Full Judgment Text
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CASE NO.:
Appeal (civil) 1651-1652 of 1997
PETITIONER:
GOVT. OF ANDHRA PRADESH & ORS.
Vs.
RESPONDENT:
MOHD. GHOUSE MOHINUDDIN & ORS.
DATE OF JUDGMENT: 27/08/2001
BENCH:
G.B. Pattanaik & Ruma Pal
JUDGMENT:
With Civil Appeal No. 1653/1997.
JUDGMENT
PATTANAIK, J.
These appeals are directed against the order of the
Andhra Pradesh Administrative Tribunal. By the impugned
order, the Tribunal directs the re-determination of inter se
seniority zone-wise basis in different cadres for promotion to
the higher posts. The tribunal deals with three different
departments of the Government of Andhra Pradesh,
Commercial Tax Department, Revenue Department and
Police Department.
After insertion of Article 371-D of the Constitution, by
the Constitution (32nd Amendment) Act, 1973, the President
of India, issued Andhra Pradesh Public Employment
(Organisation of Local Cadres and Regulation of Direct
Recruitment) Order, 1975 [hereinafter referred to as the
Presidential Order]. The aforesaid Presidential Order was
intended for providing equitable opportunities and facilities
for the people belonging to different parts of the State of
Andhra Pradesh, in the matter of public employment and in
the matter of education. The object of the aforesaid Article
was to promote accelerated development of the backward
areas of the State of Andhra Pradesh, so as to secure the
balanced development of the State as a whole and to provide
equitable opportunities to different areas of the State in the
matter of education, employment and career prospects in
public service. The expression Public employment in
Article 371-D has been interpreted by this Court in the case
of Government of Andhra Pradesh and Anr. vs. A.
Suryanarayanarao and Ors., 1991 Supp.(2) S.C.C. 367, to
mean both direct recruitment as well as promotion.
Paragraph 3 of the Presidential Order casts an obligation on
the State Government to organise classes of posts in the Civil
Services and the classes of Civil posts under the State, into
different local cadres for different parts of the State to the
extent and in the manner provided in the Presidential Order,
within a period of 18 months from the commencement of the
Presidential Order. Proviso to the aforesaid paragraph
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enables the President to require the State Government, at any
time, even after the expiry of the period of 18 months,
whenever the President considers it expedient so to do, to
organise 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. The aforesaid enabling
provision for organisation of different local cadres is
obviously intended to achieve the main objective of Article
371-D, namely to provide equitable opportunities to different
areas of the State, in the matter of education, employment
and career prospects in public services as well as to promote
accelerated development of the backward areas of the State
of Andhra Pradesh, so as to secure the balanced development
of the State as a whole. Sub-para (3) of Paragraph 3 of the
Presidential Order reads thus:
Para 3(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 organised into a separate cadre.
Sub-para (7) of Paragraph 3 reads thus:
Para 3(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.
Paragraph 6 of the Presidential Order deals with the local
areas, which reads thus:
Para 6. Local Areas: -(1) Each district shall
be regarded as a local area-
(i)for direct recruitment to posts in any local cadre
under the State Government comprising all or any
of the posts in any department in that district
belonging to the category of a Junior Assistant or
to any other category equivalent to or lower than
that of a Junior Assistant;
(ii) for direct recruitment to posts in any cadre
under any local authority within that district,
carrying a scale of pay the minimum of which
does not exceed the minimum of the scale of pay
of Junior Assistant or a fixed pay not exceeding
that amount.
(2)Each zone shall be regarded as a local area-
(i)for direct recruitment to posts in any local cadre
under the State Government comprising all or any
of the posts in any department in that zone
belonging to any non-gazetted category other than
those referred to in sub-paragraph (1);
(ii)for direct recruitment to posts in any local
cadre comprising all or any of the posts in any
department in that zone belonging to the
categories of Tahsildars and Junior Engineers;
Assistant Agricultural Officers, Inspectors of
Police and Motor Vehicles Inspectors. [G.O.Ms.
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No.498, G.A.D.(SPF), Dt. 16.7.1977]
(iii)for direct recruitment to posts in any cadre
under any local authority within that zone,
carrying a scale of pay, the minimum of which
exceeds the minimum of the scale of pay of a
Junior Assistant but does not exceed Rs.480 per
mensem; or a fixed pay which exceeds the
minimum of the scale of pay of a Junior Assistant
but does not exceed Rs.480 per mensem;
Provided that where a single cadre has been
organised for two or more zones under sub-
paragraph (5) of paragraph 3 of posts belonging to
any of the categories referred to in clause (i) or
clause (ii) each of such zones shall be regarded as
a separate local area in respect of such cadre.
(3).Notwithstanding anything contained in sub-
paragraph (1) and (2):--
(i)the City of Hyderabad shall be regarded as a
local area for direct recruitment to posts in any
local cadre under the State Government
comprising all or any of the posts in the said City
in the departments and belonging to the categories
notified under sub-paragraph (6) of paragraph 3,
and said City shall be excluded from the local area
relatable to any other local cadre comprising posts
in the departments and belonging to the categories
so notified; and
(4).Notwithstanding anything contained in sub-
paragraphs (1), (2) and (3):-
(i)the districts of Medak, Rangareddy and
Hyderabad shall be regarded as a local area for
direct recruitment to posts in any cadre under the
Hyderabad Urban Development Authority
Comprising posts, carrying a scale of pay, the
minimum of which does not exceed the minimum
of the scale of pay of a Junior Assistant or a fixed
pay not exceeding that amount;
(ii)Zone VI shall be regarded as a local area for
direct recruitment to posts in any cadre under the
Hyderabad Urban Development Authority
comprising posts, carrying a scale of pay, the
minimum of which exceeds the scale of pay of
Junior Assistant but does not exceed Rs.480 per
mensem or a fixed pay which excess the
minimum of the scale of the pay of Junior
Assistant but does not exceed Rs.480 per mensem.
[Sub-para (4) is added by G.O.Ms. No. 498,
G.A.D., (SPF-A) Dept., Dt. 16.7.1977].
(iii)the city of Hyderabad shall be regarded as a
local area for direct recruitment to posts in any
cadre under a local authority within the said city
comprising posts carrying a scale of pay, the
minimum of which does not exceed Rs.480 per
mensem or a fixed pay not exceeding that amount,
and the said City shall be excluded from the local
area relatable to any cadre under any local
authority not within the said City.
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In exercise of powers conferred upon the State Government
under paragraph 3(1) of the Presidential Order, the State of
Andhra Pradesh issued G.O.Ms. No. 581, organising the
Commercial Tax Department by constituting different local
cadres. The aforesaid Government Order, providing scheme
for organisation of local cadre in Commercial Tax
Department, was issued on 24th of May, 1976, and Appendix
to the aforesaid scheme, indicates that while posts of Deputy
Commissioners, Assistant Commissioners and Commercial
Tax Officers, continue to be state level posts and as such,
there was no necessity to organise any local cadre, but the
posts of Deputy Commercial Tax Officers were organised
into six zonal cadres and the cadre strength of different zones
was also indicated in the aforesaid schedule. So far as the
Non-Gazetted posts are concerned, they were organised into
nine different smaller units by the State Government, for the
purpose of recruitment and promotion. Necessarily,
therefore, by way of an annexure, the revised jurisdiction of
the Deputy Commissioners Division, after reorganisation,
was indicated, indicating nine different smaller units, and
these smaller units, became the area for the purpose of
recruitment and promotion and seniority as well.
Corresponding to G.O.Ms. No. 581 issued for the
Commercial Tax Department, G.O.Ms.No. 497 dated 30th of
April, 1976 deals with Revenue Department and under the
aforesaid G.O.Ms, while paragraph 5 deals with gazetted
posts of Tahsildars, which are required to be organised into
zonal cadres and in fact six zonal cadres had been organised,
but so far as non-gazetted posts are concerned, the same was
organised into district-wise basis as the unit and nine such
units were organised, in respect of the posts of Deputy
Tahsildars, Head Clerks, Upper Division Clerks, Lower
Division Clerks, Typists, Shroffs, Jeep Drivers, Record
Assistants and Last Grade Servants. In an identical manner,
reorganisation of posts in the local cadre in Police
Department was issued under G.O.Ms. No. 795 dated 30th
June, 1976. It is undisputed that in this batch of appeals, we
are concerned with the question of seniority as well as
promotion in respect of such non-gazetted posts in the
Commercial Tax Department, in the Revenue Department
and Police Department. These smaller units, organised by
the State Government in discharge of its obligation under
paragraph 3 of the Presidential Order, remained operative and
the appointment, promotion and seniority continued to be
dealt with the smaller units as the cadre, until the impugned
judgment of the tribunal. It may be necessary at this stage to
mention that in the Commercial Tax Department, subsequent
to the issuance of G.O.Ms. No. 581, the Government of
Andhra Pradesh had issued two further G.O.Ms. being
G.O.Ms Nos. 1648 and 1900. The validity of the aforesaid
two G.O.Ms. was the subject matter of consideration in the
case of S. Prakasha Rao and anr. vs. Commissioner of
Commercial Taxes and Ors., 1990(2) S.C.C. 259. A Three
Judge Bench of this Court, analysed different paragraphs of
the Presidential Order as well as the Order issued by the
State Government, organising different classes of posts into
the local cadres, in accordance with paragraph 3 of the
Presidential Order and ultimately, came to the conclusion that
after expiry of 18 months from the date of the issuance of the
Presidential Order, there is no power with the State
Government for creation of any further local cadre and,
therefore, the seniority has to be prepared pursuant to the
initial organisation, and the question of seniority and
promotion has to be determined, within the local cadre,
created by the State Government in issuing the order of
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organisation, as required under paragraph 3 of the
Presidential Order. In S.Prakasha Raos case, this
Court came to the conclusion that the post of Junior Assistant
is the District Cadre post and the posts of Senior Assistants
and Assistant Commercial Tax Officers are the zonal posts.
The Court also further came to the conclusion that under
paragraph 3(1) of the Presidential Order, the State
Government, through issuance of G.O.Ms. No. 581 had
organised the Commercial Taxes Department by constituting
different local cadres and having done so, the State ceases to
have any power to bifurcate or reorganise a zone within a
zone, cadre or cadres therein and, therefore, any such
subsequent reorganisation could be only for administrative
necessity and not for the purpose of recruitment, seniority
and promotion etc. The Court held that for the purpose of
recruitment, seniority, promotion, discharge etc., the local
cadre once organised under paragraph 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 Presidential Order.
With these conclusions, the action of the State Government,
in issuing subsequent G.O.Ms. was held to be invalid.
A batch of cases relating to the Commercial Tax
department, Revenue Department and Police Department
were heard together by the Administrative Tribunal and were
disposed of by the common judgment which is the subject
matter of challenge in these appeals. The tribunal in the
impugned order came to the conclusion that validity of
G.O.Ms. No. 581, dealing with Sales tax department did not
fall for consideration in the earlier round of litigation in
Prakash Raos case. It further held that Division is a unit for
the purpose of administration and zone is a unit for the
purpose of organisation of cadres for direct recruitment,
appointment, seniority, promotion and transfer under the
Presidential Order. It also held that organisation of various
local cadres under the notification issued by the State
Government, does not satisfy the requirement of the
Presidential Order as provided in para 3 and such separate
cadres in smaller units affect the conditions of service
mentioned in para 5(1). The tribunal held that Para 3(7) of
the Presidential Order, only enables the State Government to
have separate cadre for administrative convenience and that
the principle on which Supreme Court struck down the
subsequent G.O.Ms. in Prakash Raos case, would equally
apply to G.O.Ms. No. 581. Interpreting Para 3(7), the
tribunal held that the State Government cannot organise
cadre in any other part of the state for the purpose of public
employment. On an analysis of the G.O.Ms. No. 497, issued
in respect of the posts in the Revenue Department, the
tribunal held that the units of appointment for the above
categories of posts in the Revenue Department, conform to
the provision in the Presidential Order and hence no
particular action is called for in respect of the posts in the
Revenue Department. The tribunal found that the Sales Tax
Department, the Revenue Department and the Police
Department have acted without reference to the Presidential
Order. Interpreting the expression such part of the State, it
held that the State Government cannot organise cadres in
any other part of the State for the purpose of public
employment, mentioned in para 5(1). The tribunal ultimately
held that recruitment to different posts, has to be made as per
the units created under the Presidential Order and not in
accordance with the reorganisation made by the State
Government in exercise of powers conferred under para 3 of
the Presidential Order. With these conclusions, the specific
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G.O.Ms in the three departments having been annulled and
further directions having been issued, these appeals have
been preferred.
Mr. L. Nageswara Rao, appearing for the appellant in
Civil Appeal No. 1653/1997 and Mr. G. Prabhakar,
appearing for the appellant-State of Andhra Pradesh in the
other appeals, contended that the reorganised units having
been created by the State Government, in exercise of power
under paragraph 3(1) of the Presidential Order, since 1976
and having remained operative for more than 15 years, the
tribunal was not justified in entertaining applications in the
years 1992 and 1993 and then interfering with the said
organisational scheme and directing reconsideration of the
seniority and consequential promotional avenues, which
would unsettle the settled position and would create chaos in
administration. It was further contended that in Prakash
Raos case, this Court has examined a relevant G.O.Ms,
issued by the State Government in exercise of powers under
Paragraph 3(1) and has held that the units, created by the
State Government under the scheme of organisation, would
be the unit, for the purpose of recruitment, promotion,
discharge etc., the tribunal had no jurisdiction to interfere
with that conclusion and on an erroneous analysis of the
provisions, the tribunal has interfered with the same and as
such, the impugned order of the tribunal cannot be sustained.
The counsel also urged that paragraph 3(1) of the Presidential
Order, enables the State Government to organise classes of
posts in the civil services, into different local cadres for
different parts of the State and paragraph 3(7) of the
Presidential Order makes it explicitly clear that nothing in the
Presidential Order would prevent the State Government from
organising separate cadre in respect of any category of posts
in any department for any part of the State. A combined
reading of paragraphs 3(1) and 3(7), therefore makes it clear
that within 18 months from the commencement of the
Presidential Order, the State Government could organise
classes of posts in the civil services of the State into different
local cadres for the purpose of achieving the main objective
of the Presidential Order, and such organised local cadre,
would be the area of operation for considering the question of
recruitment, promotion etc. This being the position, the
tribunal committed error by holding that paragraph 3(3) of
the Presidential Order would have an over-riding effect.
Mr. P.S. Narasimha, appearing for the respondents in
the appeal relating to Revenue Department, on the other hand
contended that the Presidential Order, more particularly,
paragraph 3(3) of the same, indicates the zone and zone
should be the area of consideration and the State Government
cannot be held to have any jurisdiction to constitute any
smaller units for the purpose of recruitment, promotion etc.,
which would contravene the Presidential Order and,
therefore, the tribunal was justified in issuing the impugned
direction. So far as the delay in approaching the tribunal is
concerned, Mr. Narasimha contends, that if the
reorganisation of the cadre by the State Government is
contrary to the Presidential Order and consequently, invalid
and inoperative, the mere delay in approaching the tribunal,
would not take away the rights of the employees and,
therefore, the tribunal was justified in interfering with the
G.O.Ms. issued by the State Government under paragraph
3(1) of the Presidential Order.
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We have considered the rival submissions and we find
considerable force in the submission of Mr. Nageswara Rao
and Mr. Prabhakar, appearing for the appellants, both on the
question of delay as well as on the interpretation of the
Presidential Order as well as the order issued by the State
Government, in exercise of powers under paragraph 3(1) of
the Presidential Order. From the impugned order of the
tribunal as well as the materials on record, it is crystal clear
that the notifications issued by the State Government in the
year 1976, organising smaller units of cadre in respect of
non-gazetted posts, remained operative till the tribunal was
approached in 1992-93. The recruitment, promotion and
other service conditions of these employees, in respect of
posts enumerated in the order of the State Government was
made within the organised cadre, issued by the State
Government, which was essentially meant for equitable
opportunities and facilities in the matter of public
employment. It is a cardinal principle in Service
Jurisprudence, that a particular method or procedure adopted
for a long time, need not be ordinarily interfered with, unless
such method is repugnant to any constitutional provision or is
contrary to any statutory rule. That apart, under the
Administrative Tribunal Act, a period of limitation is
provided for, in Section 21. In this view of the matter, when
the units formed the cadre, pursuant to notifications issued by
the State Government, in the year 1976, in respect of non-
gazetted posts and on that basis, appointment to and
promotion within the cadre was being considered, in respect
of non-gazetted posts, applications filed before the tribunal in
1992-93, after expiry of more than 15 years, could not have
been entertained and the settled position could not have been
unsettled, as has been done by the tribunal in its final order.
On this ground alone, the impugned order cannot be
sustained.
Let us now examine the provisions of the Presidential
Order as well as the notifications issued by the State
Government in exercise of powers conferred upon it under
the Presidential Order, to find out whether by such
notifications, there has been any infraction of the
constitutional provision or the provision contained in the
Presidential Order itself. When one speaks of public
employment, immediately Article 16 comes into focus.
Clauses (1) and (2) of Article 16 guarantee equality of
opportunity to all citizens, in the matter of appointment to
any office or any employment under the State. Clauses (3)
to (5) lay down exception to the above rule and Clause (4)
permits reservation for backward classes of citizens, who are
not in the opinion of the State, adequately represented in the
services of the State. In view of the mandate of Article 16,
but for the Presidential Order issued under Article 371-D, it
would not have been possible to consider the question of
employment within the narrower units of cadre, created by
the State Government, in exercise of powers conferred upon
it under paragraph 3(1) of the Presidential Order. Article
371D, however was inserted in the Constitution by the
Constitution (32nd Amendment) Act, 1973, authorising the
President to pass special order in respect of the State of
Andhra Pradesh. The history behind insertion of the
aforesaid Article has been elaborately dealt with in the
impugned order of the tribunal. Suffice it to say that, as
there was lot of disparity in the matter of opportunities,
available in public employment between the inhabitants of
Telengana region and the Andhra region, there was a
political turmoil and ultimately, the political will culminated
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in a six point formula and it is in implementation of the
aforesaid formula, Article 371-D was inserted, conferring
power on the President of India to pass appropriate order for
equitable opportunities and facilities for the people belonging
to different parts of the State, in the matter of public
employment. Clause (2) of Article 371D enables the
President of India, to provide in the order, requiring the State
Government to organise any class or classes of posts in a
civil service of the State, into different local cadres for
different parts of the State and allot, in accordance with such
principles and procedure, as may be specified in the order,
the persons holding such posts to the local cadre, so
organised. The State Government, which is supposed to be
aware of the representation of the people from different areas
of the State in any class or classes of civil posts, has thus
been conferred with power to organise smaller units, as cadre
for the purpose of recruitment, promotion and other
conditions of service in public employment, so that people
from different parts can share responsibility, which in turn
would ensure all round development of the State. The
Presidential Order, that has been issued in exercise of powers
under Clauses (1) and (2) of Article 371-D, unequivocally
authorises the State Government in paragraph 3 of the Order
for organisation of local cadres for different parts of the
State. Sub-para (7) of Paragraph 3, itself stipulates that in
the matter of organising a separate cadre in respect of any
category of posts, in any department for any part of the State,
nothing stated in the Presidential Order can be deemed to
prevent the State Government from such act.
A combined reading of sub-para (1) of Paragraph 3 and
sub-para (7) of Paragraph 3, unequivocally indicates that any
order issued by the State Government in the matter of
organising a separate cadre, in respect of any category of
posts, will have an over-riding effect and no part of the
Presidential Order, including sub-para(3) of Paragraph 3, on
which Mr. Narasimha, strongly relied upon be a fetter on the
said power of the State Government. Such power has been
designedly conferred upon the State Government to achieve
the main objective for which Article 371-D was engrafted,
viz. to provide equitable opportunities to different areas of
the State, in the matter of employment and career prospects
in public services, and for achieving the aforesaid objective,
undoubtedly, the State Government would be in possession
of all datas and materials, enabling it to organise different
local cadres. We have no hesitation to come to the
conclusion that paragraph 3(1) read with para 3(7) is not
subject to Paragraph 3(3), as was held by the tribunal and as
was contended by Mr. Narasimha. On the other hand,
paragraph 3(7) of the Presidential Order, would have an over-
riding effect over paragraph 3(3) and, therefore, any order
issued by the State Government under Paragraph 3(1),
constituting different local cadres for different parts of the
State would be the area of operation for the purpose of
recruitment, promotion and other service conditions, so far as
the non-gazetted posts are concerned. In the aforesaid
premises, we are of the considered opinion that the tribunal
committed serious error in interpreting different provisions of
the Presidential Order and the notifications of the State
Government, issued in exercise of powers conferred upon it
under paragraph 3(1) of the Presidential Order, and
accordingly, the said order of the tribunal is set aside. The
conclusions of the tribunal, on interpreting the provisions of
the Presidential Order, on the face of it, are erroneous and
cannot be sustained. We are unable to sustain the conclusion
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that the very principle on which Supreme Court struck down
the subsequent notifications, purported to have been issued in
exercise of powers under paragraph 3(7) of the Order, would
apply to the initial notification issued for organising various
local cadres. We also fail to understand, how by organising
local cadres under notifications issued by the State
Government, any requirement of the Presidential Order has
been contravened. The further conclusion of the tribunal
that paragraph 3(7) only enables the State Government to
have separate cadres for administrative convenience, is
based upon a misreading of the said provision and would be
repugnant to the purpose for which the Presidential Order
was issued in exercise of powers under Article 371-D, and
the State Government was conferred power for organising
smaller cadres in different parts of the State to achieve
uniform development and to offer equal opportunities in the
matter of employment. We, therefore, unhesitatingly, set
aside the conclusions arrived at, by the tribunal in the
impugned judgment.
These appeals are allowed. The applications filed
before the tribunal, stand dismissed.
...................J.
(G.B. PATTANAIK)
..................J.
(RUMA PAL)
August 27, 2001.
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