Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15
PETITIONER:
GOVERNMENT OF ANDHRA PRADESH AND ANR.
Vs.
RESPONDENT:
A. SURYANARAYANARAO AND ORS. ETC.
DATE OF JUDGMENT12/09/1991
BENCH:
REDDY, K. JAYACHANDRA (J)
BENCH:
REDDY, K. JAYACHANDRA (J)
PANDIAN, S.R. (J)
CITATION:
1991 AIR 2113 1991 SCR Supl. (1) 27
1991 SCC Supl. (2) 367 JT 1991 (4) 206
1991 SCALE (2)548
ACT:
Constitution of India, 1950: Article 371D--Object and
scope of---Issuance of Presidential Order 1975--Effect on
A.P. Panchayati Raj Engineering Service Rules, 1963--Rule
2A--Assistant Engineers (Deputy Executive Engineers)--Wheth-
er applicable for direct recruitment only or for promotion
also.
Civil Services: .A.P. Panchayati Raj Engineering Service
Rules, 1963: Rule 2A--Promotion-Junior Engineer to Assistant
Engineer--Whether to be made on the basis of zonal seniority
or statewide seniority.
HEADNOTE:
Article 371D of the Constitution of India, which is
peculiar to the State of Andhra Pradesh only, empowers the
President to provide by order for equitable opportunities
and facilities for the people belonging to different parts
of the State in the matters of public employment and educa-
tion. As provided therein the President of India made the
Andhra Pradesh Public Employment (Organisation of Local
Cadres and Regulation of Direct Recruitment) Orders, 1975,
by virtue of which the State was divided into six zones, and
local cadres of posts in respect of the local areas were
created. In respect of Andhra Pradesh Panchayati Raj Engi-
neering Service the two such zonal posts were Junior Engi-
neer and Assistant Engineer. Before the Administrative
Tribunal, some promotions made from Junior Engineer to
Assistant Engineer were questioned, and the Tribunal held
that promotions should be made on the basis of the Statewide
list and directed the State Government to redetermine the
position of the petitioners before it, in the seniority
list.
Aggrieved by the Tribunal’s order, the State Government
and the affected officials have approached this Court by way
of the present appeals and special leave petitions.
On behalf of the State Government, it was contended that
both the posts of Junior Engineer and Assistant Engineer
were zonal posts under the Presidential Order and the zonal
seniority list had to be followed in the
28
matter of promotions from Junior Engineer to Assistant
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15
Engineer and not the Statewide seniority list of Junior
Engineers.
On behalf of the Respondents it was contended that
Article 371D (2) of the Constitution refers only to direct
recruitment and the Presidential Order made under the said
Article cannot make a departure and cannot be made applica-
ble for promotions also. It was further contended that it is
the Statewide list that should be the basis for promotion.
Disposing of these matters, this Court,
HELD: 1. Notwithstanding anything contained in the A.P.
Panchayati Raj Engineering Service Rules, 1963 the promo-
tions have to be based on zonal list; otherwise the very
object sought to be achieved as per Article 371D of the
Constitution of India and the Presidential Order issued
thereunder would be defeated. The word ’employment’ should
be interpreted in a broad and general manner. The expression
’in the matter of public employment’ in clause (1) of Arti-
cle 371D is of wider import. The public employment can be by
way of direct recruitment or by promotion. The Presidential
Order would apply both for direct recruitment and for promo-
tion in respect of categories specified in the Third Sched-
ule. Article 371D (2) does not make any departure from this
principle. The words ’in particular, therein only lay empha-
sis on the aspect of creating local cadres for different
parts of the State for the purpose/of direct recruitment and
treat such parts as local areas. This does not in any manner
restrict the scope of Article 371D wherein it is clearly
declared that in the matter of public employment, the Presi-
dent is empowered to make an order in the manner stated
therein and the public employment cannot but be interpreted
to include promotion also. It, therefore, emerges that
Article 371D is in general terms and applies to the public
employment as whole and Article 371D(2) in particular ap-
plies to direct recruitment. It is only complementary to
clause (1) and particularises the matters which an order
made under clause (1) provides for. Any other interpretation
would defeat the object underlying these two provisions. [42
D-H, 43 A]
The General Manager, Southern Railway v. Rangachari,
[1962] 2 SCR 586, relied on.
2.1. Article 371D is of exceptional nature and the
objective is to provide equal opportunities in the backward
areas in respect of the specified posts mentioned in the
Third Schedule which are included in the local cadres which
thus became zonal posts. As mentioned in para 5 of the
29
Presidential Order and Rule 2-A of the A.P. Panchayati Raj
Engineering Service Rules, such zones should be treated as
separate units for the purpose of promotions also. There-
fore, there is valid nexus to the object that is sought to
be achieved and even if there is some anamoly it cannot on
that basis be said that such promotions for zonal posts on
the basis of the zonal seniority list amounts to discrimina-
tion. [44 D-E]
2.2. Rule 2-A makes it abundantly clear that for the
purpose of recruitment, appointment, promotion, transfer
etc. each zone shall be a separate unit. Para 5 of the
Presidential Order is also to the same effect. When once
each zone is treated as separate unit for the purpose of
promotion also in respect of zonal posts then by virtue of
Article 371D and the Presidential Order, the promotion from
the post of junior Engineer to the post of Assistant Engi-
neer which are both zonal posts, should be on the basis of
the zonal seniority list inasmuch as the post of Junior
Engineer and the next promotion post namely Assistant/Engi-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15
neer are included in the local cadres and the zonal list in
the Third Schedule. With regard to the higher post which
included in the local cadre and which are Statewide posts,
it becomes obvious that the Statewide seniority list of the
Assistant Engineer of all zones should be prepared and that
should be the basis of promotion to the post of Executive
Engineer which is not a zonal post. Therefore, the direc-
tions given by the Tribunal to ensure that no Junior Engi-
neer is promoted earlier than their seniors in the Statewide
seniority list to the post of Executive Engineer, should be
quashed. [43 F-H, 44 A-B]
S. Prakasha Rao and Anr. v. Commissioner of Commercial
Taxes and Ors., [1990] 2 SCC 259, relied on.
High Court of Andhra Pradesh and Ors. v. V.V.S. Krishna-
murthy and Ors., [1979] 1 SCR 26, referred to.
3.1. All promotions of Junior Engineers (redesignated as
Assistant Executive Engineers) to the next higher post of
Assistant Engineers (redesignated as Deputy Executive Engi-
neers) have to be made on the basis of the zonal seniority
list and not on the basis of the Statewide seniority list of
Junior Engineers. [44 F]
3.2. Having regard to the historical background and the
object underlying Article 371D and the Presidential Order
and in particular para 13 of the Presidential Order, the
promotions, if any made should be
30
treated only as provisional. If Rule 2-A is viewed from this
angle particularly in the light of paras 5 and 13 of the
Presidential Order it becomes clear that the said Rule has
to be given retrospective effect so that the promotions to
the junior posts can be brought in conformity with Articles
371D and the Presidential Order.The promotions made after
the Presidential Order dated 18.11.1975 should be treated as
provisional and the Government is permitted to review these
promotions on the basis of zonal seniority lists and re-
adjust the same all the future promotions. from the post of
Junior Engineer to the post of Assistant Engineer should
necessarily be made on the basis of the zonal seniority
lists. For the purpose of promotion to the post of Executive
Engineer, which is not a zonal post, a Statewide seniority
list of the Assistant Engineers of all zones should be
prepared and such statewide seniority list should form the
basis of promotion to the post of Executive Engineer. The
State Government is accordingly directed to prepare such
lists i.e. zonal seniority lists of various zones for the
purpose of promotions from Junior Engineers to Assistant
Engineers within the zones and also the statewide seniority
list of the Assistant Engineers of all zones for the purpose
of promotions to the post of Executive Engineer. Such of the
directions given by the Tribunal in the matters, which are
contrary to and different from the conclusions now reached,
shall remain quashed. [44 D-E; 44 D-H; 45-A-B]
3.3. The inter-se seniority and the consequent promo-
tions of Respondent Nos. 1 to 5 in Civil Appeal No. 3935/88
as well as the petitioners in Special Leave Petition (Civil)
No. 2150/87 shall be determined subject to the directions,
now given. [45 B-C]
Y..N. Rangiah and Ors. etc. v.J. Sreenivasa Rao and Ors.
etc., [1983]3 SCC 284; N.T. Devin Katti and Ors. v. Karnata-
ka Public Sen,ice Commission and Ors., [1990] 3 SCC 15,
referred to.
JUDGMENT:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No.3985 of 1988.
From the Judgment and Order dated 31.12.1987 of the
Andhra Pradesh Administrative Tribunal, Hyderabad in R.P.No.
967 of 1987.
WITH
S.L.P. (C) No. 9290 of 1988 with S.L.P (C) No. 2150/87 CMP
No. 25521/88 and C.A.1342/86
K.Madhava Reddy, C. Sitaramiah, P.P.Rao, G. Prabhakar,
K.R.
31
Nagaraja, P.K. Rao, Ms. C.K. Sucharita, B. Kanta Rao, K. Ram
Kumar, B. Krishna Prasad and T.V.S.N. chari (N.P.) for the
appearing parties.
The Judgment of the Court was delivered by
K. JAYACHANDRA REDDY, J. The questions that arise for
consideration in all these connected cases are confined only
to some of the posts of civil services of Andhra Pradesh in
view of certain special provisions applicable to these
services. Article 371D of the Constitution of India is
peculiar to the State of Andhra Pradesh due to historical
background. It was enacted by the Constitution (Thirty-
Second) Amendment Act which applied only to the State of
Andhra Pradesh, with a view to give effect to certain safe-
guards in the matter of employment opportunities for resi-
dents of Telangana region. This Article empowers President
to provide by order for equitable opportunities and facili-
ties 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. This Article also provides
for constitution of an Administrative Tribunal to receive
representations for the redressal of the grievances and for
passing necessary orders. Accordingly the President of India
made Andhra Pradesh Public Employment (Organisation of Local
Cadres and Regulation of Direct Recruitment) Order, 1975
(’Presidential Order’ for short) by virtue of which the
State of Andhra Pradesh has been divided into six zones and
local cadres of posts in respect of the local areas were
created. In respect of Andhra Pradesh Panchayati Raj Engi-
neering Service the two such zonal posts are junior Engineer
and Assistant Engineer. The main question that arises for
consideration in these cases is whether the promotion from
Junior Engineer to Assistant Engineer should be on the basis
of Statewide list or the zonal list. Some of the promotions
made were questioned by the affected persons before the
Administrative Tribunal which disposed them of indicating
that such promotions should be made on the basis of the
Statewide list. The State of Andhra Pradesh has questioned
the same in C.A.No. 1342/86, C.A.No. 3985/88 and S.L.P.
(Civil) No. 9290/88 mainly on the ground that promotions
should be confined to only within local cadres and zonal
posts. S.L.P. (Civil) No. 2150/87 is filed by two such
Engineers whose representation was disposed of by the Tribu-
nal directing the Government to redetermine their positions
in the Seniority list instead of giving a definite declara-
tion as prayed for by them.
Shri K.Madhava Reddy, learned counsel appearing for the
State of Andhra Pradesh, submitted that both the posts of
Junior Engineer and Assistant Engineer are zonal posts under
the Presidential Order and the zonal seniority list has to
be followed in the matter of promotions from
32
Junior Engineer to Assistant Engineer and not the Statewide
seniority list of Junior Engineers. He also submitted that
all promotions made so far pursuant to certain orders should
be treated as provisional and that the State Government
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15
should be permitted to review these promotions on the basis
of the zonal seniority list and that all further promotions
shall be made on the basis of the zonal seniority list.
According to the learned counsel, for the purpose of promo-
tion to the higher post of Executive Engineer which is not a
zonal post, a Statewide seniority list of Assistant Engi-
neers of all zones should be prepared on the basis of which
promotion to the post of Executive Engineer will be made.
Shri Sitaramiah, learned counsel appearing for respondents,
submitted that Article 371D(2) refers only to direct re-
cruitment and the Presidential Order made under the said
Article cannot make a departure and cannot be made applica-
ble for promotions also. On the other hand, it is the State-
wide list that should be the basis for promotions. In sup-
port of his submissions he invited our attention to the
provisions of Article 371D and the Presidential Order and
emphasised the word ’employment’ as occurring in the Article
should be confined only to direct recruitment. Shri P.P.
Rao, learned counsel appearing for other set of respondents
in the appeals filed by the State of Andhra Pradesh, submit-
ted that even if either of the lists is to form the basis
for promotions his clients are not affected and their promo-
tions are being unnecessarily delayed. Some of the Engineers
of the Andhra Pradesh Panchayati Raj Engineering Service got
themselves impleaded in the appeal filed by the State of
Andhra Pradesh and Shri B. Kanta Rao appearing on their
behalf supported the stand taken by the Government of Andhra
Pradesh.
To appreciate these rival contentions it becomes neces-
sary to refer to some of the relevant provisions of Article
371D as well as the Presidential Order and some of the
notifications made thereunder and the relevant provisions of
the A.P. Panchayati Raj Engineering Service Rules. On Novem-
ber 1, 1956 as a result of reorganisation of the States the
erstwhile State of Hyderabad was trifurcated and Telangana
region became a part of the newly formed State of Andhra
Pradesh. Certain safeguards were envisaged for the Telangana
area in the matter of development and also in the matter of
employment opportunities and education facilities for the
residents of that area. In the year 1957 the Public Employ-
ment (Requirement as to Residence) Act was enacted inter
alia to provide for employment opportunities for residents
of Telangana area. Some of the relevant provisions were held
to be unconstitutional by the Supreme Court due to a variety
of causes. The working of the safeguards gave rise to dis-
satisfaction sometimes in the Telangana area and sometimes
in the other areas of the State and even led to violent
agitations. A consensus was arrived
33
among several leaders of Andhra Pradesh to make a concerted
effort to analyse the factors which have been giving rise to
the dissatisfaction and they suggested certain measures
known as "Six-Point Formula" and the same has been endorsed
by the State Government. A bill was brought forward to
provide for necessary constitutional authority for giving
effect to this formula and the same became the Constitution
(Thirty-Second) amendment Act under which Article 371D was
introduced. The relevant provisions of this Article for our
purpose are as under:
"371-D. Special provisions with respect to the
State of Andhra Pradesh-(1) The President may
by order made with respect to the State of
Andhra Pradesh provide, having regard to the
requirements of the State as a whole, for
equitable opportunities and facilities for the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15
people belonging to different parts of the
State, in the matter of public employment and
in the matter of education and different
provisions may be made for various parts of
the State.
(2) An order made under clause (1) may, in
particular:-
(a) require the State Government to organise
any class or classes of posts in a civil
service of, or any class or classes of civil
posts under, 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 cadres
so organised;
(b) specify any part or parts of the State
which shall be regarded as the local area-
(i) for direct recruitment to posts in any
local cadre (whether organised in pursuance of
an order under this article or constituted
otherwise) under the State Government;
(ii) for direct recruitment to posts in any
cadre under any local authority within the
State; and
(iii) for the purpose of admission to any
University within the State or to any other
educational institution which is subject to
the control of the State Government;
XX XX XX
(10)
The provisions of this article and of any
order made by the President thereunder shall
have effect notwithstanding anything in any
other provision of this Constitution or in any
other law for the time being in force."
34
It may be noted that clause (3) provides for constitu-
tion of an Administrative Tribunal. Now we may note some of
the relevant provision in the Presidential Order. In para 2
definitions of the various expression used in the Order are
given. They read thus:
"Para 2. Interpretations: - (1) In this Order,
unless the co text otherwise requires:-
(a) xx xx xx
(b) ’direct recruitment’ includes recruitment
made on a temporary basis but does not include
recruitment made in pursuance of any scheme
approved by the State Government providing for
the regularisation of the services of persons
holding posts on a temporary basis before the
commencement this order;
(c) ’local area’ in relation to any local
cadre, means the local area specified in
paragraph 6 for direct recruitment to posts
such local cadre, and includes, in respect of
posts belonging the category of Civil Assist-
ant Surgeons, the local area specified in
sub-paragraph (5) of paragraph 8 of this
Order;
(d) ’local authority’ does not include any
local authority which is not subject to the
control of the State Government;
(e) ’local cadre’ means any local cadre of
post under the State Government organised in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15
pursuance of paragraph 3, or constituted
otherwise for any part of the State;
(f) ’local candidate’ in relation to any local
area, means a candidate who qualifies under
paragraph 7 as a local candidate relation to
such local area;
(g) xx xx xx
(h) ’Schedule’ means a Schedule appended to
this Order;
(i) xx xx xx
(j) ’specified gazetted category’ means any
gazetted category specified in the Third
Schedule and includes any other gazetted
category notifies as such by the Central
Government;
(k) xx xx xx
(l) xx xx xx
35
(m) ’Zone’ means a zone specified in the
Second Schedule comprising the territories
mentioned therein.
xx xx xx
Para 3. Organisations of Local Cadres:- (1)
The State Government shall, within a period of
eighteen 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.
(G.O. Ms. No. 794, G.A.(A) dated 12.11.1976)
"Provided that, notwithstanding the expira-
tions of the said period, the president may by
order, require the State Government, whenever
he considers it expedient so to do, to orga-
nise any classes of posts in the civil serv-
ices of, and classes of civil posts, under the
State into different local cadres for differ-
ent parts of the State." (Proviso is added as
per G.O. Ms. No. 34,
G.A.D. (SPFA), dated 24th January, 1981).
(2) The posts belonging to the category of
Junior Assistant, and to each of the other
categories equivalent to, or lower than that
of a Junior Assistant in each department in
each district shall be organised into a sepa-
rate cadre.
Explanation:- For the purposes of this sub-
paragraph, subparagraph (1) of paragraph 6,
and sub-paragraph (1) of paragraph 8, a cate-
gory shall be deemed to be equivalent to or
lower than that of a Junior Assistant if the
minimum of the scale of pay, of a post belong-
ing to a category or where the post carries a
fixed pay, such fixed pay equal to or lower
than the minimum of the scale of pay of a
Junior Assistant.
(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.
(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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15
sub-paragraphs (3) and (4), the State Govern-
ment may, where it considers it expedient to
do so and with the approval of the Central
Government, organise the posts belonging to
any of the categories
36
referred to therein, in any department, or any
establishment thereof, in two or more continu-
ous zones into a single cadre.
xx xx xx
Para 4. Allotment 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
regards 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 with reference to age and senior-
ity, 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
languages spoken and the law in force in the
part of the State lot which the local cadre is
organised;
(e) preference of the persons concerned for
allotment to any local cadre, where feasible.
xx xx xx
Para 5. Local cadres and transfer of persons:-
(1) Each part of the State for which a local
cadre has been organised in respect of any
category of posts, shall be a separate unit
for purposes of recruitment, appointment,
discharge, seniority, promotion and transfer,
and such other matters, as may be specified by
the State Government, in respect of that
category of posts.
xx xx xx
Para 13. Certain appointments and promotions
to be provisional:- Any certain appointments
and promotions made after the commencement of
this order or any order made in pursuance of
the proviso to paragraph 3, as the case may
be, and before any local cadre has been orga-
nised under the provisions of this Order made
in pursuance of the Proviso to
37
paragraph 3, to any post which is required to
be included in such cadre shall be provisional
and shall, within a period of twelve months
after such organisation, be reviewed and
readjusted in accordance with the provisions
of this order.
Explanation:- For the purposes of this para-
graph, any local cadre shall be deemed to be
organised, with the allotment of persons to it
under paragraph 4. (Substituted as per G.O.
Ms. No. 234, GAD (SPF-A) Dept., dated 24th
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15
Jan., 1981).
xx xx xx
THE SECOND SCHEDULE
(See paragraphs 2 (1) (m) and 8 (4)
Zones
Zone I Shrikakulam and Visakhapatnam districts.
Zone II East Godavari, West Godavari and Krishna
districts.
Zone III Gunrur, Prakasam and Nellore districts.
Zone VI Chittoor, Cuddapah, Anantapur and Kurnool
districts.
Zone V Adilabad, Karimnagar, Warangal and Khammam
districts.
Zone VI Hyderabad, Nizamabad, Mahabubnagar, Medak
and Nalgonda districts.
THE THIRD SCHEDULE
[See paragraphs 2(1) (j) and (4)
Specified Gazetted Categories
Sr. No. Category Name of the Department
(1) (2) (3)
xx xx xx
30. Assistant Engineers Panchyati Raj Enginee-
ring Department
30 A. Junior Engineers do
xx xx xx
40. Junior Engineers Public Works Department
(Irrigation)
41. Assistant Engineers Public Works Department
(Irrigation)
42. Junior Engineers Public Works Department
(R&B)
43. Assistant Engineers - do-"
(emphasis supplied )
38
It is clear from these provisos that the primary purpose
of Article 371D was to promote speedy development of the
backward areas of the State of Andhra Pradesh with a view to
secure balance in the 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. Accordingly the Presidential
Order was made.
From the above extracted provisions of the Order it can
be seen that State of Andhra Pradesh was divided into six
zones and the 4th zone, with which we are concerned, com-
prises of Chittoor, Cuddapah, Anantpur and Kurnool Dis-
tricts. As noted above Schedule III enumerates various
specified gazetted categories and Junior Engineers and
Assistant Engineers in the Panchayati Raj Engineering De-
partment as well as in the Public Works Department (Irriga-
tion) and (Roads and Buildings) are among those various
categories mentioned therein. Paragraph 3 provided for
organisation of local cadres in respect of classes of posts
in the civil services in the State of Andhra Pradesh. Under
para 3(4) the posts belonging to each specified category in
each department in each zone shall be organised into a
separate cadre. Para 4 provides for the allotment of persons
holding posts into such local cadres to be organised. Para 5
which is important, lays down that each part of the State
for which a local cadre has been organised in respect of any
category of posts, shall be a separate unit for purposes of
not only recruitment etc. but also in respect of promotion.
Para 13 lays down that in certain appointments or promotions
after the commencement of the Presidential Order or any
order made in pursuance of the proviso to paragraph 3 and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15
before any local cadre has been organised, shall be provi-
sional and shall within a period of twelve months after such
organisation of local cadre, be reviewed and readjusted in
accordance with the provisions of the Presidential Order.
A.P. Panchayati Raj Engineering Service Rules were
framed in the year 1963. These Rules provide for the ap-
pointments of different categories of engineers. After the
Presidential Order was issued a new Rule 2-A was introduced
on 26.11.79 to bring the State Rules in conformity with the
provisions of the Presidential Order.
Rule 2-A reads thus:
"Rule 2-A Unit of Appointment: For
purposes of recruitment,appointment, discharge
for want of vacancy, re-appointment, seniori-
ty, transfer, promotion and appointment as
full member in respect of category 4,
Deputy Executive Engineers, each
39
zone comprising the districts specified
against each shall be a separate unit:
xx xx xx
Zone IV: Chittoor, Cuddapah, Anantpur and
Kurnool districts.
xx xx xx
Provided that the post of Deputy Executive
Engineers in the office of the Chief
Engineer (Panchayati Raj) shall be filled on a
tenure basis by drafting persons equitably
from different units and the period of tenure
shall not ordinarily exceed three years;
Provided further that the posts of Deputy
Executive Engineers in the Rigs Divisions
notified as Special Officers under the Andhra
Pradesh Public Employment (Organisations of
Local Cadres and Regulation of Direct Recruit-
ment) Order, 1975 shall be filled by drafting
persons from the units over which the respec-
tive Rigs Division is having jurisdiction.
(G.O. Ms. No. 1024 PR, dated 26.11.1979)."
Regarding the scope of this rule it is the submission of
the learned counsel for the State of Andhra Pradesh that a
combined reading of Rule 2-A read with para 13 of the Presi-
dential Order would show that the said Rule has retrospec-
tive effect, therefore the Government is at liberty to
revise the promotions made otherwise then on the basis of
the zonal seniority list. But Shri Sitaramiah, learned
counsel, submitted that the said Rule cannot be given retro-
spective effect and the same applies to vacancies arising
thereafter and therefore the promotions already made should
not be disturbed.
It is an admitted fact that there was a Statewide list
of Junior Engineers before 28.10.75 namely before the Presi-
dential Order was made. Questioning some of the promotions
made by the Government, representation petitions were filed
before the A.P. Administrative Tribunal. In such matters the
Tribunal observed that as a precautionary measure the jun-
iors to the petitioners therein in the Statewide list cannot
be promoted before the petitioners’ cases are considered for
the appointment to the post of Executive Engineer which is a
higher post. In all the orders passed by the Tribunal there
is an indication that the Statewide list should be the basis
for promotion. Though they appear to be in the nature of
interim
40
directions but the ratio relied upon is that the promotion
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15
should be on the basis of the Statewide list. Therefore the
question that has been canvassed by the State Government in
all these matters is that the observation and the directions
given by the Administrative Tribunal are opposed to the very
object underlying the Presidential Order and is contrary to
various provisions therein.
At this juncture it is essential to note the principle
and object underlying the zonal system as provided for in
the Presidential Order. We have already noted that the
object underlying Article 371D is to promote speedy develop-
ment of the backward areas and to provide equal opportuni-
ties to different areas of the State in the matter of em-
ployment etc. This Article is a special provision which
makes departure from the general scheme of the Constitution.
In High Court of Andhra Pradesh and Ors. v. V.V.S.
Krishnamurthy and Ors., [1979] 1 SCR 26 after referring to
the Statement of Objects and’ Reasons of the Constitution
(Thirty-Second) Amendment Act, it was observed as under:
"It will be seen from the above extract, that
the primary purpose of enacting Article 371D
was two-fold; (i) 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 (ii)
to provide "equitable opportunities" to dif-
ferent areas of the State in the matter of
education, employment and career prospects in
public service.
(1) To achieve this primary object, Clause (1)
of Article 371D 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 educa-
tion." Clause (2) of the Article is complemen-
tary to Clause (1). It particularises the
matters which an order made under Clause (1)
may provide. For instance, its sub-clause (c)
(i) enables the President to specify in his
Order, "the extent to which, the manner in
which and the conditions subject to which,
preference or reservations shall be given or
made in the matter of direct recruitment to
posts in any local cadre under the State
Government or under any local authority. Sub
clause (c) further makes it clear that resi-
dence for a specified period in the local
area, can be made a condition for recruitment
to any such local cadre. Thus, Clause (4)
also, directly is designed to achieve the
primary object of the legislation."
41
The Presidential Order was made keeping in view this
Object and suitable provisions are inserted. With a view to
achieve this Object and in conformity with the provisions of
the Order, the State is divided into six zones and certain
specified gazetted services are included in the local
cadres. The A.P. Panchayati Raj Engineering Services is one
such and two categories of posts namely Junior Engineers and
Assistant Engineers are such zonal posts. It may be men-
tioned here that the validity of the Presidential Order is
not being questioned. Therefore we have to proceed on the
basis that all the provisions of the Presidential Order are
valid.
The further and rather the main submission of the re-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15
spondents is that the Presidential Order only lays down the
criteria for claiming eligibility as a local candidate on
the basis of the period of residence or of stay in that
local area and reservations are meant to be made to the
local cadre only in respect of direct recruitment to the
said posts mentioned therein and therefore the power con-
ferred under the Article should be confined only to direct
recruitment. In this context the learned counsel also relied
very much on the expressions used in Article 371D (1) and
(2). The learned counsel also submitted that initially the
Junior Engineers are selected by the Public Service Commis-
sion and are given a ranking and they are allotted to the
local cadre and to that extent that may become a zonal post.
But when it is a question of promotion to the higher post of
Assistant Engineer though shown as a zonal post by virtue of
being included in the local cadre, it should be only on the
basis of the seniority in the Statewide list originally
prepared by the public Service Commission. The learned
counsel very much relied on the expression ’in the matter of
public employment’ and the other expressions used in Article
371D (1) and (2).
First we shall consider the submission that the purport
of Article 371D and the Presidential Order in respect of
direct recruitment does not apply to promotion. The expres-
sion ’in the matter of public employment’ in clause (1), in
our view, is of wider import. The public employment can be
by way of direct recruitment or by promotion. In The General
Manager; Southern Railway v. Rangachari, [1962] 2 SCR 586
this Court considered the scope of Articles 16 (1), (2) and
(4) and it was observed that Articles 16 (1) and (2) of the
Constitution are intended to give effect to Articles 14 and
15(1) of the Constitution and they arc supplemented to each
other. Regarding the meaning of the word "employment" it is
noted that:
"Article 16 (1) should, therefore, be con-
strued in a broad and general, and not pedan-
tic and technical way, so construed, "matters
relating to employment" cannot mean merely
matters prior to the act of appointment nor
can ’appointment’ to any
42
office mean merely the initial appointment but
must include all matters relating to employ-
ment, whether prior or subsequent to the
employment, that are either incidental to such
employment or form part of its terms and
conditions and also include promotion a selec-
tion post.
"Although Article 16(4) which in substance is
an exception to Arts. 16 (1) and 16(2) and
should, therefore, be strictly construed, the
court cannot in construing it overlook the
extreme solicitude shown by the Constitution
for the advancement of socially and education-
ally backward classes of citizens."
It is thus concluded that Article 16(4) authorises the
State to provide for reservation of appointments as well as
selection posts. At this juncture it may be noted that
Article 371D (10) declares that any order made by the Presi-
dent shall have effect notwithstanding anything in any other
provision of the Constitution or in any other law for the
time being in force. Therefore notwithstanding anything
contained in the A.P. Panchayati Raj Engineering Service
Rules, the promotions have to be based on zonal list other-
wise the very object sought to be achieved as per Article
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15
371D and the Presidential Order would be defeated. Shri
Sitaramiah, however, laid considerable stress on Article
371D (2) which empowers the President to make an order "in
particular" to specify any part or parts of the State which
shall be regarded as the local area for direct recruitment
in any local cadre. It is submitted that if clauses (1) and
(2) of Article 371D are read together the Presidential Order
can make provision only in respect of appointments by way of
direct recruitment and cannot be applied for promotion also.
But as laid down in Rangachari’s case the word "employment"
should be interpreted in a broad and general manner. The
ratio therein should be applied in interpreting the words
"in the matter of public employment" occurring in Article
371D also. Consequently it must be held that Article 371D
and the Presidential Order apply both for direct recruitment
and for promotion in respect of categories specified in the
Third Schedule. Article 371D (2) does not make any departure
from this principle. The words "in particular" therein only
lay emphasis on the aspect of creating local cadres for
different parts of the State for the purpose of direct
recruitment and treat such parts as local areas. This does
not in any manner restrict the scope of Article 371D wherein
it is clearly declared that in the matter of public employ-
ment, the President is empowered to make an order in the
manner stated therein and the public employment cannot but
be interpreted to include promotion also. It therefore
emerges that Article 371D is in general terms and applies to
the public employment as a whole and Article 371D(2) in
particular applies to direct recruitment. It is only comple-
mentary to clause (1) and particularises
43
the matters which an order made under clause (1) provides
for. Any other interpretation would defeat the object under-
lying these two provisions.
The other submission of Shri Sitaramiah, as already
noted, is that even assuming that Rule 2 (a) which came into
existence in 1979 is valid and applies to promotion also
then it can have only prospective effect and all the promo-
tions prior to this Rule should be only on the basis of the
Statewide list. In considering this argument we have to bear
in mind para 13 of the Presidential Order which specifically
lays down that certain appointments and promotions after the
commencement of the Order should be treated as provisional
and the same should be reviewed an readjusted in accordance
with the Presidential Order for the purpos of preparing the
local cadres and allotting to the zones. The learned coun-
sel, however, relied on two judgments of this Court in Y. V.
Rangiah and Others etc. v. J. Sreenivasa Rao and Others
etc., [1983] 3 SCC 284, and N.T. Devin Katti and Others v.
Karnataka Public Service Commission and Others, [1990] 3 SCC
157, in support of his submission that the said Rule cannot
be given retrospective effect and that the promotions should
be made only in accordance with the unamended A.P. Pan-
chayati Raj Engineering Service Rules, 1963. But having
regard to the historical background and the object underly-
ing Article 371D and the Presidential Order and in particu-
lar para 13 of the Order the promotions, if any, made,
should be treated only as provisional. If Rule 2(a) is
viewed from this angle particularly in the light of paras 5
and 13 of the Presidential Order it becomes clear that the
said Rule has to be given retrospective effect so that the
promotions to the junior posts can be brought in conformity
with Article 371D and the Presidential Order. Accordingly
any promotions made should be treated only as provisional
and they should be reviewed and readjusted.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15
This leads us to the question whether the promotions
from the post of Junior Engineer to Assistant Engineer
should be based on zonal seniority list or on the Statewide
seniority list. Rule 2(a) makes it abundantly clear that for
the purpose of recruitment, appointment, promotion, transfer
etc. each zone shall be a separate unit. Para 5 of the
Presidential Order is also to the same effect. When once
each zone is treated as a separate unit for the purpose of
promotion also in respect of zonal posts then by virtue of
Article 371D and the Presidential Order, as observed above,
the promotion from the post of Junior Engineer to the post’
of Assistant Engineer which are both zonal posts, should be
on the basis of the zonal seniority list inasmuch as the
post of Junior Engineer and the next promotion post namely"
Assistant Engineer are included in the local cadre and the
zonal list as we find-in the Third Schedule. With regards
the higher posts which are not included in the local cadre
and which are Statewide posts, it
44
becomes obvious that the Statewide seniority list of the
Assistant Engineers of all zones should be prepared and that
should be the basis of promotion to the post of Executive
Engineer which is not a zonal post. Therefore it emerges
that the directions given by the Tribunal to ensure that no
Junior Engineer is promoted earlier than their seniors in
the Statewide seniority list to the post of Executive Engi-
neer, should be quashed.
Shri Sitaramiah, however, pointed out certain anamolies
if such a principle is to be followed. According to the
learned counsel, if the promotions are to be made only on
the basis of the zonal list than there is every possibility
of some of the seniors in the Statewide list not getting
promotions and the same would result in some of the juniors
becoming seniors which would ultimately affect the promo-
tional avenues for the Statewide higher post like Executive
Engineer. But it must be noted that Article 371D is of
exceptional nature and the object is to provide equal oppor-
tunities in the backward areas in respect of the specified
posts mentioned in the Third Schedule which are included in
the local cadre which thus became zonal posts. As mentioned
in para 5 of the Presidential Order and Rule 2 (a) of the
Engineering Service Rules such zones should be treated as
separate units for the purpose of promotions also. Therefore
there is valid nexus to the object that is sought to be
achieved and even if there is some anamoly it cannot on that
basis be said that such promotions for zonal posts on the
basis of the zonal seniority list amounts to discrimination.
In S.Prakasha Rao and another v. Commissioner of Commercial
Taxes and Others, [1990] 2 SCC 259, a Bench of three Judges
of this Court affirmed the view taken by the Administrative
Tribunal, Andhra Pradesh that the zonal seniority list
prepared pursuant to the initial organisation and creation
of local cadres is to be maintained and such zonal seniority
list is the criteria for promotion.
In the result we hold that all promotions of Junior
Engineers (redesignated as Assistant Executive Engineers) to
the next higher post of Assistant Engineers (re-designated
as Deputy Executive Engineers) have to be made on the basis
of the zonal seniority lists as indicated above and not on
the basis of the Statewide seniority list of Junior Engi-
neers. The promotions made after the Presidential Order
dated 18.11.75 should be treated as provisional and the
Government is permitted to review these promotions on the
basis of zonal seniority lists and re-adjust the same. All
the future promotions from the post of Junior Engineer to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 15
the post of Assistant Engineer should necessarily be made on
the basis of the zonal seniority lists. For the purpose of
promotion to the post of Executive Engineer, which is not a
zonal post, a Statewide seniority list of the Assistant
Engineers of all zones should be prepared and such Statewide
seniority
45
list should form the basis of promotion to the post of
Executive Engineer. The State Government is accordingly
directed to prepare such lists i.e. zonal seniority lists of
various zones for the purpose of promotions from Junior
Engineers to Assistant Engineers within the zones and also
Statewide seniority list of the Assistant Engineers of all
zones for the purpose of promotion to the post of Executive
Engineer. Such of the Directions given by the Tribunal in
the matters before us which are contrary to or different
from the above conclusions, remain quashed. The inter-se
seniority and the consequent promotions of respondent Nos. 1
to 5 in Civil Appeal No. 3935/88 as well as the petitioners
in Special Leave Petition (Civil) No. 2150/87 shall be
determined subject to the above directions. All these mat-
ters are disposed of accordingly with the above directions.
In the circumstances of the cases, there will be no order as
to costs.
G.N. Appeals disposed of.
46