit list on the basis of result of the “Limited Departmental Competitive Examination”. For appearing in the examination, the candidates should have (a) completed five years of regular service as Forest Guard in the Forest Department; and (b) possess a degree of a statutory university or any other qualification declared by the Government to be equivalent thereto. The question considered was whether the stipulation that the candidate should be a graduate to participate in LDCE is discriminatory or not. It was held thus: “The LDCE is meant for selection for promotion from the entire lot of Forest Guards irrespective of seniority but subject to minimum five years of service. The question considered was whether the stipulation that the candidate should be a graduate to participate in LDCE is discriminatory or not. It was held thus: “The LDCE is meant for selection for promotion from the entire lot of Forest Guards irrespective of seniority but subject to minimum five years of service. In that situation, introducing an additional restriction of graduation for participation in LDCE without there being any quota reserved for graduates will be discriminatory and violative of Articles 14 and 16 of the Constitution of India since it creates a class within a class. The merit of the 25% cannot be prejudged by a sub-classification. It violates the equality and equal opportunity guarantees. The Forest Guards, irrespective of educational qualifications, having formed one class for the purpose of participation in LDCE, a further classification between graduates and non-graduates for participating in LDCE is unreasonable. It is a case of equals being treated unequally.” 41. In B. Manmad Reddy (supra), the Apex Court held as under: “That leaves us with the question whether any imbalance among those eligible for appointment against Class II Category 1 posts coming from different sources and categories would itself justify a classification like the one made in Note 6. Our answer is in the negative. There is no gainsaying that classification must rest on a reasonable and intelligible basis and the same must bear a nexus to the object sought to be achieved by the statute. By its very nature classification can and is often fraught with the danger of resulting in artificial inequalities which make it necessary to subject the power to classify to restraints lest the guarantee of equality becomes illusory on account of classifications being fanciful instead of fair, intelligible or reasonable.” 42. The second argument is that Note 2 to Rule 12 is irrational and discriminatory, not based on any intelligible differentia between persons holding first gazetted post in Schedule I departments and teachers in Education department, and that there is no material available to indicate that teachers do not have any administrative experience. It also argued that senior teachers alone are discriminated and found to be ineligible under Stream 3, whereas junior level teachers are permitted to participate in the selection process under Stream 2. Budhan Choudhry (supra) was one of the earliest decisions that reiterated the principle underlying reasonable classification. It also argued that senior teachers alone are discriminated and found to be ineligible under Stream 3, whereas junior level teachers are permitted to participate in the selection process under Stream 2. Budhan Choudhry (supra) was one of the earliest decisions that reiterated the principle underlying reasonable classification. It was held thus: “It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.” 43. Finally it is argued that Note 2 to Rule 12 is manifestly arbitrary and reference is made to the judgment of the Apex Court in Shayara Bano (supra) wherein it is held that: “It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.” 44. The above judgment was followed in Nikesh Tarachand Shah (supra) and it is held as under: “At this stage, it is important to advert to the tests for the violation of Article 14, both in its discriminatory aspect and its “manifestly arbitrary” aspect. It is settled by a catena of cases that Article 14 permits classification, provided such classification bears a rational relation to the object sought to be achieved.” 45. The principle underlying the judgments aforecited are well settled. The main contention urged by the learned Government Pleader is that 10% cadre strength of KAS had been carved out from the gazetted post coming under Schedule I. Though teachers form part of the General Education Department, in so far as they have no administrative experience, they form a different class and therefore the Government was justified in excluding them by issuing Note 2. Though not part of records in the above cases, in a counter filed in OA No.2398/2019, in one among the case considered by the Tribunal, the following contention had been urged: “16. It is submitted that the HSST of General Education Department is recruitment and appointed for the purpose of teaching the students of the Higher Secondary level in the State. They are not supposed to perform any administrative or managerial positions in public service except for a few duties to be performed in the post of Principal at the fag end of their career. The recruitment to Stream III was essentially meant to be from the 1st gazette posts of the 29 departments and common category listed in schedule I who carries the responsibility of supervising the administration and managerial responsibilities entrusted by the Government and who have enough experience in the administration matters. The KAS aims to create a blend of talent and experience in the middle level administration of the State. The KAS aims to create a blend of talent and experience in the middle level administration of the State. The Stream III recruitment is meant to absorb those personnel meaning the administrative as well as managerial responsibilities right from the beginning of their employment and have enough experience in the said matter. The HSST post being a teaching post and having no such experience is clearly out of the ambit of the criteria which the Government has envisaged for the Stream III while constituting the service. Further, 2nd gazetted post of the Principals in Higher Secondary Schools have not been listed as part of Schedule II of KAS Special Rules. It will be incongruous to post a KAS officer as Principal of a Higher Secondary School, considering the objectives and aims of the constitution of service.” 46. But it is an admitted fact that teachers who are working under the General Education Department are permitted to participate in the selection process under Stream 2. If the teachers as a class is excluded, there is some rationale in the object to be achieved. But when the teachers are permitted to participate in the selection process under Stream 2, there is no reason to deprive such teachers who are in gazetted rank coming under Stream 3, from participating in the selection process. Of course, persons coming under Schedule I are separately classified under Stream 3 taking into account the fact that the cadre strength have been carved out from the cadre of Stream 3. There might be justification in confining Stream 3 to such departments from where the cadre is created. But the reason stated to avoid teachers coming under gazetted rank is that they do not have administrative experience. But teachers as a whole is not excluded. They are permitted to participate under stream 2. If lack of administrative experience is the criteria for excluding HSS teachers, there is no rationale in permitting non gazetted teachers to participate in the selection under Stream 2. Hence, we do not find any valid reason to classify them separately and exclude them under Stream 3. Apparently the classification is not based on any intelligible differentia, and hence such a classification violates Art.14 of the Constitution of India and is liable to be struck down. In Manomoy Ganguly v. Union of India, [(2018) 18 SCC 83] it was held:- “30. Apparently the classification is not based on any intelligible differentia, and hence such a classification violates Art.14 of the Constitution of India and is liable to be struck down. In Manomoy Ganguly v. Union of India, [(2018) 18 SCC 83] it was held:- “30. We are also one with Mr Venugopal about the scope of judicial review in such matters. The Court, in exercise of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonable and supported by evidence. The Court does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either. The Court does not supplant “the feel of the expert” by its own review. Undoubtedly, this Court is not sitting as an appellate authority over the decision taken in making such appointments and is not supposed to substitute its view for that of the respondent authorities. However, scope of judicial review certainly extends to examining the decision-making process and to see as to whether appropriate process, legally permissible, has been undertaken while taking the decision. While undertaking this examination, the Court can deliberate and ensure that all relevant factors are taken into consideration and, correspondingly, no irrelevant considerations have crept in the decision-making process. These are, among others, the accepted norms of judicial review. After all, discretionary powers conferred on the administration cannot be unguided. No doubt, in such matters, the discretion exercised by the authorities is to be generally accepted. This does not, however, mean that there is no control over discretion of the administration. All powers have legal limits. There is distinction between decision-making process and the merit of the decision. Whereas in the former, the Court applies the standard of judicial review, in the latter, it enters into the merits of the matter. 31. This does not, however, mean that there is no control over discretion of the administration. All powers have legal limits. There is distinction between decision-making process and the merit of the decision. Whereas in the former, the Court applies the standard of judicial review, in the latter, it enters into the merits of the matter. 31. In the leading decision in Chief Constable of the North Wales Police v. Evans [Chief Constable of the North Wales Police v. Evans, (1982) 1 WLR 1155 : (1982) 3 All ER 141 (HL)], Lord Hailsham stated: (All ER p. 144a) “… The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.” 47. We are of the view that the exclusion of HSS Teachers in the Gazetted rank from consideration under Stream III is illegal, irrational and arbitrary and violates Art.14 of the Constitution of India. In the result: (i) OP(KAT) No.85/2020 is allowed. We set aside the order in OA No.2338/2019 and the OA is allowed as under: Note 2 to Rule 12 of the 2018 Rules, is declared to be unconstitutional, being in violation of Article 14 of the Constitution. It is declared that HSS Teachers coming under Stream 3 are entitled to participate in the selection process in terms of the 2018 Rules. (ii) OP (KAT) Nos.71, 75, 76, 77, 78, 80, 83, 106, 109 & 123/2020 are dismissed.