1
ANDHRA PRADESH ADMINISTRATIVE TRIBUNAL AT HYDERABAD
MONDAY THE 23RD DAY OF APRIL TWO THOUSAND AND TWELVE
HON’BLE SRI. JUSTICE DR.G.YETHIRAJULU, CHAIRMAN
HON’BLE SRI. SUDHENDER KULKARNI, MEMBER (JUDL.)
AND
HON’BLE SRI. DEEPAK KUMAR PANWAR, MEMBER (ADMN.)
O.A.NO.3784/2007 AND BATCH
Between :
B. Mangaiah and Others
Vs.
The Government of Andhra Pradesh,
Rep., by its Principal Secretary,
Home Department,
Secretariat, Hyderabad.
And Others
----o----
2
(ORDER AS PER HON’BLE SRI SUDHENDER KULKARNI, JUDICIAL MEMBER
ON BEHALF OF THE FULL BENCH)
---o--The applicants in these OAs have assailed the legality and propriety
of the orders passed in pursuance to GO.Ms.No.610, dt.30.12.85, by
invoking the provisions of para-5(2)(c) of the Presidential Order. As a large
number of applications have been filed, the matter is placed before the
Full Bench, as per rules. That is how, the matters were heard and are
being disposed of by the Full Bench.
2.
These OAs are filed aggrieved by the orders passed by the
Government contained in GO.Ms.No.610 dt.30.12.1985 and GO.Ms.No.674
dt.7.9.2007. In furtherance of the said GOs, various departments of the
State have issued orders repatriating non-locals to their respective cadres
(zones).
The applicants are functioning in various capacities under the
jurisdiction and control of various departments of the State in as much as
20,000 employees were transferred in furtherance of Go.Ms.No.610
dt.30.12.1985 and Go.Ms.No.674 dt.7.9.2007. The applicants have filed
these OAs contesting the repatriation orders.
3.
The genesis for issuing G.O.Ms.No.610 GAD dt.30.12.1985 is the
representation of Telangana Non-Gazetted Officers’ Union, wherein it was
3
represented that certain allotments have been made in violation of the
provisions of the Presidential Order.
Government
In order to rectify the violations,
issued Go.Ms.No.674 GAD dt.7.9.2007.
Thereafter,
respective departments have issued various GOs repatriating the persons
who were appointed in excess of their quota.
4.
It would be appropriate to trace out the history behind issuance of
these impugned orders and the history has been succinctly traced out by
the Division Bench of the Hon’ble High Court in the matter of
GOVERNMENT OF ANDHRA PRADESH, REP. BY SECRETARY, SCHOOL
EDUCATION DEPARTMENT vs. P.VEMA REDDY reported in 2007 (4) ALD
209, which reads as follows:
....in brief, prefatory observations on the scope
and purport of Article 371-D and the Presidential
Order made thereunder.
ARTICLE 371-D – CIRCUMSTANCES WHICH
NECESSITATED ITS INTRODUCTION:
(7) State action be it by legislation, plenary or
subordinate, or by an executive order, which denies
citizens equal opportunity and access to public
employment on the ground only of place of birth or
residence, would be invalid qua the provisions of
Article 16(2) of the Constitution of India.
Article
16(3) of the Constitution, which makes an exception
to the limitations under Article 16(2), is confined to
enabling Parliament to prescribe the qualification of
residence in the State as a whole, and not to any
4
part thereof. No legislation is permissible even by
Parliament making the requirement of ‘residence’ in
a part of the State for employment or appointment
to a public office in that State. (A.V.S. Narasimha
Rao Vs. State of A.P. [AIR 1970 SC 422], Ch. Raji
Reddy Vs. A.P.S.R.T.C. rep. by its Regional
Manager, Bhagyanagar Region [2003 (4) ALT 36].
(8) It is with a view to enable prescription of
“residence” in a part of the State for employment or
appointment to posts, and in matters of admissions
in Universities or other educational institutions,
that the Constitution, under Article 371-D, has
made special provisions with respect to the State of
Andhra Pradesh. It is necessary, in this context, to
refer in brief to the events which led to the
introduction
of
Article
371-D
by
the
32nd
amendment to the Constitution.
(9) The former State of Hyderabad comprised of
three linguistic areas: Telengana, Marathwada and
Karnatak. In 1919, the Nizam issued a Firman
promulgating the Mulki Rules. The Nizam confirmed
these Rules by another Firman issued in 1949.
Those Rules provided, inter alia, 15 years residence
in the State as an essential qualification for public
employment.
In 1955 the Rajpramukh, in exercise
of his powers under the proviso to Article 309 of the
Constitution,
framed
the
Hyderabad
General
Recruitment Rules, 1955 in supersession of all
previous
rules
on
the
subject.
These
rules
prescribed a domicile certificate for appointment to
a state or subordinate service, and the issue of
5
such certificate depended upon residence in the
State for a period of not less than 15 years.
(10)
On
November
1,
1956,
on
the
States
Reorganisation Act coming into force, the State of
Hyderabad was trifurcated. The Telengana region
became a part of the newly formed State of Andhra
Pradesh, while Marathwada and Karnatak regions
ultimately
became
parts
of
Maharashtra
and
Mysore (presently Karnataka) States. The State of
Andhra Pradesh was constituted of portions of the
territories drawn from the erstwhile States of
Andhra and Hyderabad.
(11) Soon after formation of the State of Andhra
Pradesh,
Parliament
enacted
the
Public
Employment (Requirement as to Residence) Act,
1957 making special provision for requirement as to
residence for public employment and brought it into
force with effect from
March 21, 1957. The
constitutional validity of this Act was challenged by
persons employed in the ministerial services of the
Govt. of Andhra Pradesh in A.V.S. Narasimha
Rao2and the Supreme Court held Section 3 of the
Act, insofar as it related to the Telangana area,
ultra vires Article 16 of the Constitution.
(12)
Meanwhile,
there
were
two
widespread
agitations, one in the Telangana area and the other
in the Andhra region of the State between 1969 and
1972,
creating
paralysing
State
political
turmoil
and
virtually
administration.
The
political
leaders of the State, considerably exercised over
this situation, made concerted efforts to find an
enduring solution to this problem. On September
6
21, 1973 a Six-Point Formula was evolved by the
political leaders to provide for a uniform approach
for
promoting
accelerated
development
of
the
backward areas of the State so as to secure
balanced development of the State as a whole and
to provide equitable opportunities to different areas
of
the
State
in
matters
of
education
and
employment in public services. Point No.3, 4 and 5
thereof read as under:(3). Subject to the requirements of the State as a whole, local
candidates should be given preference to specified extent in
the matter of direct recruitment to (i) non-gazeted posts (other
than in the Secretariat. Offices of Heads of Department, other
State level officers and institutions and the Hyderabad City
Police) (ii) corresponding posts under the local bodies and (iii)
the posts of Tahsildars, Junior Engineers and Civil Assistant
Surgeons. In order to improve their promotion prospects,
service cadres should be organized to the extent possible on
appropriate local basis upto specified gazetted level, first or
second, as may be administratively convenient.
(4). A high power administrative tribunal should be
constituted to deal with the grievances of services regarding
appointments, seniority, promotion and other allied matters.
The decisions of the Tribunal should ordinarily be binding on
the State Government. The constitution of such a tribunal
would justify limits on recourse to judiciary in such matters.
(5). In order that implementation of measures based on the
above principles does not give rise to litigation and consequent
uncertainity, the Constitution should be suitably amended to
the extent necessary conferring on the President enabling
powers in this behalf.
(13) Implementation of this Six-Point Formula
envisaged,
inter
alia,
amendment
of
the
Constitution conferring power on the President of
India in order to secure smooth implementation of
the measures based upon the Six-Point Formula
without giving rise to litigation and consequent
uncertainty.
It
was
in
pursuance
of
this
requirement of giving effect to the six point formula
that
Article
371-D
was
introduced
in
the
Constitution by the Constitution (Thirty-second
7
Amendment) Act, 1973 which came into force with
effect from July 1, 1974.
(14) The Statement of Objects and Reasons for the
Constitution (32nd Amendment) Act, 1972, reads
thus:“When the State of Andhra Pradesh was formed in 1956,
certain safeguards were envisaged for the Telengana area in
the matter of development and also in the matter of
employment opportunities and educational facilities for the
residents of that area. The provisions of clause (1) of Article
371 of the Constitution were intended to give effect to certain
features of these safeguards. The Public Employment
(Requirement as to Residence) Act, 1957, was enacted inter
alia to provide for employment opportunities for residents of
Telengana area. But in 1969 [in the case of A.V. S.N. Rao v.
Andhra Pradesh, (1969) 1 SCC 839: (1970) 1 SCR 115], the
Supreme Court held the relevant provision of the Act to be
unconstitutional insofar as it related to the safeguards
envisaged for the Telengana area. Owing to a variety of causes,
the working of the safeguards gave rise to a certain amount of
dissatisfaction sometimes in the Telengana area and
sometimes in the other areas of the State. Measures were
devised from time to time to resolve the problems. Recently
several leaders of Andhra Pradesh made a concerted effort to
analyse the factors which have been giving rise to the
dissatisfaction and find enduring answers to the problems
with a view to achieving fuller emotional integration of the
people of Andhra Pradesh. On September 21, 1973, they
suggested certain measures (generally known as the Six-Point
Formula) indicating a uniform approach for promoting
accelerated development of the backward areas of State so as
to secure the balanced development of State as a whole and for
providing equitable opportunities to different areas of State in
the matter of education, employment and career prospects in
public services. This formula has received wide support in
Andhra Pradesh and has been endorsed by the State
Government.
2. This Bill has been brought forward to provide the necessary
constitutional authority for giving effect to the Six-Point
Formula insofar as it relates to the provision of equitable
opportunities for people of different areas of the State in the
matter of admission to educational institutions and public
employment and constitution of an Administrative Tribunal
with jurisdiction to deal with certain disputes and grievances
relating to public services, The Bill also seeks to empower
Parliament to legislate for establishing a Central University in
the State and contains provisions of an incidental and
consequential nature including the provision for the validation
of certain appointments made in the past. As the Six-Point
Formula provides for the discontinuance of the Regional
Committee constituted under clause (1) of Article 371 of the
Constitution, the Bill also provides for the repeal of that
clause”.
8
ARTICLE 371-D: ITS SCOPE:
(15) The primary purpose of introducing Article
371-D was twofold: (i) To promote accelerated
development of the backward areas of the State of
Andhra
Pradesh
so
as
to
secure
balanced
development of the State as a whole, and (ii) to
provide equitable opportunities to different areas of
the State in the matter of education, employment
and career prospects in public service. To achieve
this primary object, clause (1) of Article 371-D
empowers the President to provide, by order, for
equitable opportunities and facilities for the people
belonging to different parts of the State in the
matter of public employment and in the matter of
education. Clause (2) is complementary to clause (1)
and particularizes matters for which an order, made
under clause (1), may provide. Sub-clause (c)(i)
thereof enables the President to specify in his
Order, the extent to which, the manner in which
and the conditions subject to which, preference or
reservation shall be given or made in the matter of
direct recruitment to posts in any local cadre under
the State Government or any cadre under any local
authority. Sub-clause (c) further makes it clear that
residence for a specified period in the local area,
can be made a condition for recruitment to any
such cadre. (Chief Justice of A.P. Vs. L.V.A.
Dixitulu [1979 (2) SCC 34]; P. Sambamurthy Vs.
State of A.P. [AIR 1987 SC 663].
(16) Article 371-D is a special provision which
makes a departure from the general scheme of the
9
Constitution. (Govt. of A.P. Vs. A. Suryanarayana
Rao [1991 (6) SLR 56 (SC)]. The area of departure
cannot,
therefore,
extend
beyond
what
is
unmistakably and specifically delineated by the
words employed therein or in the Presidential Order
made thereunder. Article 371-D, in effect, enables
the
President
to
make
an
order
enabling
prescription of “residence” in a part of the State for
employment or appointment to a public office in
that State.
Clause (10) of Article 371-D gives
overriding effect, both to the provisions of Article
371-D and an order made by the President
thereunder,
over
other
provisions
Constitution and any other law in force.
of
the
Thus,
prescription of “residence” in a part of the State of
Andhra Pradesh is permissible, notwithstanding the
prohibition under Article 16(2), provided such a
prescription has been made under Article 371-D or
the Presidential Order made thereunder. It is also
necessary to note that the scheme of Article 371-D
was held to be valid, intra vires the amending power
of Parliament and as not to militate against the
basic structure of the Constitution.
(Dr. C.
Surekha Vs. Union of India [AIR 1989 SC 44];
Fazal Gafoor Vs. Union of India [AIR 1989 SC
48]; B. Ramesh Vs. University of Health Sciences
[1990 (2) alt 567]; and Devarakonda Rajesh Babu
Vs. NIMS [1997 (6) ALT 290 (FB)]. The provisions
of Article 371-D and the Presidential Order are
insulated from any attack or challenge based on
any other provision of the Constitution or any other
law for the time being in force. It is also not open to
challenge on the ground of violation of Part III or
any other provision of the Constitution,
(Dr. B.
10
Sudhakar Vs. Union of India [AIR 1995 AP 86
(FB)], Dr. Fazal Ghafoor Vs. The Principal,
Osmania Medical College, Hyderabad [1988 (2)
ALT 227], since the Presidential Order has been
given overriding effect.
PRESIDENTIAL ORDER: SCOPE AND EXTENT OF
THE POWER OF THE STATE GOVERNMENT
THEREUNDER:
(17)
In exercise of the powers conferred by clauses
(1) and (2) of Article 371-D of the Constitution the
President made, with respect to the State of Andhra
Pradesh, the “A.P. Public Employment (Organization
of
Local
Cadre
and
Regulation
of
Direct
Recruitment) Order, 1975”, (hereinafter referred to
as the Presidential Order), which was notified in
G.S.R. 524(E) and came into force on 18.10.1975.
Para 2(d) of the Presidential Order defines a local
authority as not include any local authority which
is
not
subject
Government.
to
the
control
of
the
State
Para 2(e) defines “local cadre” to
mean any local cadre of posts under the State
Government organized in pursuance of paragraph
3, or constituted otherwise for any part of the State.
Under Para 2(2), the General Clauses Act, 1897
applies for the interpretation of the Presidential
order as it applies for the interpretation of a Central
Act. Para 3 relates to organization of local cadres
and,
under
sub-para
(1)
thereof,
the
State
Government was hitherto required, within a period
of twelve months from the commencement of the
Order, to organize classes of posts in the civil
services and classes of civil posts under the State
into different local cadres for different parts of the
11
State to “the extent and in the manner hereinafter
provided”. The period of twelve months prescribed in
Para 3(1) was enhanced to eighteen months vide
G.O.Ms. No. 794 dated 12.11.1976 and twenty
seven
months
27.10.1977.
vide
G.O.Ms.
No.
728
dated
The period of twenty seven months
prescribed in Para 3(1), for organizing different local
cadres for different parts of the State, expired on
17.01.1978 and thereafter the State Government no
longer had the power to organize different local
cadres for different parts of the State. With a view
to enable organization thereafter, of different local
cadres for different parts of the State, a proviso was
inserted to Para 3(1), as notified in G.O.Ms. No. 34
dated 24.01.1981, which enables the President,
notwithstanding
the
expiration
of
the
period
specified in Para 3(1), to make an order, whenever
he considers it expedient to do so, requiring the
State Government to organize any classes of posts
in the civil services of and classes of civil posts
under the State into different local cadres for
different parts of the State.
(18) While Para 3(1) ordained the State Government
to organize classes of posts in the civil services of
the State, and classes of civil posts under the State,
into different local cadres for different parts of the
State, the “extent” to which, and the “manner” in
which, such classes of posts were required to be so
organized was, specifically prescribed, to be as
provided thereafter in the Presidential Order. Thus,
not all classes of posts in the civil services of the
State, and not all classes of civil posts under the
State, were required to be organized into local
12
cadres, and it was only to the extent provided for in
the
Presidential
Order
itself
was
the
State
Government required to so organize them into local
cadres. Even under the proviso to Para 3(1), it is
only to the extent the President considers it
expedient that he may make an order requiring the
State Government to organize any classes of posts
in the civil services of the State, and classes of civil
posts under the State, to be organized into different
local cadres for different parts of the State.
(19) The object of organizing different local cadres
for different parts of the State is clear from
Paragraphs 4 and 5 of the Presidential Order.
Under Para 4(1) persons holding posts, required to
be organized into local cadres,were to be allotted to
such cadres by the State Government in accordance
with the principle and procedure specified in the
Presidential Order.
Under Para 5(1) each part of
the State, for which a local cadre has been
organized in respect of any categories of posts, shall
be a separate unit for purposes of recruitment,
appointment, seniority, promotion, transfer etc.
Once a local cadre was organized under Para 3(1)
each part of the State, for which such a local cadre
was organized, was required to be treated as a
separate unit and it is only from amongst persons
allotted thereto was promotions to be effected and
their seniority determined. In view of Para 5(1), a
local cadre is a distinct and separate unit and, for
matters prescribed therein, persons who do not
belong to the said local cadre or those who belong
to other local cadres cannot form part thereof. It is
for this reason that, both in S. Prakasha Rao Vs.
13
Commissioner of Commercial Taxes [AIR 1990
SC 997] and in M. Kesavulu1, the Supreme Court
and the Division Bench of this Court held that a
local cadre, once organized, cannot be meddled
with.
(20) On an analysis of the provisions of the
Presidential Order, it is clear that, having regard to
historical compulsions which led to the introduction
of Art. 371-D, the Presidential Order provides the
framework for intra-state compartmentalization of
certain posts under the rubric of local cadres,
constituted for parts of the State, and protects the
service conditions of members allotted or recruited
to such local cadres.
Local cadres are thus the
result of historical compulsions engendered by
economic and other differentia operating between
parts of the State of Andhra Pradesh and of the felt
grievances of residents of such parts of the State. It
is well to remember the historical compulsions
which led to the making of the Presidential Order,
which is buttressed by the overriding effect given to
the provisions of the Presidential Order not only
against the exercise of majoritarian political and
executive choices of the State, but is also made
operative
against
any
other
provision
of
the
Constitution of India (Article 371-D).
5.
The
contentions
of
learned
counsel
for
the
applicants
Sri.M.Surender Rao, Sri R.V. Mallikarjuna Rao, M.Ram Gopal Rao, Seena
Kumar, K.Narayana and P.Veerabhadra Reddy’s are:
14
(a) GO.Ms.No.610 dt.30.12.85 is contrary to Sub-Para-4, 5 and 6 of
Paragraph-4 of the Presidential Order.
According to Paragraph-3,
the posts have been organized as district cadre, zonal cadre and
accordingly allotment is made under paragraph-4 of the Presidential
Order.
The impugned GO.Ms.No.610 dt.30.12.85 intended to
review allotments of persons holding the posts as on the date of
issuance of the Presidential Order i.e., 18.10.75.
Further, the
impugned GO is not in operation now since the last date for revision
of appointments is 30.6.86 which is over 20 years back. Therefore,
review of appointments made after issuance of the Presidential
Order is contrary to the provisions of Paragraph-4 and Paragraph-13
of the Presidential Order and the ambit and scope of the impugned
GO cannot be enlarged to override the provisions of the Presidential
order itself. Further, under Paragraph-13 of the Presidential Order,
the State has a limited power. The impugned GO meddles with
organized cadres under the Presidential order which is not
permissible and the impugned GO is violative of the Presidential
Order.
(b) Telangana and other Service Associations have no locus to complain
violation of the Presidential Order.
The Government lacks power
15
and jurisdiction to entertain any representation from the Service
Associations. Therefore, G.O.Ms.No.610, dt.30.12.85, has to be set
aside.
(c) The State cannot make inroads into Article 371(d) of the
Constitution of India wherein Sub-Clause-10 of the Article has an
overriding effect.
President alone is empowered to make any
amendments to the Presidential Order.
(d) According to the Presidential Order, the appointments within the
meaning of local cadres can be categorized as : 1) persons who were
appointed before issuance of the Presidential Order i.e., 18.10.75 2)
persons appointed between 18.10.75 and upto organization of
certain posts into local cadres and 3) persons who are appointed
after organization of local cadres. Para-4 of the Presidential Order
deals with the persons who were appointed before the issuance of
the Presidential Order and how to allot the existing persons holding
posts required to be organized into local cadres. Sub-Para-4 of Para4 of the Presidential Order says that any person aggrieved by an
order allotting him to any local cadre may submit a representation
to the State Government within a period of 60 days from the date of
16
communication of the order.
According to Para-4(5) of the
Presidential Order, State Government shall on receipt of such
representation and after consultation with appropriate Committee
constituted under Sub-Para-3 make such order as it deems fit.
It
was provided therein that whenever such order is likely to result in
the change of allotment of any other person, no such order shall be
made without giving any opportunity to other person to make a
representation.
According to this para, there is no provision in the
Presidential Order to review the appointments made before the
Presidential Order.
Therefore, the impugned action of reviewing
the appointments is not in accordance with para-4 of the
Presidential Order.
(e) According to Paragraph-13 of the Presidential Order, appointment
or promotion made after the commencement of the Presidential
Order or order made in pursuance of the provisions to Para-3 as the
case may be, and before any local cadre is organized under the
provisions,
this order or any order made in pursuance with the
provisions to Para-3, to any post which is required to be included in
such cadre shall be provisional and shall, within a period of 12
months, of such organization be reviewed and adjusted in
17
accordance with the provisions of the order.
Therefore, as no
review was made to the appointments made between the periods
within the stipulated period of 12 months, no such review can be
taken up at this distance of time, since the posts were organized into
local cadre way back in the year 1976 itself.
(f) According to Para-8(2) of the Presidential Order, 70% of the posts to
be filled by direct recruitment at any rate in any local cadre under
State Govt. , comprising posts belonging to non-gazetted categories
other than those referred to in item(a ) of Sub-Para 1 and (b) in any
cadre under the local authority comprising posts carrying a scale of
pay, minimum of which are fixed pay which exceeds the minimum of
the scale of pay of a lower division clerk, but does not exceed
Rs.480/- per month or any amount corresponding to it as specified
in this regard in the successive revisions of pay scales granted by the
State Government from time to time shall be reserved in favour of
local candidates in relation to local area in respect of such cadre.
The Government issued instructions for organization of local cadres
in GO.Ms.No.728 dt.1.11.1975. According to Para-4 thereof, a post
shall be deemed to be equivalent to lower than that of Lower
Division Clerk, if the scale of pay of the post or where the post
18
carries a fixed pay, such fixed pay is equal to or lower than the
minimum of the scale of Lower Division Clerk viz., 240 (vide
explanation to para 3(2) of the order). In every subsequent revision,
ever since the Presidential Order, the pay scale of SGT is higher than
the pay scale of LDC / Junior Assistant.
Therefore, in accordance
with the orders in Para-8(2), the ratio of locals and open for
Secondary Grade Teachers and other equivalent categories and
higher categories is 70: 30. Further the Government issued memo
dt.11.12.2009 directing the Commissioner and Director of School
Education, Hyderabad to review the appointment of teachers for the
period from 18.10.1975 to 31.5.2001 in the ratio of 70:30 in favour
of local and open category, and candidates from 1.6.2001 onwards,
it shall be in the ratio of 80:20 which was in force during the
relevant period.
However, the Government issued Go.Ms.No.674
dt.7.9.2007 to review the appointments of SGTs in the ratio of 80%
for the locals and 20% for the open which is contrary to the
Presidential Order and also contrary to the decision of the Hon’ble
High Court reported in 1998 (5) ALT 772 (DB).
(g) The Government issued G.O.Ms.No.2 dt. 3.1.2002 incorporating
S.O.1219 E dt.13.12.2001, which is an amendment to the
19
Presidential Order.
According to the said orders, in Sub-Para-1 of
Para-8, after item-B a new sub-para is added with effect from
1.6.2001 , which reads as follows:
(a) 80% of the posts to be filled by direct
recruitment any time.
a) in any local cadre under the State
Government comprising posts belonging to
the category of lower division clerk or a
Category equivalent to or lower than that
lower division clerk; and
(b) in any cadre under a local authority
comprising post carrying a scale of pay the
minimum of which, or a fixed pay which
does not exceed the minimum of the scale
of pay or a lower division clerk, shall be
reserved in favour of local candidates in
relation to the local area in respect of such
cadre.
“C(i) In any local cadre under the State
Government comprising posts belonging to
the categories of Teachers in the Andhra
Pradesh School Education Subordinate
Service and all other similar equivalent
categories of posts of teachers under any
Department of the State Government; and
(ii) In any cadre under a local authority or
under any such other management, as may
be notified by the State Government from
time to time carrying a scale of pay of pay
equal to that of posts in the Andhra
Pradesh School Education Subordinate
Service shall be reserved in favour of local
candidates in relation to the local area in
respect of such cadre.”
20
(h) Amendments
issued
in
GO.Ms.No.2
dt.3.1.2002
are
only
prospective w.e.f. 1.6.2001 and therefore, selections made up to
31.5.2001 are only 70% for locals and 30% for open category.
However, Government issued GO.Ms.No.674 dt.7.9.2007 to review
the appointments of Secondary Grade Teachers in the ratio of 80%
for locals and 20% for open with effect from 1975 which is contrary
to the Presidential Order and also the law laid down by the Hon’ble
High Court.
According to Para-11 of the Presidential Order, the
provisions of Presidential Order shall have effect not withstanding
anything contained in any statute, ordinance, rule, regulation or
other orders made before or after the Presidential Order in respect
of direct recruitment to posts under State Government or any local
authority.
Therefore, the orders issued in Go.Ms.No.674
dt.7.9.2007 have no relevance and as such said orders are ignorable.
(i) According to the procedure for selection of candidates in
accordance with GO.P.No.763 GAD dt.15.11.1975, the non locals can
be selected at any roster point to the extent of posts available for
open competition.
However, the Govt. issued GO.Ms.No.8 GAD
21
dt.8.1.2002 modifying para-3 and 4 and substituting the following
paras:
“5. In the said orders, in the Annexure-I(5)
(i)
For paragraphs 3 and 4
the following shall be
substituted namely:
“Para 3: The provisional list shall be divided into two
parts. The first part will comprise first 20% of the list.
The second part will comprises the balance 80%. In
case the provisional list does not contain any non-local
candidate in the second part, the list shall be approved.
Para 4: If however on the scrutiny referred to in para 3
it is found that there are non-local candidates in the
second part of the list, then these candidates shall be
removed and replaced by local candidates ensuring that
the rule of reservation is followed.
(ii)
The illustrations thereunder shall be omitted.”
From the above, it is clear that non locals can be selected for the
first 20% of the vacancies only w.e.f. 8.1.2002. These orders cannot
be applied for earlier selections.
However, while repatriating
teachers, the Government have strangely followed subsequent
orders issued in GO.Ms.No.8 GAD dt.8.1.2002 even though the said
GO is not in operation at the time of selection and appointment of
22
the applicants.
cannot
be
It would be relevant to note that accrued rights
divested
retrospectively.
by
seeking
to
enforce
amendments
Further, executive orders operate prospectively
and no retrospective effect can be given to executive orders issued
under Article 162 of the Constitution of India. The power to review
the allotments made should be traced to a relevant statutory
provision. Paragraph-13 of the Presidential Order confers a limited
power. However, a time limit of 12 months is stipulated to review
the allotments made initially. It is settled law that once the act or
statute prescribes the manner in which things have to be done, it
has to be done in that manner alone and not otherwise. Therefore,
the impugned action of the respondents in issuing the repatriation
orders giving effect to the amendments issued in GO.Ms.No.8 GAD
dt.8.1.2002 is highly illegal and arbitrary
as the procedure of
selection cannot be amended retrospectively.
On this point, the
counsel have relied upon the Judgments of the Hon’ble Supreme
Court in the following cases:
(i)
In the case of GOVERNMENT OF ANDHRA PRADESH vs.
MOHD. GHOUSE MOHINUDDIN AND OTHERS reported
in 2001 (8) SCC 416 (Civil Appeal No.1651 and 1652 of
1997)
23
(ii)
In N.T.BEVIN KATH etc., vs. KARNATAKA PUBLIC
SERVICE COMMISSION AND OTHERS reported in AIR
1990 SC 1233.
(iii)
A.A.CALTON
vs.
DIRECTOR
OF
EDUCATION
DEPARTMENT AND ANOTHER reported in 1983 (3) SCC
33.
(iv)
In the case of B.PRABHAKAR RAO AND OTHERS vs.
STATE OF A.P. AND OTHERS ETC., reported in AIR 1986
SC 210 [A.P. Public Employment (Regulation of age of
Superannuation) Amendment Act 3 of 1985.]
(v)
2010 STPL (Web) 504 SC MD RAISUL ISLAM VS. GOKUL
MOHAN HOZARIKA
(j) The applicants by virtue of their appointments in their respective
districts on the basis of rules and procedure of selection then in
vogue have acquired some vested rights in respect of their seniority,
cadre management, right to be considered for promotion to the
higher posts basing on their eligibility and qualifications.
This
vested right cannot be unilaterally taken away on the basis of
24
subsequently amended rules by giving the same retrospective
effect. Moreover, the modified selection procedure in GO.Ms.No.8
dt.8.1.2002 and GO.Ms.No.124 dt.7.3.2002 are only executive
instructions and they cannot be operated retrospectively.
Further,
the President of India is a delegate of Constitution in exercise of
power under Article-371(d). Article 371(d) gives the President the
power to issue orders from time to time for localization of posts of
various categories but does not empower President to bring such
orders into operation retrospectively.
Since the Presidential Order
including amending orders if any create substantive rights and
limitations, the power to issue orders retrospectively cannot be
assumed or inferred when it is not provided for explicitly or by
necessary implications.
The method of procedure which is issued
in implementation of the Presidential Order is executive in nature.
In the absence of statutory rules, it is settled law that executive
instructions prevail. Therefore, procedural instructions for selection
of candidates between locals and open category cannot be effected
retrospectively.
(k) According to the Presidential Order, various posts under State are
organized as district cadre, zonal cadre, multi zonal cadre posts. As
25
such, the holders of the posts like applicants are liable to be
transferred within the district.
By virtue of the impugned orders,
the applicants are posted out of their local unit which is against the
statutory rules and no one can be posted outside the local unit
without his or her consent. Further the applicants are all selected
and appointed in the quota of 30% meant to be filled up by open
category. They are required to be retained in the unit where they
are appointed and they cannot be repatriated outside their unit of
appointment.
The applicants have distinguished the Judgment
rendered in WP.No.23391/2009 and batch (D.V.V.N. MALLESHWARI
CASE).
(l) All selections to the posts under the State are made by duly
constituted Selection Committees and Andhra Pradesh Public
Service Commission. The State Government being an appointing
authority
can
review
Committees/APPSC.
selections
made
by
Selection
The State Government, vide impugned orders
is trying to recast the selection list which was prepared by duly
constituted
Selection
Committees
and
AP
Public
Service
Commission. The Government vide GO.Ms.No.674 dt.7.9.2007 has
directed the departments of the State to review or recast the
26
selections made from 1975 onwards.
In this regard, as per Article
320 (3) (a) of the Constitution, the State Public Service Commission
shall be consulted in all matters relating to method of recruitment to
civil services and for civil posts.
The Government has also
constituted District Selection Committees through statutory rules to
select candidates for different categories of posts like teachers. The
Public Service Commission has made selections to more than one
unit of appointment.
All the selections made by APSPSC are
multiple cadre recruitments. The procedure to select the candidates
to multiple cadres is prescribed in Para-6 of Annexure-III of
GO.Ms.No.763 dt.15.11.1975 which is not amended so far.
If the
selections made to the multiple cadres are to be reduced or recasted, the merit list of all the candidates and the options exercised
by all the candidates are required.
Therefore, the appointing
authorities and the departments cannot recast or review the
selections made by APPSC or DSCs without merit list.
The
Government through an executive order vide GO.674 dt.7.9.2007
cannot direct the department to review or recast the selections
made by the APPSC or District Selection Committees and repatriate
the applicants by transfer to the other units of appointments which
is against law.
27
(m)
In addition to the aforementioned contentions, it is further
contended that no notice and opportunity is given to the applicants
before passing the impugned orders.
Therefore, the action is
violative of principles of Natural Justice.
(n) Furthermore, it is contended that the respondent State could not
have invoked Para-5(2)(c ) of the Presidential Order for passing the
impugned order.
6.
Learned Counsel Mr. J.R.
Manohar Rao, submits that the
Government issued G.O.Ms.No.610 dt.30.12.1985. In due implementation
of the said G.O., repatriation orders are passed in various G.Os.,
repatriating certain persons to their respective zones.
There is no
grievance insofar as G.O.Ms.No.610 dt.30.12.1985 is concerned. After
more than 20 years, due to agitation by one of the political parties, the
Government issued G.O.Ms.No.674 dt.7.9.2007, according to which, the
persons who are appointed contrary to the Presidential Order have to be
repatriated. There is no dispute with regard to the said proposition. The
main grievance is regarding the procedure to be followed while deciding
the
issue
regarding
recruitment
of
non
locals.
G.O.Ms.No.763
28
dt.15.11.1975 deals with the procedure to be followed in the matter of
selection of local candidates (for various categories).
Subsequently, an
amendment was issued vide GO.Ms.No.8 GAD dt.8.1.2002 amending
Annexure-I of the said GO.
Similarly, GO.Ms.No.124 dt.7.3.2002 was
issued amending Annexure-III of GO.Ms.No.763 dt.15.11.1975. The said
amendments are prospective in nature. The question of modifying the
selections made earlier to 2002 does not arise. The selections were made
and finalized basing on the procedure in force as on that day. Now the
Government issued GO.Ms.No.674 dt.7.9.2007, to follow GO.Ms.No.8
dt.8.1.2002 and GO.Ms.No.124 dt.7.3.2002 for reviewing the selections
made prior to 2002.
According to GO.Ms.No.674 dt.7.9.2007, the
employees whose selections were irregular and contrary to the
Presidential Order shall be repatriated to their local cadres by transfer. It
was further stated that transfer shall be ordered in public interest by
protecting the seniority.
If the person was found ineligible to be
appointed/selected, he has to be discharged from service.
If the
Government feels to protect their interest, they can be transferred to
other units without protecting the seniority as those incumbents were not
eligible to be appointed according to the Presidential Order. Protection of
seniority will affect the rights of employees working in other units .
Therefore, the question of protection of seniority should not be permitted.
29
7.
Learned Additional Advocate General Sri K.G. Krishna Murthy,
appearing on behalf of the State submitted that the Government with a
view to rectify the violations in implementation of the Presidential Order
in zone-V and VI, issued GO.Ms.No.610 dt.31.12.1985.
The said GO came
to be issued when the violations were brought to their notice by various
service organizations.
The GO contemplated repatriation of persons to
the respective local cadres for purpose of effectively implementing the
Presidential Order.
The Government constituted One Man Commission
under Sri J.N.Girgilani, IAS (retired) for purpose of implementation of
Go.Ms.No.610 dt.31.12.85.
The Committee conducted an in depth
enquiry into the issue and submitted its report to the State and State
decided to constitute Cabinet sub-committee vide Go.Ms.No.213
dt.4.8.2004. Besides this, a decision was taken to constitute an Officers
Committee for the said purpose vide G.O.Rt.No.1878.
Subsequent
development of working on the report by group of Ministers and accepting
the report of the One Man Commission occasioned in GO.Ms.No.72
dt.4.3.2006.
However, GO.Ms.No.116 was kept under abeyance and
GO.Rt.No.4173 dt.7.8.2006 was issued wherein a decision was taken to
appoint a Committee to examine certain items for early implementation of
GO.Ms.No.610. Thus, after continuous discussion, collection of basic data
30
regarding local candidates and their allotment as contemplated in the
Presidential Order, it has been decided in GO.Ms.No.674 dt.7.1.2007 to
review the appointments from 18.10.1975 and to repatriate non-locals
appointed in excess of percentage to the respective local cadres. This was
done in accordance with the procedure for filling up of vacancies as
substituted vide GO.Ms.No.8 dt.8.1.2002.
Basing on this, the
consequential repatriation orders were issued after duly taking options
from those who are liable to be repatriated.
8.
It is the contention of the State that exercise of power by State
Government is fully within the jurisdiction.
The very purpose of issuing
GO.Ms.No.610 dt.31.12.85 was for rectifying the errors that crept in at the
time of implementation of the Presidential Order.
That being the
situation, the mistakes are to be rectified by resorting to corrective
mechanism, failure of which would result in flouting the special provisions
contained in Article 311 (d) of the Constitution of India and Presidential
Order.
9.
Learned AG further contended that Go.Ms.No.674 dt.7.9.2007
would protect the interest of the individuals who are now transferred
pursuant to the decision to implement the Presidential Order in its full
31
spirit.
This factor is evident from Para-7 of the GO which clearly states
that after specific identification non locals who have been appointed in
deviation shall be repatriated to their respective local cadres by transfer.
The transfers so ordered shall be in public interest as provided in Para-5
(2)( c) of the Presidential Order. In view of this specific provision, Para-8
goes further to state that all the employees so transferred shall be eligible
for TA and protection of seniority as the transfers are made in public
interest.
In view of this, the contention of the applicants that they
suffered prejudice cannot be accepted.
When an action of the
administrative authorities does not visit the employees with civil
consequences or any way prejudices them, the principles of natural justice
need not be followed. Further, implementation of the Presidential Order
which itself is a special provision would have to gain paramount
importance and the individual interest will have to give way to the public
interest. On this point, following decisions are relied upon:
(a) UNION OF INDIA VS. MUSTAFA AND NAJIBAI
TRADING COMPANY reported in 1998(6) SCC 79.
(b) ALIGARH MUSLIM UNIVERSITY vs. MANSOOR
ALI KHAN reported in 2000 (7) SCC 529.
32
(c) COMPETITION COMMISSION OF INDIA VS. SAIL
reported in 2010 (10) SCC 744
10.
Further
learned
Advocate
General
contended
G.O.Ms.No.8 dt.8.1.2002 can be given retrospective effect.
that
The
provisions of the GO would make it clear that Para-3 and 4 of the
Annexure to GO.Ms.No.763 dt.15.11.1975 have been substituted by
new provision.
It is settled principle of statutory interpretation that
the substitutions made to the statutory instruments would have to date
back to the date of giving effect to the main provision.
The
Go.Ms.No.763 dt.15.7.75 details the procedure now stands substituted
by the provisions of GO.Ms.No.8 dt.8.1.2002, as such the procedure of
appointments must be governed by GO.Ms.No.763 dt.15.7.1975 as
substituted by GO.Ms.No.8
dt. 8.1.2002
On this point, he submits
that he is fortified by the decision of the Hon’ble Supreme Court
rendered in the following cases:
(a) JOSE DA COSTA vs. BASCORA SADASIVA SINAI
NARCORNIM reported in 1976 (2) SCC 917.
(b) GURBACHAN
SINGH
VS.
reported in 1990 (1) SCC 445.
SATPAL
SINGH
33
(c) DIRECTOR OF HEALTH OF AP, HYDERABAD AND
OTHERS vs. DR.P.VEERABADHRA RAO AND
OTHERS reported in 2008 (4) ALT 744.
11.
It is the further contention of the learned Advocate General
that
law relating to interpretation of statutes is that provisions which have the
nature of supplying an obvious omission , clearing of doubts and curative
amendments would have to be considered as retrospective.(VIJAY vs.
STATE OF MAHARASHTRA reported in
2006 (6) SCC 289.
The said
decision buttresses his contention as in the case on hand, the procedure
which was adopted results in the Presidential Order not being properly
implemented. This is an obvious error which frustrates the very scheme
of the special provision and this was sought to be cured by specifying a
procedure which would help in furtherance of the avowed object for which
the constitutional amendment was made by inserting Article 371 (d). This
came to be done by issuing GO.Ms.No.8 dt.8.1.2002, according to which
open category vacancies have to be filled up in the first instance which
may also include meritorious local candidates besides non local
candidates. In a given situation, it could also result in all the open seats
being filled up by meritorious local candidates.
In contra distinction to
34
this procedure, filling up of local candidates at the first instance would
result in meritorious open candidates being left out of consideration and
that hits the equitable distribution contemplated in the Presidential Order.
The procedure substituted by G.O.Ms.No.8 dt.8.1.2002 which has cured
this malady and in accordance with Law is to be given effect from the date
on which the Presidential Order has been given effect to that is from
18.10.1975.
12.
Learned Advocate General also contended that another principle of
interpretation consistently followed is that there is a general presumption
of prospectivity in favour of the legislative instruments unless expressly
provided that it would have prospective effects.
Such a presumption is
liable to be made only in cases of statutes and amendments thereto which
are of substantive nature. Such a presumption does not exist in respect of
procedural amendments.
Assuming for the sake of arguments that
amendment has to be presumed to be prospective, in the present
scenario, the amendment being only procedural in nature, such a
presumption cannot be pressed into service.
On this point, he submits
that he is fostered by the decision rendered by the Hon’ble Supreme Court
in the case of ARAVIND KUMAR VS. STATE OF MADHYA PRADESH
35
reported in 2007 (12) SCC 681 and in the case of RAJENDRA KUMAR VS.
KALYAN reported in 2000 (8) SCC 99.
13.
In fact, GO.Ms.No.2 dt.3.1.2002 and GO.Ms.No.8 dt.8.1.2002
through which the procedure and percentage in respect of local
candidates suffered a change was subject matter of litigation before the
Full Bench of this Tribunal in OA.562/2002 and batch. The Full Bench did
formulate the issue whether the amendments issued as per GO.Ms.No.2
dt.3.1.2002 and GO.Ms.No.8 dt.8.1.2002, are prospective or retrospective
in operation.
However, the Full Bench did not consider the issue relating
to prospectivity of the GO, but held that as per the existing law, the ratio
of 80:20 between the local and non local candidates is to be followed.
The Full Bench further concluded that both GO.Ms.No.2 dt.3.1.2002 and
GO.Ms.No.8 dt.8.1.2002 were valid.
A judicial review of the said order
was sought by filing Writ Petition, but even the Hon’ble High Court did not
deal with the issue relating to prospectivity or otherwise of the GO as that
was not the question before the Hon’ble High Court.
Therefore, the
applicants cannot rely on the orders of the Full Bench. Another judgment
of the Full Bench dealt with the issue as to the selections which were made
by the District Selection Committee in 1998 need to be reviewed and the
percentage of local candidate that is liable to be treated as reserved is 80%
36
as against 70% followed then.
This Full Bench also never dealt with the
question of operation of GO.Ms.No.8 dt.8.1.2002, more importantly as to
whether it was prospective or retrospective in its operation.
In view of
this, the contentions of the applicants that the GO must be prospective in
operation cannot be accepted by this Tribunal.
14.
For another contention that has been raised by the applicants that
the question of repatriation is alien to the facts of the present case as it is
not a case of deputation, learned AGP contends that
this submission
cannot stand the scrutiny of this Tribunal as the allotments and
appointments have been made in respect of the posts liable to be thrown
open to all i.e., local and non local have not been filled up, on account of
which, the provisions of the Presidential Order and the purpose for which
it has been framed would get defeated.
The corrective mechanism
adopted by the State Government cannot be legally assailed by the
applicants. Further, this aspect of the matter has been considered by the
Division Bench of the Hon’ble High Court in the case of GOVERNMENT OF
AP vs. B.V.N.MALESWARI in W.P.NO.23391/2009 and batch.
15.
Leaned Advocate General further contended that impugned order
does not call for interference as it is a policy matter.
The Courts’
37
interference with regard to the policy matters has been clearly spelt out in
following decisions:
(a) DILIP KUMAR GARG VS. STATE OF U.P. reported in
2009 (4) SCC 753.
(b) DELHI DEVELOPMENT AUTHORITY VS. JOINT ACTION
COMMITTEE, ALLOTTEE OF SFS FLATS reported in 2008
(2) SCC 672 AT PAGE 672
16.
In view of the legal position, impugned orders have been passed as a
matter of policy to implement the mandates of the Presidential Order in its
true spirit. It does not fall within any of the permissible grounds on which
the said policy decision can be interfered with by this Tribunal in exercise
of its power of judicial review.
17.
Learned Advocate General further contended that the main
contention of the applicants that on account of repatriation their
promotional prospects would be adversely affected, cannot be accepted
because it is settled proposition of law that mere chances of promotion
are not conditions of service and the fact that there is reduction in chances
38
of promotion do not tantamount to changing conditions of service.
this point, he relies on the following decisions:
(a) STATE OF MAHARASTRA vs. CHANDRAKANTH
ANANTH KULKARNI reported in 1981 (4) SCC
130.
(b) R.S. DEODHAR vs. STATE OF MAHARASHTRA
reported in (1974) 1 SCC 317.
(c) STATE OF MYSORE vs. G.N. PUROHIT reported
in 1967 SLR SC 753.
(d) MOHD. SHUJAT ALI vs. UNION OF INDIA
reported in (1975) 3 SCC 76.
(e) MOHD.BHAKAR vs. Y. KRISHNA REDDY reported
in 1970 SLR 768 SC.
(f) RESERVE BANK OF INDIA vs. C.T. DHIGE
reported in (1981) 3 SCC 545.
(g) RESERVE
BANK
OF
INDIA
vs.
C.N.
SAHASRANAMAN reported in (1986) Suppl SCC
143.
(h) PALURU RAMAKRISHNAIAH vs. UNION OF INDIA
reported in (1989) 2 SCC 541.
On
39
(i) K. JAGADEESAN vs. UNION OF INDIA reported in
1990 (2) SCC 228.
18.
Heard both sides. Perused the material on record.
19.
After hearing the counsel appearing on behalf of the applicants and
the learned Advocate General, the following points arise for consideration:
“1.
Whether
Go.Ms.No.610
Go.Ms.No.674 dt.7.9.2007 in
dt.30.12.1985
and
particular para-5 ,
violate the provisions of the Presidential Order
contained in Go.Ms.No.674 dt.20.10.1975?
2. Whether the amendments issued by way of
substitution as per GO.Ms.No.8 Edn., dt.8.1.2002 and
GO.Ms.No.124
dt.7.3.2002
are
prospective
or
retrospective in operation?
3. Whether the Government invoke the provisions
contained in Para-5 of the Presidential Order for
effecting transfers in furtherance of GO.Ms.No.610
dt.30.12.1985 and GO.Ms.No.674 dt.7.9.2007 and
whether the action of the respondents is in violation
of principles of Natural Justice?
4.
Whether the action of the respondent
Government in issuing the repatriation orders
40
amount to tinkering with the rankings assigned by the
selecting authorities like Andhra Pradesh Public
Service
Commission
and
District
Selection
Committees?
5. Whether the vested right of promotion of the
applicants is sought to be taken away?
20.
POINT NO.1:
In order to decide the first point, it would be appropriate to extract
G.O.Ms.No.610 GAD dt.30.12.1985 and G.O.Ms.No.674 dt.7.9.2007.
G.O.Ms.No.610, dated 30.12.1985, read as follows:
“GO.Ms.No.610
1.
2.
3.
4.
Dated:30.12.1985
Read the following:
GO.Ms.No.674 G.A. (SPF.A) Dept., dated:20.10.1975.
GO.P.No.728 G.A. (SPF.A) Dept., dated: 1.11.1975.
G.O.P.No.729 G.A. (SPF.A) Dept., dated:1.11.1975.
From the President, Telangana Non-Gazetted Officers
Union letter Dated:5.12.1985.
...
ORDER:
The GO.1st read above, which is generally known as Presidential
Order contains principles regarding Organization of Local Cadres allotment of
personnel of the various departments to the various local cadres to method of
direct recruitment to the various categories, inter-local cadre in transfers etc.,
of the employees holding those posts. In the GOs 2nd and 3rd read above
clarificatory instructions were issued regarding procedure for implementation
of the various provisions of the Presidential Order.
In accordance with the provisions of the Presidential Order, local cadres
have been organized to the various categories of posts in all Government
41
Departments and allotment of personnel was made as per the guidelines
contained in paragraph-4 of the said order.
In the representation 4th cited, the President, Telangana Non-Gazetted
Officers’ Unions has represented that certain allotments have been made in
violation of the provisions of the Presidential Order.
The Government after carefully examining the issues raised in the
representation and after having vide ranging discussions with the
representatives of the union have entered into an agreement with the
Telangana Non-Gazetted Officers Union on 7.12.1985.
As per the terms of agreement the following Orders are issued:
“(1) The employees allotted after 18-10-1975 to Zones V to VI
in violation of zonalisation of local cadres under the Six Point Formula
will be repatriated to their respective zones by 31.03.1986 by creating
supernumerary posts wherever necessary.
(2)
In Respect of Jurala, Srisailam Left Canal and Sriramsagar Project
Stage II, all the staff in the Non-Gazetted categories both technical and
non-technical including Asst. Executive Engineers (formerly J.Es) coming
under zonalisation of local cadres under the Presidential Order of 1975
who were posted to the Projects from outside zones V and VI after 1-31983, will be re-transferred to their respective zones and posted either in
existing vacancies in supernumerary posts where vacancies are not
available. Towards this the Government will also move the Government
of India for seeking amendment to Government of India's notification
GSR 525-E dated 28-6-1985 to give retrospective effect to this order with
effect from 1-3-1983.
(3)
(a)
In respect of appeals filed against orders of allotment
made under paragraph 4 of the Presidential Order of 1975 to the
competent authority in time and where such appeals are still pending
disposal, all such cases where details are furnished by the T.N.G.O's
Union or individuals, shall be disposed of by 31.3.1986.
(b)
As a result of the above exercise, consequential vacancies
if any, arising shall be filled up as per the procedure laid down under the
Presidential Order.
(4)
In respect of first level Gazetted posts in certain Departments
which are outside the purview of the Presidential Order, action should be
taken to review the question of inclusion of such posts also in the scheme
of localization and the matter should be taken up review the question of
inclusion of such posts also in the scheme of localization and the matter
42
should be taken up with the Government of India for suitable
amendment to the said order.
(5)
The posts in Institutions/Establishment notified in GSR No. 526 (E)
dated : 18-10-1975 shall be filled up by drawing persons on tenure basis
from different local cadres on an equitable basis as per the orders issued
in the G.Os. 3rd read above.
(6)
Provision in Para (5)2(c) of the Presidential Order relating to
inter-local cadre transfers shall be strictly implemented and such
transfers shall b effected only under exceptional circumstances in public
interest.
(7)
Action will be initiated in the concerned departments in cases
brought to their notice regarding bogus registration in Employment
Exchanges.
(8)
On receipt of complaints, if any, made by the TNGOs Union
relating to irregular allotments of candidates particularly to Zone V and
VI in the category of Village Assistants the concerned Department shall
take up the matter with the A.P. Public Service Commissioner and take
such measures as may be necessary to rectify the irregular allotments
made if any.
(9)
The possibility of allotting persons from within the same zone
multi-zone against non-local vacancy in a particular local cadre will be
examined in consultation with the APPSC.
(10) The T.N.GOs. Union will furnish to Government the service
categories where for want of trained personnel, non local candidates are
being appointed in zones. V and VI so that Government can provide
training facilities in respect of such services/categories with a view to
providing adequate opportunities for recruitment and appointment of
local candidates in zones V and VI
(11) The Departments of Secretariat shall complete the review of
appointments/promotions made under the Presidential Order as
required under Para 13 of the said order, by 30.06.1986
(12) (a)
Immediate action will be taken to finalise the common
Gradation list in respect of former Assistant Engineers (Present Dy. EES)
as on 01.11.1956, following the prescribed procedure under the S.R. Act.
1956.
(b)
In respect of former Junior Engineers (Present Asst E.E.s)
the common gradation list published by the Government was quashed
by the A.P. Administrative Tribunal and the Government had gone in
appeal to the Supreme Court. Effective measures will be taken for the
43
disposal of the matter before the Supreme Court, Expeditiously.
(13) The matter relating to allotment of 7 non-local personnel in the
cadre of Inspector of Local Funds Audit belonging to zones 1 to IV, will
be considered by the Department concerned keeping in view the
provisions of the Presidential order.
(14) The question of repatriation of 13 Deputy Executive Engineers of the
Public Health Department working in the city of Hyderabad to zones I to
IV be considered by the Department concerned keeping in view the
provisions of the Presidential Order.
G.O.Ms.No.674 GAD dt.07.09.2007 read as follows:
“GO.Ms.No.674
Date:7.9.2007
Read the following:
1. Circular Memo No.9543/MC/2007-11, General Administration (MC)
Department, dated 2.7.2007.
2. Circular Memo No.9543/MC/2007-13 , General Administration (MC)
Department, Dated: 2.7.2007.
ORDER:
The Andhra Pradesh Public Employment (Organization of Local
Cadres and Regulation of Direct Recruitment) Order, 1975 provides
for reservation in the matter of direct recruitment for Local
Candidates in the different categories of post specified therein.
2. In 1985 Government had issued Go.Ms.No.610 in order to rectify
certain deviations in the implementation of the provisions of the
Presidential Order in Zones V and VI and again in 2001 Government
constituted the One Man Commission (The Girglani Commission) to
receive representations and sort out the anomalies in the
implementation of the Go.Ms.No.610 General Administration (SPF-A)
Department, dated 30.12.1985 and take up follow up action for the
44
rectification of defects, anomalies and irregularities in the
implementation of the Presidential Order and to suggest remedial
actions in matters relating to the Public Employment and it submitted
report on 2.9.2004. The recommendations of the Girglani
Commission were considered and accepted by the Government and in
pursuance thereof, Government directed that a review be conducted
for direct recruitments made from 1975 onwards in order to ensure
that the provisions of the Presidential Order, 1975 are strictly
implemented.
3. Government had issued GO.Ms.No.763 General Administration (SPFA) Department Dated.15.11.1975 laying down the procedure to be
followed in the manner of selections of local candidates.
Subsequently, Government revised the procedure of selection of local
candidates and issued Go.Ms.No.8 General Administration (SPF-A)
Department, dated 8.1.2002 and also decided that the revised
procedure should be made applicable to all direct recruitments in the
State. It was also noticed that in some direct recruitments, the
reservation for locals was reduced to 70% as against the originally
provided 80%.
4. The procedure required to be followed for filling up the posts for open
competition, consistent with the provisions of the Presidential Order
is that all the candidates will be considered adhering to the roster
points as applicable and these should be filled first on the basis of
merit.
After filling these posts, the remaining posts are to be
reserved for Local Candidates (80% , 70% or 60 % , as the case may)
and shall be filled up exclusively by local candidates.
5. By following this procedure and adhering to the prescribed
percentages, the review of appointments conducted has shown that
the appointment of non-locals made in certain Units of appointment
in the recruitment conducted in specified years has not been strictly
in accordance with the percentages and procedures as prescribed.
6. Government have now decided that the non-local candidates
appointed in deviation of the Presidential Order, as identified by the
respective departments by reviewing the direct recruitments made
from 1975 onwards be repatriated to their respective local cadres to
which the candidates would otherwise belong to.
7. After such specific identifications, non-locals who had been appointed
in deviation shall be repatriated to their respective local cadres by
transfer.
The transfers shall be ordered in public interest as
provided under Para 5(2)(c ) of the Presidential Order.
45
8. The employees covered by such transfers shall be eligible for TA and
protection of seniority since the transfers are made in public interest.
9. Illustration: In District Selection Committee 2000 recruitment for the
post of Secondary Grade Teacher (SGT), Telugu medium, 1340
vacancies were notified. Out of these, 1185 vacancies were filled up
which comprised of 834 vacancies for Government Schools and 351
vacancies for Zilla Parishad Schools. The vacancies meant for open
competition in this selection are 167 for Government Schools and 75
for Zilla Parishad Schools. The remaining vacancies reserved for local
candidates of Mahboobnagar District comprised of 667 vacancies for
Government Schools and 276 vacancies for Zilla Parishad School. The
list showing details of this selection is annexed to this order for the
sake of clarity and uniformity.
10. It is advised that the respective Departments should prepare
statements as shown in the illustration such that process can be
implemented through transparent manner. It is further raised that
the statements as shown in the illustration should be made available
in the Web. Copies should be displayed in the Notice Board and also
be made available to those who wish to have them.
11. The Ban on transfer of employees address are not applicable to
transfers effected in pursuance of these orders, as per para 3(11) of
Go.Ms.No.154 Finance (W&M) Department, Dated:4.7.2007.
12. The orders shall be issued by the concerned Secretary to government
since it is an inter local cadre transfer.”
21.
On a plain reading of the aforesaid GOs, it is seen that certain
allotments have been made in violation of the provisions of the
Presidential Order. There was hue and cry by the Telangana Non Gazetted
Officers Union and other Unions and the Government have issued
G.O.Ms.No.610 dt.30.12.1985, at the first instance and subsequently, One
Man Commission was constituted (Girglani Commission) to receive the
representations and to take up follow up action for rectification of defects
46
and anomalies and irregularities in the implementation of the Presidential
Order and to suggest remedial actions in the matter. The Committee had
wide ranging discussions and recommended that a review of the direct
recruitments made from 1975 onwards be conducted, in order to ensure
that provisions of the Presidential Order, 1975 are strictly implemented.
Thereafter, Go.Ms.No.674
dt.7.9.2007
was
issued
accepting
the
recommendations and worked out modalities.
22.
The basis for contention that the impugned GOs are violative of
Presidential Order is based on Paragraph-3 and 4 of the Presidential Order,
which reads as follows:
“3. Organization of local cadres:
(1) The State Government
shall within a period of *twenty-seven months from the
commencement of this Order, organise classes of posts in the
civil services of and classes of civil posts under the State into
different local cadres for different parts of the State to the
extent and in the manner, hereinafter provided.
(*Vide GO.Ms.No.728, G.A. (SPF.A) Dept, dt.27.10.1977).
Provided that, notwithstanding the expiration of the said
period, the President may by order, require the State
Government, whenever he considers it expedient so to do, to
organise any classes of posts in the civil services of and clauses
of civil posts under the State into different local cadres or
different parts of the State.
(Vide GO.Ms.No.34 G.A. (SPF.A) Dept., date 24.1.81)
47
(2) The posts belonging to the category of lower division clerk
and each of the other categories equivalent to or lower than
that of a lower division clerk in each department in each
district shall be organised into separate cadre.
Explanation:- For the purposes of this sub-paragraph, subparagraph (1) of paragraph 6 and sub-paragraph(1) of
paragraph 8 a category shall be deemed to be equivalent to or
lower than that of a lower division clerk if the minimum of the
scale of pay of a post belonging to that category or where the
post carries a fixed pay, such fixed pay is equal to or lower
than the minimum of the scale of pay of a lower division clerk.
(3) The posts belonging to each non gazetted category, other
than those referred to in sub-paragraph (2), in each
department in each zone shall be organized into a separate
cadre.
(4) The posts belonging to each specified gazetted category in
each department in each zone shall be organised into a
separate cadre.
(5) Notwithstanding anything contained in sub-paragraph (3)
and (4), the State government may where it considers it
expedient so to do and with the approval of the Central
Government, organised the posts belonging to any of the
categories referred to therein, in any department, or any
establishment thereof, in two or more contigeous zones into a
single cadre.
(6) Notwithstanding anything contained in sub Paragraphs (2),
(3), (4) and (5), the Central Government; may notify the
departments in which and the categories of posts for which a
separate cadre has to be organised for the City of Hyderabad
48
and on such notification, the posts belonging to each such
category in each such department in the said City (other than
those concerned with the administration of areas falling
outside, the said City) shall be organise into a separate cadre
and the posts so organised in pursuance of this paragraph or
Constituted otherwise and comprising posts belonging to the
category in that department.
(7) In organising a separate cadre in respect of any category of
posts in any department for any part of the State, nothing in
this Order shall be deemed to prevent the State Government
from organising or continuing more than one cadre in respect
of such category in such department for such part of the State.
(8) Where the Central Government is satisfied that it is not
practicable or expedient to organise local cadres under this
paragraph in respect of any non gazetted category of posts in
any department, it may, by notification, make a declaration to
that effect and on such declaration the provisions of this
paragraph shall not apply to such category of posts.
4.Allmotment of Persons: -
(1)
Persons holding posts required to be organised into
local cadres shall be allotted to such cadres by the State
Government or any officer or authority authorised by it in this
behalf in accordance with the principles and procedure
hereinafter specified.
(2)
In allotting persons to local cadres due regard shall
be had to all or any of the following, namely:
(a)the administrative needs of the posts in the local cadres:
(b)the need for the composition of balanced local cadres
49
with reference to age and seniority groups;
(c)the length of service of the persons concerned in the
part of the State for which the local cadre is organised.
(d)knowledge of the persons concerned of the language
spoken and the law in force in the part of the State for
which the local cadre is organised:
(e)preference of the persons concerned for allotment to
any local cadre, where feasible.
(3)
The State Government may, in respect of different
departments and different categories of posts, constitute
committees to advice on the allotment of persons to local
cadres.
(4)
Any person aggrieved by an order allotting him to
any local cadre may submit a representation to the State
Government within a period of sixty days from the Date of
communication of the order.
(5)
The State Government shall on receipt of such
representation and after consultation with the appropriate
committee constituted under sub-paragraph(3) make such
order as it deems fit.
Provided that wherever such an order is likely to result in the
change of allotment of any other person, no such order shall
be made without giving an opportunity to that other person
to make a representation.
(6)
Every order passed by the State Government under
sub-paragraph (5) shall subject to the provisions of clause (3)
of article 371-D of the Constitution of India, be final.”
50
23.
The Pragraph-3 deals with organization of local cadres and the
paragraph-4 deals with allotment of persons. The impugned GOs in the
present batch of cases is neither concerning Organization of the local
cadre nor the allotment of personnel to the local cadres.
Certain
aggrieved service unions felt that there is fallacy in implementation of the
provisions of the Presidential Order.
GO.Ms.No.763 dt.15.11.1975
prescribed the procedure of selection of local candidates.
If the said
procedure is followed where hundred posts were to be filled up and the
reservation in respect of locals is 80%, the procedure that has been
followed would stop at the merit list at 100.
The test prescribed in
GO.Ms.No.763 dt.15.11.75 would apply, it is found to satisfy the
requirement as contemplated in Annexure-I of the said GO, the list would
become final and the appointments would be made as per the said list.
The reasoning of this procedure is that in a given case, persons who are
non locals are found in the merit list commencing from 80 to 100, they
would have to be selected.
By virtue of this procedure, the non-locals
who cannot be said to be meritorious would still be appointed and thereby
the locals in whose favour the Presidential Order provides for a reservation
would be denied the benefit of the same, this would be violative of the
same. If the Presidential Order is followed strictly for achieving the
purpose for which it has been made, local candidates ranking from 101 to
51
120 in the merit list would be deprived of being appointed and in other
procedure for the purpose of appointment would render the Presidential
Order nugatory and this fallacy has been corrected by issuing the
impugned orders. In fact, the appointments which were made right from
1975 were not in consonance with the letter and spirit of the Presidential
Order.
The error which has crept-in in the implementation of the
Presidential Order is being rectified and the exercise of power by the State
is not at all contrary to the provisions of the Presidential Order.
24.
It is a settled proposition of law that a common merit list will have
to be prepared irrespective of caste, community, creed or region, from
which a person comes from, would have been accommodated in the
general merit quota.
It has been held that merely because persons
belonging to such streams earn a superior merit, the percentage of
reservation would not be diminished. The contentions of the applicants
that GO.Ms.No.763 would satisfy that 80% be filled up first is a statement
without any legal basis and a reading of the said GO would make it very
clear that that contention is not at all tenable.
In support of this
contention, Sri Mr. Surender Rao, Counsel, relied upon the Judgment of
the Hon’ble Single Judge in the case of PADMANABHA REDDY VS. STATE
52
reported in AIR 1984 AP 129 and argued that this Judgment would be the
last word on the controversy, which reads as follows:
“16. Now, the Presidential Order defines local area and local
candidates and also provides for reservation in favour of local
candidates, at the same time providing for the President,
requiring the State Government to issue appropriate directions
for the purpose of giving effect to the Presidential Order. The
State Government has, accordingly, issued the directions
contained in G.O.P.No.646, dated 10.7.1979.
These
instructions not only reiterate the definitions of local area and
local candidates, but also prescribe the “manner of
implementation of reservation in favour of local candidates
provided in the Presidential order”.
Annexure-III to
G.O.P.No.646 expressly sets out the manner of implementation
of reservation.
It must, therefore, follow that these
instructions contained in Annexure-III must prevail, and must
be followed even in case the Rules of Admission contained in
G.O.Ms.No.549 say to the contrary, in any respect. The fact
that the Rules of Admission contained in G.O.Ms.No.549 are
statutory, has no relevance, because these Rules must also be
read consistent with, and subject to the Presidential Order, and
the directions issued by the State Government in pursuance
thereof, so long, of course, as the directions given by the State
Government are within the four-corners of the Presidential
Order. In the face of the instructions contained in Annexure-III
to G.O.P.No.646, it is not possible to say that the method
suggested by Mr.H.S.Gururaja Rao should be followed in the
matter of making selections.
17.
Mr. Gururaja Rao sought to contend that the State
Government is empowered to give directions only in the matter
of implementation of reservation in favour of local candidates,
53
but is not empowered to lay down how the 15% of the unreserved seats should be filled up and that, therefore, the
directions of the State Government in Annexure-III cannot
apply in the matter
of filling up the said 15% seats.
A
moment’s scrutiny would expose the fallacy in the argument.
What the State Government has done is to specify the manner
in which the reservation in favour local candidates should be
worked out; the State Government has not purported to lay
down the method of filling up the 15% unreserved seats. It is
not also suggested that, by following the formula contained in
Annexure-III, the rule of reservation in favour of local
candidates is in any manner being defeated, or curtailed.”
25.
We have perused the Judgments. The States contention now made
was already rejected by the Hon’ble High Court dealing with the AP
Educational Institution (Regulation of Admissions) Order, 1974. The said
judgment is not at all applicable to the facts and circumstances obtaining
in the present case. The contention before the Court in that case was that
the rules made regarding admission contained in GO.Ms.No.549 would
have to be followed and the procedure as contemplated in GO.Ms.No.646
is not in consonance with the statutory rules of admission.
Under such
circumstances, the Hon’ble High Court held that the orders passed in
pursuance of the Presidential Order deal with admissions will have to
prevail.
The supremacy of the Presidential Order was upheld.
The
54
validity of GO.Ms.No.646 was not adjudicated.
Therefore, the said
judgment is of no avail to the applicants.
26.
The applicants contended that the impugned GOs are issued without
any direction either from the Central Government or the President. It is
also contended that following of GO.Ms.No.763 dt.15.11.75 was not in
proper implementation of the Presidential Order, was not even the finding
of any judicial forum as well, and as such there was no necessity to change
the procedure established in the said GO. The scheme of the Presidential
Order was also sought to be pressed into service to state that the State
had no role to play except in consonance with the directions of either the
Central Government or the President. This argument seems to be not a
plausible one. It is an admitted fact that Presidential Order has neither
prescribed any procedure for ensuring the reservation contemplated
therein is correctly implemented nor did it authorize any agency to do
that. Obviously, the Presidential Order has not thought it necessary to do
so as it deals with the recruitment to the Civil Services of the State. The
Presidential Order has left the power to the State to decide and workout
the modalities of recruitment and to implement the Presidential Order in
its true letter and spirit. Therefore, the contention that GO.Ms.No.763 is
55
issued without the directions of the President and same cannot be said to
be the part of the Presidential Order, does not hold water.
27.
Another contention is also raised that since the President has not
required the State to issue direction as contemplated under Para-10,
GO.Ms.No.763 itself would not have been issued by the State
Government.
This argument virtually cuts through the main argument
that appointments made in accordance with GO.Ms.No.763 have attained
finality and it cannot be reviewed now.
Since this argument would run
contrary to the main argument , no credence can be given to this point.
28.
We have perused the following judgments relied upon by the
learned counsel for the applicants on this point:
(a) In the case of S.PRAKASHA RAO VS. COMMISSIONER
OF COMMERCIAL TAX AND OTHERS reported in AIR
1990 SC 997.
(b) In the case of
M.KESHAVULU vs. STATE OF A.P.
reported in 2003 (6) ALD 522.
(c) In the case of GOVERNMENT OF ANDHRA PRADESH
vs. P. VEMA REDDY reported in 2007 (3) ALT 287.
56
(d) In the case of V.JAGANNADHA RAO AND OTHERS vs.
STATE OF AP AND OTHERS reported in AIR 2000 (2) SC
77.
(e) In the case of M. SHYAM SUNDER vs. STATE OF A.P.
TR & B DEPARTMENT reported in 2001 (6) ALD 87.
29.
The Hon’ble Supreme Court has decided the case of S.PRAKASHA
RAO VS. COMMISSIONER OF COMMERCIAL TAX AND OTHERS reported in
AIR 1990 SC 997 in the back drop of factual aspects obtaining in that case
and held as follows:
6.
Thus, it is seen that pursuant to the power
given
under cls . (1) & (2) of Art. 371-D the President had issued
the
order
organising local cadres and zone consists of
Adilabad , Warangal, Karimnagar and Khammam revenue
districts. It is the local area for the local cadres. The post of
the Junior Assistant is the district cadre post and the post of
Senior Assistant and Assistant Commercial Taxes Officers, etc.
are the zonal posts.
The State Government is empowered
under the Presidential Order to organise the local cadres
within a period of twelve months from
1975.
October
20,
In pursuance thereof the State Government in
Commercial Taxes Department issued order G.O.Ms. No. 581
dated May
24, 1976 organising zones for the
purpose
of Commercial Taxes Department, namely, Visakhapatnam,
Kakinada,
Krishna,
Warangal, Hyderabad -
Guntur,
1
Triputhi,
and
Karnool,
Hyderabad-II.
Warangal zone consists of revenue districts of Adilabad,
Karimnagar, Warangal and .Khammam. Thus, the Warangal
57
zone of Commercial Taxes Department for the purpose of
recruitment, seniority, promotion, transfer, etc. of
local
cadres is co-terminus with the zone V of the Presidential
Order. The Junior Assistant in each
Warangal
revenue district in
zone is a separate district post , but
the purpose
Assistants
of promotion
to
the post of
for
Senior
and Assistant Commercial Taxes Officers, which
are zonal posts
common
Assistants, Senior
Assistants
seniority
of
the
Junior
working
in
all the four
revenue districts shall have to be maintained and promotions
made in accordance with Ministerial Service Rules or the
Commercial Taxes Subordinate Service Rules issued under
proviso to Art. 309 of the Constitution as the
case may
be.
It would be subject to rule of reservation
for
local
candidates as adumbrated in para 8
Order and
of
the
the general rule of reservation made in Rule 22 in Andhra
Pradesh State and Subordinate Service Rules.
7.
It would
appear
from
the
record that the
Government intended to reorganise, for the purpose of
efficient
administration
Department
zones
of
the Commercial Taxes
and create separate divisions within the
and issued
through G.O.Ms. No. 1900 dated
December 22, 1981 carving out Adilabad and Karimnagar as
Adilabad division
Warangal
of
Taxes
division
the
with
concerned
at Adilabad
options have
and Warangal
and Khammam
the administrative
control
Dy. Commissioner of Commercial
and Warangal. As a follow up action
been called for from the employees and
they have been allotted
in
G.O.Ms. No. 1648 dated
November 22, 1982 to the respective divisions.
disputed that
as
the allotment
in terms of Para 4 of the Order.
It is not
and transfer were not made
As stated earlier this action
58
had given rise to the above .
Representation Petitions and
the orders passed by the Tribunal
and the results ensued
thereunder.
8. Dr.
L.M. Singhvi, the learned Senior Counsel for the
appellants, contends
that paragraph 3(7) of the Order
empowers the State Government to create a zone within the
Warangal zone for the purpose of recruitment, seniority and
promotion. The State Government
in that regard.
There is
has
inherent
power
no express prohibition in that
regard in the order. The phrase 'or constituted otherwise'
engrafted in the definition of local cadre in paragraph 2(e)
read with
paragraph 3(7) gives ample power to the State
Government to
zone
for
organise any local cadre within
the
the Commercial Taxes Department.
The
action thus, taken by the State Government is clearly within
its power.The
contra finding recorded by the Tribunal is
illegal. He placed strong
reliance
on a decision of a single
member Tribunal made in R.P. No. 101 of 1982 and batch
dated April 1, 1982.
He
maintaining harmony in
State Government
further
contended that in
Centre-State
relationship, the
shall continue to have
its inherent
power to organise its local cadre to meet the exigencies
of its administrative needs. The prior approval or concurrence
of the Central Government is redundant. We find no force in
these contentions. It is already seen that in exercise of the
power
under paragraph 3(1) of the
Order
the
State
Government shall, within a period of twelve months from the
date of the commencement of the Order, organise class or
classes of posts in the civil services of, and class or classes
of civil posts, under the State into different local cadres for
different parts of the State in the manner therein provided.
It is already seen that through G.O. Ms. No. 581, the
59
State Government in fact
Commercial
local
had
organised
Taxes Departments by constituting different
cadres and Warangal zone comprised of the
revenue districts, namely, Adilabad, Karimnagar,
and Warangal
the
four
Khammam
was declared as local area for local cadres
of the Department.
Having
done
so,
the question
emerged whether the State Government has further power to
reorganise
the
local cadre within the zone. In our
considered view, we have no hesitation to hold that once the
State Government has organised the
class
or classes of
posts in the civil services of and class or classes of civil posts,
under the State as local cadres, it ceases to have any power to
bifurcate or reorganise a zone within a zone, cadre or cadres
therein. In exercise of the power under proviso to paragraph
3(1), it is for the President notwithstanding the expiry of the
period of twelve months prescribed in sub-paragraph (1) of
paragraph 3, by
an
order
require
the
State
Government whenever he considers it expedient so to do to
have the power under paragraph 3(1) exercised. Thereby, it
is clear that
the State Government shall have to place
necessary material before the President; the President shall
consider
that it
is expedient
to organise any class or
classes of 573 posts in the civil services of and class or classes
of civil posts, under the State into a further local cadre within
the local cadre in the zone already prescribed and to pass an
order in that regard requiring the State Government to so
organise it. It is made clear that for the purpose of efficient
administration or convenience, the State Government may
create division/divisions within the local area or local cadre.
But for the purpose of recruitment, seniority, promotion,
discharge, etc. the local cadre once organised under
para
3(1) shall be final and continue to be operative until action is
60
taken under proviso to subparagraph (1) of paragraph 3 of
the Order. When we
enquired the learned counsel for the
State, Shri Madhava Reddy candidly conceded that no order
of the President, as provided under the proviso, was made.
Therefore, the action taken by the State Government in
issuing G.O.Ms. No. 1648 dated November 20, 1982 is clearly
illegal and invalid contravening the proviso
to
sub-
paragraph (1) of paragraph 3, undoubtedly it contravened
para 4
30.
of the Order.”
It was contended that for promotion from the post of Senior
Assistant to the post of Assistant Commercial Tax Officer, zonal seniority of
Warangal local area comprising of Warangal, Khammam, Karimnagar and
Adilabad is the criteria.
Adilabad Division consisting of Adilabad and
Karimnagar districts of Commercial Tax department cannot be treated to
be a zone and divisional seniority prepared by the department is bad in
law. The Hon’ble Supreme Court has held that creation of a Division and
maintaining separate seniority of Junior Assistants and Senior Assistants
for Adilabad and Warangal Division are illegal and contrary to the orders
issued in GO.Ms.No.581 and the AP Public Employment (Organization of
local cadres and Regulation of Direct Recruitment) Order, 1975. The State
had attempted to meddle with organized zonal cadre and intended to
carve out zone within a zone.
Under these circumstances, the Hon’ble
Supreme Court held that State has no power to meddle with the posts
61
organized under the Presidential Order. No such attempt is made in the
case on hand.
31.
The Government of AP intended to bring out a unified cadre of
teachers in the government, Mandal Parishad and Zilla Parishad schools.
In fact, in the earlier round of litigation i..e, in the case of M.KESHAVULU
vs. STATE OF A.P. reported in 2003 (6) ALD 522 and in the case of
GOVERNMENT OF ANDHRA PRADESH vs. P. VEMA REDDY reported in 2007
(3) ALT 287, the Hon’ble High Court interfered with the matter and the
matter is carried in appeal to the Hon’ble Supreme Court and pending
before the Hon’ble Supreme Court.
The Hon’ble High Court has struck
down Act.27/2005 which intended to integrate cadres of teachers and
other employees in Government, Mandal Parishad and Zilla Parishad
schools.
32.
It further held that Section 3(1) and 4(1) of the Act 27/2005 in effect
abolish local cadres through a circuitous process of abolishing cadres
which were organized into local cadres and in effect abolishing the local
cadres themselves.
62
33.
These Judgments cannot be of any relevance. It is a settled principle
in the law of precedents that judgments are to be read in the context in
which they have been rendered. Phrases and sentences cannot be picked
up and read in isolation. Thus, these two Judgments would also be of no
avail to the applicants.
34.
Further, the applicants placed reliance on the decision in the case of
V.JAGANNATH RAO AND OTHERS vs. STATE OF AP AND OTHERS reported
in AIR 2000 (2) SC 77 wherein it has been held as follows:
“14.
In Sadanandam s case, while considering the legality
of amended provisions of the
Rules framed by the State
Government and in sustaining the same, this Court was of the
opinion that as the aforesaid rules had been framed under
Section (3) of the Andhra Pradesh Ordinance 5 of 1983 read
with
paragraph 5(2)(a) of the Presidential Order, the
conclusion of the Tribunal in striking down the rule is
erroneous.
The Court was of the opinion that mode of
recruitment and category from which the recruitment to a
service should be made are policy matters exclusively within
the purview and domain of the executive and it would not be
appropriate for judicial bodies to sit in judgment over the
wisdom of the executive in choosing the mode of recruitment
or the categories from which the recruitment should be made.
In our considered opinion, both the aforesaid reasons do not
constitute a true interpretation of the provisions of the
Presidential Order. At the outset, it may be noticed that Article
371-D (10) of the Constitution unequivocally indicates that the
63
said Article and any order made by the President thereunder
shall have effect notwithstanding anything in any other
provision of the Constitution or in any other law for the time
being in force.
Necessarily, therefore, if it is construed and
held that the Presidential Order prohibits consideration of the
employees from the feeder category from other units then such
a rule made by the Governor under the proviso to Article 309
of the constitution will have to be struck down. Then again in
exercise of powers under paragraph 5(2) of the Presidential
Order if the State Government makes any provision, which is
outside the purview of the authority of the government under
para 5(2) of the Order itself, then said provision also has to be
struck down.
Having construed the rules framed by the
Governor under proviso to Article 309 of the Constitution from
the aforesaid stand point, the conclusion is irresistible that the
said rule to the extent indicated by the Tribunal is
constitutionally invalid and its conclusion is unassailable. In the
case in hand, the impugned provisions do not appear to have
been framed in exercise of powers under paragraph 5(2) of the
Presidential Order and as such the same being a rule made
under proviso to Article 309 of the Constitution, the
Presidential order would prevail, as provided under Article 371D (10) of the Constitution. Even fit is construed to be an order
made under Paragraph 5(2) of the Presidential Order, then also
the same would be invalid being beyond the permissible limits
provided under said paragraph. In this view of the matter, the
Tribunal rightly held the provision to the extent it provides for
consideration of employees of the Factories and Boilers units to
be invalid, for the purpose of promotion to the higher post in
the Labour unit and as such we see no justification for our
interference with the said conclusion of the Tribunal and the
earlier judgment of this Court in Sadanandam s case(supra)
64
must be held to have not been correctly decided.
As a
consequence, so would be the case with Satyanarayana Rao s
case (supra).
15. Notwithstanding our aforesaid conclusion, it would be in
the interest of the administration to have a channel of
promotion for every service, so as to avoid stagnation at a
particular level, subject however to the condition that the
incumbents of a service are otherwise qualified to shoulder the
responsibilities
of
the higher promotional post.
The
appropriate authority of the Government, therefore, should
bear this in mind and consider the feasibility and desirability of
continuing the supernumerary posts already created in the
Boilers and Factories Department on a permanent basis, so that
the employees from the lower echelon in the said Department
have a promotional channel or, to make suitable promotional
avenue at least upto some level, so that there would not be any
discontentment amongst the employees in the concerned
Department.
The appeals are without any merit and are accordingly
dismissed.”
35.
In the above case, the Hon’ble Supreme Court was considering the
validity of the rule which provided for transfer of employees from the
subordinate officers to the Heads of the Departments under the rule which
contemplate promotion in the form of appointment by transfer. It was in
that background, the Hon’ble Supreme Court held that giving a wider
meaning to the term transfer as contained in Para-5 (2) would be
65
rendering the Presidential Order nugatory. This is not the position in the
present case.
36.
The matter in the case of SHYAM SUNDER vs. STATE OF AP. TR & B
DEPARTMENT reported in 2001 (6) ALD 87 pertains to the question of
determination of seniority of the Engineers in the AP Roads and Buildings
Engineering Service, wherein it has been held as follows:
“42. FURTHER more, those DEEs belonging to other zones who
want to be impleaded in these Writ Petitions were not before
the tribunal and they did not choose to file any such petitions
before the tribunal. This is another distinction from Vittals case
(supra) and this case. Be that as it may we allowed the learned
counsel for the proposed respondents to make their
submissions and also file written submissions.
We have
considered these submissions and they have no bearing on the
points we have framed for consideration. We accordingly
decide Point No.1 in favour of the writ petitioners and against
the proposed respondents holding that the proposed
respondents are neither necessary parties nor proper parties.
The miscellaneous petitions, filed for impleadment are
dismissed. In Re Point Nos.2 and 4:
43. WHETHER the government is not justified in reviewing the
seniority list of DEEs in Zones V, VI and VII, issued in
G.O.Ms.No.314, dated 29.11.1994 purporting to act on the
directions issued by the Division Bench of this court in
W.P.No.5834 of 1994?
66
44. WHAT is the scope and power of para 13 of A.P. Public
Employment (Organisation of Local Cadres and Regulation of
Direct Recruitment) Order, 1975 and Rule 36 of the A.P. State
and Subordinate Service Rules?
45. THESE two points can be considered together. Before the
tribunal it was contended on behalf of the Government that
earlier on a premise known that the cadre strength in zones V,
VI and VII have not been properly filled G.O.ms.Nos.259 and
260 and G.O.Ms.No.18 were issued. These two orders were
upheld by the Tribunal.
Though the S.L.P. against that
judgment was dismissed, no order on merits was passed and
therefore, the Government has power to review the panels,
which was already modified/reviewed in the two government
orders. It was also the submission that final seniority list in
G.O.Ms.No.314 was issued based on the earlier two
Government orders which were not correct. Therefore, after
the judgment of the Full Bench in O.A.No.41796 of 1997 and
batch which was modified by this court in W.P.No.5834 of
1998 the government thought it fit that it is now permissible to
rectify the mistakes and review/revise the seniority list which is
not illegal nor contrary to Special rules or general rules. The
same position is reiterated before us. Sri P.Balakrishna Murthy,
however, submits that G.O.Ms.Nos.259 and 260 were issued in
exercise of power conferred in paragraph 13 of the Presidential
Order and therefore it is not permissible for the government to
resort to review for second time. It is further contended that as
the Tribunal has confirmed the validity of the G.Os.259 and 260
it is not open to the Government to again revise the final
seniority list issued in G.O.Ms.No.314 dt.29.11.1994.
46. THE seniority list of DEEs from 1.4.1965 to 31.12.1982 and
thereafter till 31.12.1987 has been subject-matter of litigation.
67
At no point of time till issuance of G.O.Ms.No.314 there was
seniority list, which could be called final. When the matter was
pending at various stages of litigation, the Presidential Order
came into force. As noticed supra clause(10) of Article 371-D of
the Constitution of India gives an overriding effect to Article
371-D as well as “any order made by the President
thereunder”.
Therefore, the Presidential Order insofar as
recruitment, appointment, discharge, seniority, promotion and
transfer and in respect of such other matters, as may be
specified by the State Government, has overriding effect.
Indeed, para 5 of the Presidential Order says that each part of
the state for which local cadre has been organized
shall be
separate unit for the purpose of conditions of service referred
to herein.
As a necessary corollary, even in matters of
appointment, promotion and seniority, Presidential Order
alone shall prevail. The Special Rules had not contemplated
the method and manner of preparing the seniority list and only
general rules deal with the same. When there is overlapping
between the General rules and the Presidential Order, the
presidential Order alone shall have to be given full effect.
47. AS required under para 3 of the presidential Order, the
State Government within a period of 18 months from the
commencement of the Presidential Order i.e., from 18.10.1975
shall have to organized classes of posts in the civil service into
different local cadres in different parts of the State. If the local
cadres are not organized under para 3 of the Presidential Order
within a period of 18 months, then what would happen? The
proviso to para 3 states that notwithstanding the expiration of
the period of 18 months, the President may require the State
Government to organize any classes of posts into civil services
and classes of civil posts in the State into different local cadres
for different parts of the State. This aspect of the matter was
68
considered by a three-Judge Bench of the Supreme Court in
Prakash Rao v. Commissioner of Commercial Taxes.
relevant observations are as follows:…..
The
In our considered
view, we have no hesitation to hold that once the State
government has organized the class or classes of posts in the
civil services of and class or classes of civil posts, under the
State as local cadres, it ceases to have any power to bifurcate
or reorganize a zone within a zone, cadre or cadres therein. In
exercise of the power under proviso to paragraph 3(1), it is for
the President notwithstanding the expiry of the period of
twelve months prescribed in sub-paragraph (1) of paragraph 3,
by an order require the State Government whenever he
considers it expedient so to do to have the power under
paragraph 3(1) exercised.
Thereby, it is clear that the State
Government shall have to place necessary material before the
President; the President shall consider that it is expedient to
organize any class or classes of posts in the civil services of and
class or classes of civil posts, under the State into a further local
cadre within the local cadre in the zone already prescribed and
to pass an order in that regard requiring the State government
to so organize it. It is made clear that for the purpose of
efficient administration or convenience, the State government
may create division/divisions within the local area or local
cadre.
But for the purpose of recruitment, seniority,
promotion, discharge etc., the local cadre once organized under
para 3(1) shall be final and continue to be operative until action
is taken under proviso to sub-paragraph (1) of paragraph 3 of
the Order.”
37.
Though an issue as to what is the scope and extent of power under
paraghraph-13 of the Presidential Order was framed, this case will not be
69
applicable as it is not a case of State Government that the appointments
made from 18.10.75 were provisional.
Thus, this Judgment cannot be
pressed into service when factually this Tribunal is called upon to deal with
an issue totally different from what was considered by the Division Bench
of the Hon’ble High Court. It is the case of all the parties here-to that
Presidential Order is supreme. Therefore, the aforesaid Judgments which
were rendered in factually different context cannot be made applicable to
the present case.
38.
The next contention that para-8 of the Presidential Order cannot be
imported in para-5 is also not acceptable. Paragraph-5 would deal with
the consequence of being appointed to a local cadre and transfer of
persons from one cadre to the other, whereas
reservation to the local candidates.
para-8 deals with
The respondents have invoked
paragraph-5 in the present case for the purpose of ensuring that the
Presidential Order is properly implemented in the letter and spirit of the
Presidential Order.
Reservation is undoubtedly provided in para-8 but
the modalities for ensuring that is made in consonance with the
Presidential Order and any order issued for the purpose of setting right the
maladies that occurred in implementation of the same would undoubtedly
be in the public interest. As per Para-5(2)(c ) of the Presidential Order,
70
transfer of persons from one local cadre to another local cadre is
permissible. This power vested in the said clause cannot be curtailed by
reading only a part of it.
We have examined the provisions of
G.O.Ms.No.610 dt.30.12.85
and G.O.Ms.No.674 dt.7.9.2004.
The
provisions of the said GOs do not violate the provisions of the Presidential
Order. Therefore, this point is held against the applicants.
39.
POINT NO.2:
On perusal of GO.Ms.No.8 dt.8.1.2002 and
GO.Ms.No.124 dt.7.3.2002, it is clear that provisions contained in para-3
and 4 of the Annexures to GO.Ms.No.763 dt.15.7.1975 have been
substituted by new provisions.
It is a settled principle of statutory
interpretation that substitutions made to the statutory instruments would
have to date back to the date of giving effect to the main provision.
GO.Ms.No.763
dt.15.11.75
which
details
procedure
now
stands
substituted by GO.Ms.No.8 and as such the procedure of appointments
must be governed by the provisions of GO.Ms.No.763 dt.15.7.1975 as
substituted by GO.Ms.No.8.
40.
point.
There are plethora of decisions of Hon’ble Supreme Court on this
The Hon’ble Supreme Court in the case of GOVT. OF INDIA vs.
71
INDIAN TOBACCO ASSOCIATION reported in 2005 (7) SCC 396 has held as
follows:
“2.
Interpretation of the expression "substitute" falls
for
determination in this appeal which arises out of a judgment and
order dated 30.01.2004 passed by a Division Bench of the Andhra
Pradesh High Court in Writ Petition No.21674 of 2002.
15.
The word "substitute" ordinarily would mean "to put (one) in
place of another"; or "to replace". In Black's Law Dictionary, Fifth
Edition, at page 1281, the word "substitute" has been defined to
mean "To put in the place of another person or thing". or "to
exchange". In Collins English Dictionary, the word "substitute" has
been defined to mean "to serve or cause to serve in place of
another person or thing"; "to replace (an atom or group in a
molecule) with (another atom or group)"; or "a person or thing that
serves in place of another , such as a player in a game who takes
the place of an injured colleague".
16. By reason of the aforementioned amendment no substantive
right has been
taken away nor any penal consequence has been
imposed. Only an obvious mistake was sought to be removed
thereby.
41.
In the case of ZILE SINGH vs. STATE OF HARYANA AND OTHERS
reported in (2004) 8 SCC 1, it has been held as follows:
“4. It took more than six months for the State Legislature to
realise its error. The Haryana Municipal (Second Amendment)
Act, 1994 (Act 15 of 1994) was enacted by the legislature which
received the assent of the Governor of Haryana on 3.10.1994
and was published in the Haryana Gazette (Extraordinary)
72
dated 4.10.1994. Section 2 of the Second Amendment reads as
under:
“2. In the proviso to clause (c) of sub-section (1) of Section 13-A
of the Haryana Municipal Act, 1973 (hereinafter called the
principal Act), for the word ‘after’, the word ‘upto’ shall be
substituted.”
….
8. At the very outset we may state that the retrospectivity in
operation of the text as amended by the Second amendment
came up for the consideration of a two-Judge Bench of this
Court in Sunil Kumar Rana v. State of Haryana [(2003) 2 SCC
628]. This Court held that the legislative intent to compute the
period of one year under the proviso is from the
“commencement of this Act” meaning thereby from the date of
coming into force of Haryana Act 3 of 1994 and not Haryana Act
15 of 1994 which merely substituted the word “after” by the
word “upto”. The result of the substitution was to read the
provision as amended by the word ordered to be substituted.
……
14. The presumption against retrospective operation is not
applicable to declaratory statutes… In determining, therefore,
the nature of the Act, regard must be had to the substance
rather than to the form. If a new Act is “to explain” an earlier
Act,
it
would
retrospectively.
be
without
object
unless
construed
An explanatory Act is generally passed to
supply an obvious omission or to clear up doubts as to the
meaning of the previous Act. It is well settled that if a statute
is curative or merely declaratory of the previous law
retrospective operation is generally intended… An amending
Act may be purely declaratory to clear a meaning of a provision
73
of the principal Act which was already implicit. A clarificatory
amendment of this nature will have retrospective effect.
15. Though retrospectivity is not to be presumed and rather
there is presumption against retrospectivity, according to
Craies (Statute Law, 7th Edn.), it is open for the legislature to
enact laws having retrospective operation.
This can be
achieved by express enactment or by necessary implication
from the language employed. It is a necessary implication from
the language employed that the legislature intended a
particular section to have a retrospective operation, the courts
will give it such an operation. In the absence of a retrospective
operation having been expressly given, the courts may be
called upon to construe the provisions and answer the question
whether the legislature had sufficiently expressed that
intention giving the statute retrospectivity.
Four factors are
suggested as relevant: (i) general scope and purview of the
statute; (ii) the remedy sought to be applied; (iii) the former
state of the law; and (iv) what it was the legislature
contemplated.
The rule against retrospectivity does not
extend to protect from the effect of a repeal, a privilege which
did not amount to accrued right.
17. Maxwell states in his work on interpretation of Statutes
(12th Edn.) that the rule against retrospective operation is a
presumption only, and as such it “may be overcome, not only
by express words in the Act but also by circumstances
sufficiently strong to displace it”. If the dominant intention of
the legislature can be clearly and doubtlessly spelt out, the
inhibition contained in the rule against perpetuity becomes of
doubtful applicability as the “inhibition of the rule” is a matter
of
degree
which
would
“vary
secundum
materiam”.
74
Sometimes, where the sense of the statute demands it or
where there has been an obvious mistake in drafting, a court
will be prepared to substitute another word or phrase for that
which actually appears in the text of the Act.
18. In a recent decision of this Court in National Agricultural
Coop. Marketing Federation of India Ltd. V. Union of India
{2003) 5 SCC 23 , it has been held that there is no fixed formula
for the expression of legislative intent to give retrospectivity to
an enactment.
Every legislation whether prospective or
retrospective has to be subjected to the question of legislative
competence.
The retrospectivity is liable to be decided on a
few touchstones such as: (i) the words used must expressly
provide or clearly imply retrospective operation; (ii) the
retrospectivity must be reasonable and not excessive or harsh,
otherwise it runs the risk of being struck down as
unconstitutional; (iii) where the legislation is introduced to
overcome a judicial decision, the power cannot be used to
subvert the decision without removing the statutory basis of
the decision.
There is no fixed formula for the expression of
legislative intent to give retrospectivity to an enactment. A
validating clause coupled with a substantive statutory change is
only one of the methods to leave actions unsustainable under
the unamended statute, undisturbed.
Consequently, the
absence of a validating clause would not by itself affect the
retrospective operation of the statutory provision, if such
retrospectivity is otherwise apparent.”
75
42.
In the case of JOSE DA COSTA AND ANOTHER
vs. BASCORA
SADASIVA SINAI NARCORNIM AND OTHERS reported in (1976) 2 SCC 917,
it has been held as follows:
“31.
Before ascertaining
the
effect of
the
enactments
aforesaid passed
by the Central Legislature on pending suits or
appeals, it would
be appropriate
to bear in mind two well-
established principles. The first is that while provisions of a statute
dealing merely
with matters of procedure may properly, unless
that construction be textually inadmissible, have retrospective
effect attributed to them, provisions which touch a right in existence
at the passing of the statute are not to be applied retrospectively in
the absence of express enactment or necessary intendment …
The second is that a right of appeal being a substantive right the
institution of a suit carries with it the implication that all successive
appeals available under the law then in force would be preserved to
the parties to the suit throughout the rest of the career of the suit.
There are two exceptions to the
application of this rule, viz (1)
when by competent enactment such right of appeal is taken away
expressly or impliedly with
retrospective effect and (2) when the
Court to which appeal lay at the commencement
stands
abolished
(Garikapati
Veeraya
of the suit
v. N.
Subbiah
Choudhary : AIR 1957 SC 540 and Colonial Sugar Refining Co. Ltd. v.
Irving :
43.
1905 AC 369).
In the case of GURBACHAN SINGH vs. SATPAL SINGH AND OTHERS
reported in (1990) 1 SCC 445, it has been held as follows:
“37.
The provisions of the said Section do not create any new offence
and as such it does not create any substantial right but it is merely a
matter of procedure of evidence and as such it is retrospective and will
be applicable to this case. It is profitable to refer in this connection to
76
Hals-bury's Laws of England, (Fourth Edition), Volume 44 Page 570
wherein it has been stated that:
"The general rule as mat all statutes, other than those
which are merely declaratory or which relate only to
matters of procedure or of evidence, are prima facie
prospective, and retrospective effect is not to be given to
them unless, by express
words or necessary implication,
it appears
that this was the intention of the
legislature....”
38. It has also been stated in the said volume of Halsbury's Law of England
at page 574 that:
"The presumption against retrospection does
to legislation concerned merely with
procedure or of evidence; on the
that nature are to be
there is a
not apply
matters
of
contrary, provisions of
construed as retrospective unless
clear indication that such was not the intention
of Parliament."
44.
The aforesaid decision is followed in the case of ARVIND KUMAR
AND ANOTHER vs. STATE OF MADHYA PRADESH reported in (2007) 12
SCC 681.
45. In the case of RAJENDRA KUMAR vs. KALYAN (DEAD) BY LRS. reported
in (2000) 8 SCC 99, it has been held as follows:
“22.
The law thus seems to be well settled that no person has, in fact, a
vested right in procedural aspect one has only a right of prosecution or defence
in the manner as prescribed by the law for the time being and in the event of any
change of procedure by an Act of Parliament one cannot possibly have any
right to proceed
with the pending excepting as altered by the
new legislation and as such we need not dilate on the issue any further.”
77
46.
The Division Bench of the Hon’ble
DIRECTOR
OF
HEALTH,
A.P.,
High Court in the case of
HYDERABAD
AND
OTHERS
vs.
DR.P.VEERABHADRA RAO AND OTHERS reported in 2008 (4) ALT 744
considering the Judgments of the Hon’ble Supreme Court in the case of
GOVT. OF INDIA vs. INDIAN TOBACCO ASSOCIATION reported in 2005 (7)
SCC 396, in the case of WEST U.P. SUGAR MILLS ASSOCIATION vs. STATE
OF U.P. reported in (2002) 2 SCC 645, in the case of UNION OF INDIA vs. C.
RAMA SWAMY reported in (1997) 4 SCC 647 has held that an amendment
to State and Subordinate Service Rules by way of substitution would date
back to the date on which the main instrument was given effect to.
47.
Another reason on which the theory of prospectivity and
retrospectivity cannot be pressed into service is that provisions in the
nature of clarifications or supplying an obvious omission must be
considered as being retrospective. On this principle, the Hon’ble Supreme
Court in the following cases has held as follows:
(a)
In the case of Jose Da Costa and Another v.Bascora
Sadasiva Sinai Narcornim and Ors reported in 1976 ( 2)
SCC 917 , it has been held as follows:
“31.
Before ascertaining the effect of the enactments
aforesaid passed by the Central Legislature on pending suits or
appeals, it would be appropriate to bear in mind two well-
78
established principles. The first is that while provisions of a
statute dealing merely with matters of procedure may properly,
unless that construction be textually inadmissible, have
retrospective effect attributed to them, provisions which touch a
right in existence at the passing of the statute are not to be
applied retrospectively in the absence of express enactment or
necessary intendment …
The second is that a right of appeal being a substantive right the
institution of a suit carries with it the implication that all successive
appeals available under the law then in force would be preserved
to the parties to the suit throughout the rest of the career of the
suit. There are two exceptions to the application of this rule, viz
(1) when by competent enactment such right of appeal is taken
away expressly or impliedly with retrospective effect and (2) when
the Court to which appeal lay at the
stands
abolished (Garikapati
commencement of the suit
Veeraya v. N. Subbiah Choudhary
: AIR 1957 SC 540 and Colonial Sugar Refining Co. Ltd. v. Irving :
1905 AC 369).
(b) In the case of GURBACHAN SINGH vs. SATPAL SINGH
reported in (1990) 1 SCC 445, it has been held as follows:
“37. The provisions of the said section do not create any new offence
and as such it does not create any substantial right but it is merely a
matter of procedure of evidence and as such it is retrospective and
will be applicable to this case.
It is profitable to refer in this
connection to Halsbury’s Laws of England, Fourth Edition, Volume 44
page 570 wherein it has been stated that:
“The general rule is that all statutes, other than those which are
merely declaratory or which relate only to matters of procedure or of
evidence, are prima facie prospective, and retrospective effect s not
79
to be given to them unless, by express words or necessary
implication, it appears that this was the intention of the legislature…”
48.
Thus, it is a settled proposition of law relating to interpretation of
statutes that provisions which have the nature of supplying an obvious
omission, clearing of doubts and curative amendments would have to be
considered as retrospective. In the case on hand, procedure which was
adopted resulted in the Presidential Order not being properly
implemented. This error which frustrates the very scheme of the special
provision, was sought to be cured by specifying a procedure which would
help in furtherance of the avowed object for which constitutional
amendment was made by inserting Article 371(D). The mistake has been
cured by issuing GO.Ms.No.8 dt.8.1.2002 according to which open
category vacancies were to be filled up in the first instance which may also
include meritorious local candidates besides non local candidates. In a
given situation it would also result in all the open seats being filled up by
meritorious local candidates. Any contra distinction to the said procedure
while filling up of local candidates at the first instance would result in
meritorious open candidates being left out of consideration and that hits
the equitable distribution contemplated in the Presidential Order.
The
procedure substituted by GO.Ms.No.8 has cured this illness and in
80
accordance with law it is to be given effect from the date on which the
Presidential Order has been given effect to i.e., 18.10.1975.
49.
Any principle of interpretation consistently followed by the court is
that, that is a general presumption of prospectivity in favour of legislative
instruments unless expressly provided that it would be retrospective is
untenable.
Such a presumption is liable to be made only in cases where
statutes and amendments thereto which are of substantive nature. Such
a presumption does not exist in respect of procedural amendments.
Assuming for the sake of argument that amendment has to be presumed
to be prospective, in the present case the amendment being only
procedural in nature, such a presumption cannot be pressed into service in
the light of following dicta of the Hon’ble Supreme Court:
(a) In the case of ARVIND KUMAR vs. STATE OF M.P.
reported in (2007) 12 SCC 681, wherein it has been held as
follows:
“15. The contention of the learned counsel for the accused that
the presumption enumerated under Section 113-A of the
Evidence Act is not attracted in the present case does not merit
acceptance.
It is well-settled law that presumption with
respect to the procedural matters is normally to be construed
as prospective (sic retrospective).
Section 113-A does not
create any new offence or makes it punishable. It only deals
with presumption which the court may draw in particular fact
81
situation. This court in Gurbachan Singh held in Air para 36 as
under:
“37[36]. The provisions of the said section do not create any
new offence and as such it does not create any substantial right
but it is merely a matter of procedure of evidence and as such it
is retrospective and will be applicable to this case.
It is
profitable to refer in this connection to Halsbury’s Laws of
England, Fourth Edition, Volume 44 page 570 wherein it has
been stated that:
“The general rule is that all statutes, other than those which
are merely declaratory or which relate only to matters of
procedure or of evidence, are prima facie prospective, and
retrospective effect s not to be given to them unless, by
express words or necessary implication, it appears that this was
the intention of the legislature…”
(b) The Supreme Court relied on its earlier decision in the
case of
RAJENDRA KUMAR vs. KALYAN reported in
(2000) 8 SCC 99, wherein it has been held as follows:
“21. Still later this Court in Gurbachan Singh v. Satpal Singh &
Others ( AIR 1990 SC 209) expressed in the similar vein as regards the
element of retrospectivity. The English Courts also laid that the rule
that an Act of Parliament is not to be given retrospective effect applies
only to statutes which affect the vested rights:
It does not apply to
statutes which alter the form of procedure or the admissibility of
evidence, or the effect which the courts give to evidence:
If the
new Act affects matters
of procedure only, then, prima facie, it
applies to all actions pending as well as future (see in this context
the decisions of the House of Lords in the case of Blyth v. Blyth
(1966)1 All ER 524: A.G. v. Vernazza: (1960) 3 All ER). In Halsburys
Laws of England (4th Edition: Vol.44: para 925 page 574) upon
reference to Wright v. Hale (1860) 6 H & N 227 and Gardner v. Lucas
82
(1878) 3 Appeal Cases 582 along with some later cases including Blyth v.
Blyth (supra) it has been stated:
“The presumption against retrospection does not apply
to legislation concerned merely with matters of procedure
or of evidence; on the contrary, provisions of that nature
are to be construed as retrospective unless there is a clear
indication that such was not the intention of Parliament.
22.
The law thus seems to be well settled that no person has, in
fact, a vested right in procedural aspect one has only a right of
prosecution or defence in the manner as prescribed by the law for the
time being and in the event of any change of procedure by an Act of
Parliament one cannot possibly have any right to proceed with the
pending excepting as altered by the new legislation and as such
we need not dilate on the issue any further.”
50.
Even though the issue relates to criminal trial and the procedure
adopted for correction of evidence, the principle laid down is that
amendments to procedure would not affect a vested right. In the case on
hand, by virtue of changing the procedure, no person who has been
appointed would be terminated and thus, vested right of employee is not
adversely affected. However, no employee can validly be heard to plea
that he would have a vested right to serve at a particular place more
importantly when it would be violating the implementation of the
Presidential Order.
Thus, the ratio of the aforesaid judgments would
justify the stand of the State that amendment which modify the procedure
can be retro-active. In this connection, it would be necessary to recall the
decision of the Full Bench of this Tribunal rendered in OA.562/2002 and
83
batch. The issue was framed by the Full bench which did not consider the
same relating to retrospectivity of GO.Ms.No.8 dt.8.1.2002 but held that
as per existing law, ratio of 80:20 between local and non-local candidates
is to be followed and Full Bench held that GO.Ms.No.2 and 8 were held
valid. The respondents cannot rely upon the Full Bench decision which will
not come to their rescue. However, judicial review of the said orders
passed by the Full Bench was before the Hon’ble High Court but Hon’ble
High Court also did not decide the issue of relating to prospectivity or
otherwise of GO.Ms.No.8 dt.8.1.2002.
51.
It would be necessary to recall another judgment of Full Bench
which deals with the issue as to selections which were made by District
Selection Committee in 1998 need not be reviewed and the percentage of
local candidates that is liable to be treated as reserved is 80% as against
70% followed then.
This Bench also never dealt with the operation of
GO.Ms.No.8 whether it is prospective or retrospective in its operation. In
view of this, the contention of the applicants that GO.Ms.No.8 dt.8.1.2002
is prospective in operation, cannot be accepted by this Tribunal as it is a
fact that GO has been issued for the purpose of correcting an erroneous
procedure stipulated in GO.Ms.No.763 retro activity is evident by
implication.
84
52.
It is also settled principle of law that legislative and rule making
authority can correct such errors. It is also a constitutionally recognized
principle that executive power is co-terminus with that of legislature and
what can be done in the form of legislation could also be done through
executive instructions.
The only embargo is that field should not have
been occupied either by a statute or by statutory instruments like the
rules. In the present case there is neither a statute nor the rules and the
Presidential Order is silent about the same. This power exercised by the
State cannot be construed as violative of the provisions of the Presidential
Order.
Earlier, the procedure was evolved by the Government in
GO.Ms.No.763 and the same has been substituted by GO.Ms.No.8 which
cannot be found fault with.
Therefore, we un-hesitatingly hold that
GO.Ms.No.8 dt.8.1.2002 and GO.Ms.No.124 dt.7.3.2002 are retrospective
in operation and the action of the State in reviewing the appointments
made right from 18.10.1975 till to date are not illegal.
53.
POINT NO.3:
As far as invocation of power contained in para-5 of the Presidential Order
is concerned, GO.Ms.No.674 dt.7.9.2007 would protect the interest of the
individuals who are now transferred like applicants
pursuant to the
85
decision to implement the Presidential Order in its full spirit. On perusal of
para-7 of the said GO which states that after specific identification of nonlocals who have been appointed in deviation shall be repatriated to their
respective local cadres by transfer.
The transfer so ordered shall be in
public interest as provided in paragraph-5(2)(c ) of the Presidential Order.
Further more, paragraph-8 of the GO goes to state that all the employees
so transferred shall be eligible for TA and protection of seniority as
transfers have been made in public interest. It is a settled proposition of
law that when action of an administrative authority does not visit the
employee with civil consequence or any way prejudices him, no notice
need be given. The paramount importance of the State is implementation
of the Presidential Order in its true letter and spirit.
Under such
circumstances, private interest will have to give room to the public
interest.
Following decisions will support the contention of the
respondent State:
(a) In the case of UNION OF INDIA vs. MUSTAFA & NAJIBAI
TRADING CO., reported in (1998) 6 SCC 79, wherein it has
been held as follows:
“Insofar as the rule of audi alteram partem is concerned, the
position is well settled that an order passed in disregard of the
said principle would not be invalidated if it can be shown that
as a result of denial of the opportunity contemplated by the
86
said rule, the person seeking to challenge the order has not
suffered any prejudice.”
(b) In the case of ALIGARH MUSLIM UNIVERSITY vs. MANSOOR
ALI KHAN (2000) 7 SCC 529, it has been held as follows:
“21.
As pointed recently in M.C. Mehta Vs. Union of India
(1999 (6) SCC 237), there can be certain situations in which an
order passed in violation of natural justice need not be set aside
under Article 226 of the Constitution of India. For example where
no prejudice is caused to the person concerned, interference
under Article 226 is not necessary.
Similarly, if the quashing of the order which is in breach of natural
justice is likely to result in revival of another order which is in
itself illegal as in Gadde Venkateswara Rao vs. Government of
Andhra Pradesh [1966 (2) SCR 172 = AIR 1966 SC 828], it is not
necessary to quash the order merely because of violation of
Principles of natural justice.
22. In
M.C.Mehta it was pointed out that at one time, it
was held in Ridge vs. Baldwin ( 1964 AC 40) that breach of principles
of natural justice was in itself treated as prejudice and that no
other 'defacto' prejudice needed to be proved. But, since
then the rigour of the rule has been relaxed not
only in
England but also in our country. In S.L. Kapoor Vs. Jagmohan (
1980 (4) SCC 379), Chinnappa Reddy,
J.
followed Ridge vs.
Baldwin and set aside the order of supercession of the New
Delhi
Metropolitan Committee rejecting the argument that
there was no prejudice though notice was not given.
The
proceedings were quashed on the ground of violation of
principles of natural justice. But even in that case certain exceptions
were laid down to which we shall presently refer.
23.
Chinnappa Reddy,J. in S.L.Kapoor's case, laid two
exceptions (at p.395) namely, " if upon admitted or
indisputable facts only one conclusion was possible", then in such
a case, the principle that breach of natural justice was in itself
prejudice, would not apply. In other words if no other
conclusion was possible on admitted or indisputable facts, it is not
necessary to quash the order which was passed in violation of
87
natural justice. Of course, this being an exception, great care
must be taken in applying this exception.
24. The principle that in addition to breach of natural
justice, prejudice must also be proved has been developed in
several cases.
In K.L. Tripathi Vs. State Bank of India (1984(1) SCC 43), Sabyasachi
Mukherji, J. ( as he then was) also laid down the principle that not
mere violation of natural justice but de facto prejudice (other than
non-issue of notice) had to be proved. It was observed:
quoting
Wade Administrative
Law, (5th Ed.PP.472-475) as follows: (
para 31)
"....it is not possible to lay down rigid rules as to when principles
of natural justice are to apply, nor as their scope and extent
....There must
have
been some real prejudice to the
complainant; there is no such thing as a merely technical
infringement of natural justice.
The requirements of natural
justice must depend on the facts and circumstances of the case,
the nature of the inquiry, the rules under which the tribunal is
acting, the subject matter to be dealt with and so forth".
Since then, this Court has consistently applied the principle of
prejudice in several cases. The above ruling and various other
rulings taking the same view have been exhaustively referred to in
State Bank of Patiala Vs.S.K. Sharma ( 1996(3) SCC 364). In that
case, the principle of 'prejudice' has been further elaborated. The
same principle has been reiterated again in Rajendra Singh Vs.
State of M.P. ( 1996(5) SCC 460).”
(c) In the case of COMPETITION COMMISSION OF INDIA vs. SAIL
reported in (2010) 10 SCC 744, it has been held as follows:
“ However, the exclusion of the principles of natural justice is
also an equally known
concept and the legislature has the
competence to enact laws which specifically exclude the application
of principles of natural justice in larger public interest and for valid
reasons.
68. Generally, we can classify compliance or otherwise, of these
principles mainly under three categories. First, where application
of principles of
natural
justice
is
excluded by specific
legislation; second,
where
the law contemplates
strict
compliance to the provisions of principles of natural justice and
default in compliance thereto can result in vitiating not only the
88
orders but even the proceedings taken against the delinquent;
and third, where the law requires compliance to these principles
of natural justice, but an irresistible conclusion is drawn by the
competent court or forum that no prejudice has been caused
to the delinquent and the non-compliance is with regard to an
action of directory nature. The cases may fall in any of these
categories and therefore, the Court has to examine the facts of
each case in light of the Act or the Rules and Regulations in force
in relation to such a case. It is not only difficult but also not
advisable to spell out any straight jacket formula which can be
applied universally to all cases without variation.
(d) The Division Bench of the Hon’ble High Court in W.P.No.23391/2009
between Government of A.P. represented by its Principal
Secretary, Education Department , Secretariat, Hyderabad and
others and B.V.N. Malleshwari and Others has held as follows:
“30. With respect to the contention of the learned counsel for the
respondent that the said impugned GO violates the principles of
natural justice, as countenanced by the learned Additional
Advocate General by stating that all the earlier GO’s which are
referred to are, in fact, covered by the policy decision of the State
under G.O.Ms.No.610 dated 30.12.1985, which in turn is based
upon the Presidential Order. The implementation of the said
policy, therefore, is not required to be preceded by any notice.
WE are also of the view and it is now well settled that principles of
natural justice cannot apply in straightjacket formula in each and
every situation. Even if a prior notice had been given in the
present case, the fact situation being the admitted appointment of
the respondent against a reserved local post, no useful purpose
would have been served as the said factual aspect, as stated
above, is not controverted even in the OA nor could have been
controverted by the respondent in the reply to such a notice, if it
had been given. The formality of notice would have been wholly
redundant and unnecessary on the facts and circumstances of the
present case. The contention of the respondent, therefore, that
the principles of natural justice are violated is also liable to be
rejected.”
Thus, the Division Bench of the Hon’ble High Court has held that the
various GOs issued are covered by policy decision of the State Government
89
under GO.Ms.NO.610 dt.30.12.1985 which is again based upon the
Presidential Order.
It is a policy decision which is not required to be
preceded by any notice while issuing the consequential repatriation
orders.
The endeavour of the State Government was to bring the
appointments totally inconformity with the provisions of the Presidential
Order.
Therefore, the action of the respondent State in exercising the
powers conferred under para-5 of the Presidential Order is not violative of
principles of natural justice.
54.
Therefore, the respondent State has rightly exercised the power
conferred under para-5 of the Presidential Order, it cannot be construed
as illegal.
55.
POINT NO.4:
The impugned GOs do not tinker with the rankings assigned by the
selecting agencies like APPSC and District Selection Committees.
It is a
well known principle that selection agencies carried out conducting of
selections and preparing a merit list. After preparation of merit list, they
have no role to play.
The respondent State has not tampered with the
merit list prepared either by PSC or DSC. As the list is available with the
State, the State has to give effect to the merit list in accordance with the
90
Presidential Order.
Under such circumstances, it cannot be said that
respondent State has tampered with the merit list
prepared by the
selecting agency and it is not necessary for the State to consult the
selecting agencies.
Therefore, this point also answered in favour of the
State.
56.
POINT NO.5:
All the counsel have also argued that promotion is a vested right and
it is sought to be taken away. The applicants have challenged the validity
of repatriation orders on the ground that their promotional prospects
would be adversely affected. This ground cannot be accepted by this
Tribunal as it is a settled proposition of law in catena of decisions of the
Hon’ble Supreme Court that mere chances of promotion are not
conditions of service and the fact that there was reduction in chances of
promotion do not tantamount to a change in the conditions of service.
The principle has been reviewed by the Hon’ble Supreme Court extensively
in the case of CHANDRA GUPTA, I.F.S. v. SECY., GOVT. OF INDIA,
MINISTRY OF ENVIRONMENT & FORESTS reported in (1995) 1 SCC 23,
wherein it has been held as follows:
“It is well settled in law that no employee has a right or
vested right to chances of promotion as held by this Court in
Ramchandra Shankar Deodhar vs. State of Maharashtra.
91
“It is now well settled by the decision of this Court in State
of Mysore v. G.N. Purohit that though a right to be considered
for promotion is a condition of service, mere chances of
promotion are not. A rule which merely affects chances of
promotion cannot be regarded as varying a condition of
service. In Purohit case the district wise seniority of Sanitary
Inspectors was changed to State wise seniority, and as a result
of this change the respondents went down in seniority and
became very junior. This, it was urged, affected their chances
of promotion which were protected under the proviso to
Section 115, sub-section (7). This contention was negative and
Wanchoo, J., speaking on behalf of this Court observed:
“It is said on behalf of the respondents that as their chances
of promotion have been affected their conditions of service
have been changed to their disadvantage. We see no force in
this argument because chances of promotion are not
conditions of service.”
26. The same principle is reiterated in the following cases:
27. In MOHD. SHUJAT ALI vs. UNION OF INDIA , this Court held
thus:
“It is true that a rule which confers a right of actual
promotion or a right to be considered for promotion is a rule
prescribing a condition of service. This proposition can no
longer be disputed in view of several pronouncements of this
Court on the point and particularly the decision in
MOHAMMAD BHAKAR vs. Y.KRISHNA REDDY where this Court,
speaking through Mitter, J., said:
92
‘Any rule which affects the promotion of a person relates to
his condition of service.’
But when we speak of a right to be considered for
promotion, we must not confuse it with mere chance of
promotion – the latter would certainly not be a condition of
service.”
Again, in RESERVE BANK OF INDIA VS. C.T. DIGHE this Court
held thus:
“It is well settled that a rule which affects the promotion of
a person relates to his condition of service but this is not so if
what is affected is a chance of promotion only. This Court in
Mohd. Shujat Ali vs. Union of India held:
‘But when we speak of a right to be considered for
promotion, we must not confuse it with mere chance of
promotion – the latter would certainly not be a condition of
service.. that though a right to be considered for promotion is a
condition of service, mere chances of promotion are not.’
In SHUJAT ALI case, the respondents went down in seniority
and it was urged that this affected their chances of promotion.”
Again, in State of Maharashtra vs. Chandrakant Anant
Kulkarni, this Court held thus:
“Mere chances of promotion are not conditions of service
and the fact that there was reduction in the chances of
promotion did not tantamount to a change in the conditions of
service.
A right to be considered for promotion is a term of
service, but mere chances of promotion are not.”
93
Again, in Reserve Bank of India v. C.N. Sahasranaman, this
Court held thus:
“This Court had also observed that the right of promotion
should not be confused with mere chance of promotion.
Though the right to be considered for promotion was a
condition of service, mere chances of promotion were not. See
Mohd. Shujat Ali v. Union of India. See also in this connection
the observations in R.S. Deodhar vs. State of Maharashtra and
Reserve Bank of India vs. C.T. Dighe.”
Again, in Paluru Ramkrishnaiah vs. Union of India, this
Court held thus:
“In the case of Ramchandra Shankar Deodhar the
petitioners and other allocated Tehsildars from ex-Hyderabad
State had under the notification of the Raj Pramukh dated
15.9.1955 all the vacancies in the posts of Deputy Collector in
the ex-Hyderabad State available to them for promotion but
under subsequent rules of 30.7.1959, 50 per cent of the
vacancies were to be filled by direct recruitment and only the
remaining 50 per cent were available for promotion and that
too on divisional basis. The effect of this change obviously was
that now only 50 per cent vacancies in the post of Deputy
Collector being available in place of all the vacancies it was to
take almost double the time for many other allocated
Tehsildars to get promoted as Deputy Collectors.
In other
words it resulted in delayed chance of promotion: It was, inter
alia, urged on behalf of the petitioners that the situation
brought about by the rules of 30.7.1959 constituted variation
to their prejudice in the conditions of service applicable to
them immediately prior to the reorganisation of the State and
94
the rules were consequently invalid.
While repelling this
submission, the Constitution Bench held:
“All that happened as a result of making promotions to the
posts of Deputy Collectors division wise and limiting such
promotions to 50 percent of the total number of vacancies in
the posts of Deputy Collector was to reduce the chances of
promotion available to the petitioners. It is now well settled by
the decision of this Court in State of Mysore v. G.B. Purohit that
though a right to be considered for promotion is a condition of
service, mere chances of promotion are not. A rule which
merely affect chances of promotion cannot be regarded as
varying a condition of service. In Purohit case the district wise
seniority of Sanitary Inspectors was changed to State wise
seniority, and as a result of this change the respondents went
down in seniority and became very junior. This, it was urged,
affected their chances of promotion which were protected
under the proviso to Section 115, sub-section (7).
This
contention was negative and Wanchoo, J., speaking on behalf
of this Court observed.
“It is said on behalf of the respondents that as their chances
of promotion have been affected their conditions of service
have been changed to their disadvantage. We see no force in
this argument because chances of promotion are not
conditions of service.
It is therefore, clear that neither the rules of 30.7.1959, nor
the procedure for making promotions to the posts of Deputy
Collector division wise varies the conditions of service of the
petitioners to their disadvantage.”
95
Again in K.Jagadeesan vs. Union of India this Court held
thus:
“A right to be considered for promotion is a term of service,
but mere chances of promotion are not.”
Thus, this point is also held against the applicants.
57.
Having regard to the facts and circumstances of the cases
and for
the foregoing reasons, it is held as follows:
i)
G.O.Ms.No.610 dt.13.12.1985 and G.O.Ms.No.674 dt.7.9.2007
and the consequential repatriation orders passed by the
respondent State are not violative of any of the provisions of
the Presidential Order.
ii)
The amendments issued by way of substitution as per
GO.Ms.No.8 dt.8.1.2002 and GO.Ms.No.124 dt.7.3.2002 are
undoubtedly retrospective in operation.
iii)
Invoking the provisions of paragraph-5 of the Presidential
Order need not be preceded by any notice or observance of
principles of natural justice.
96
iv)
The action of the respondents in issuing consequential
repatriation
orders
in
furtherance
of
GO.Ms.No.610
dt.30.12.85 does not amount to tinkering with the ranking
assigned by the selecting bodies like Andhra Pradesh Public
Service Commission or any other selection committees.
v) Finally, the right of promotion is not at all a vested right.
58.
In the result, the applications are dismissed.
shall stand vacated.
The interim orders
VMAs allowed, M.As. and CAs. stand closed.
No
orders as to cost.
Sd/-
P.SUBBA RAO
DY. REGISTRAR
//TRUE COPY//
ASSISTANT REGISTRAR