Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PEITTION (C) NOS. 156566 OF 2021]
THE STATE OF TELANGANA & ANR. ......PETITIONERS
VERSUS
B. SUBBA RAYUDU AND OTHERS ....RESPONDENTS
J U D G M E N T
INDIRA BANERJEE J.
These Special Leave Petitions are against a final judgment and order
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dated 8 December 2020 whereby the High Court for the State of
Telangana and for the State of Andhra Pradesh at Hyderabad, allowed the
Writ Petitions filed by the Respondent No.1 being Writ Petition (TR.) No.
5482 of 2017 and Writ Petition No. 24820 of 2017, set aside an order being
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F. No. 29/01/2016SR(S) dated 14 January 2016 of the Ministry of
Signature Not Verified
Digitally signed by
GEETA AHUJA
Date: 2022.09.14
16:59:16 IST
Reason:
Personnel, PG and Pensions and directed the Ministry of Personnel, PG and
Pensions to allocate the Respondent to the State of Telangana with effect
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from 14 January 2016. The State of Telangana was directed to give a
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posting to the Respondent in the cadre of Joint DirectorClass A in the
Animal Husbandry Department of the State of Telangana and also pay
salary to the Respondent as Joint DirectorClass A in the Animal
Husbandry Department within four weeks from the date of the judgment
and order.
2. The Respondent No.1, a member of a Scheduled Tribe, held the State
Cadre post of Joint DirectorClass A in the Animal Husbandry Department
of the undivided State of Andhra Pradesh. Smt. B. Shanthabai, wife of the
Respondent No.1, was also a State Government employee working as
Assistant Registrar in the same State.
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3. By a Notification No.S.O.655B dated 4 March 2014, the Central
Government notified the Andhra Pradesh Reorganisation Act, 2014
bifurcating the State of Andhra Pradesh into two States the new State of
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Telangana and the residue state of Andhra Pradesh with effect from 2
June 2014.
4. In terms of Section 80 of the Andhra Pradesh Reorganisation Act,
2014, the Central Government issued a Circular being F. No.
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27/13/213/SRS dated 29 October 2014 laying down guidelines for
allocation of employees to the States of Telangana and Andhra Pradesh,
respectively.
5. As per the said Guidelines and in particular Paragraph No. 12 Clause
(vii) thereof, no allocable posts were to be omitted while distributing the
cadre strength between the States of Telangana and Andhra Pradesh.
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6. By a Circular being G.O. Ms.312 dated 30 October 2014, the
Government of Andhra Pradesh circulated the approved Guidelines for final
allocation of State Government Employees to All India Services under the
Andhra Pradesh Reorganisation Act, 2014. Some of the relevant provisions
of the Guidelines are set out hereinbelow for convenience:
“ 18 . The following principles and procedure shall guide the final
allocation of personnel:
a) Persons who immediately before the appointed day are serving
on substantive basis in connection with the affairs of the existing
State of Andhra Pradesh shall be considered for allocation,
Employees holding posts on purely ad hoc basis immediately before
the ‘appointed day’ shall be considered against substantive posts
(or regular) held by them on the ‘appointed day’ if any.
b) Allocation of employees would be based on final distribution of
posts including vacant posts proposed by the Advisory Committee in
consultation with the successor States and after approval of the
Central Government.
c) Allocable employees shall be considered for allotment between
the successor States on the basis of seniority list as available on
June 01, 2014.
d) ….There shall not be any case of an employee not being
allocated to either of the successor States.
e) State service employees who hold allocable posts shall be
allocated after seeking option from the employees indicating their
preference to serve in either of the successor States after taking
their option into consideration.
f) The allocation shall be done in order of seniority as
available on June 01, 2014. Those who have opted, who are
‘local candidate’s’ relatable to the State to which they have
opted, shall, in order of their seniority, be considered for
allocation first. If allocable posts in that category remain,
then others who have opted to the state may be allocated in
order of seniority. If still posts remain allocation will be
made in reverse order of seniority.
…
h) Employees who are not local in relating to both States will be
allocated on the basis of place of birth or home district, as the case
may be, after due verification and certification. Those originally
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from other States will be allocated on a case by case basis after
considering their option.
i) Employees who are members of the Scheduled Castes or
Scheduled Tribes shall be considered for allocation on the basis of
their option if they are local candidates. IN the event an SC or ST
employee has not exercised his option or where he has not been so
allocated he/she shall be allocated to the State where his caste or
tribe, as the case may be, is included in the concerned schedule of
the State.
…
k) Spouse of an All India Service (AIS) officer who belongs to a State
Cadre or is an employee of a State Government institution shall be
allocated, where so desired by the spouse, to the State to which the
AIS officer is allocated.
l) Spouses in State Cadre in Government or in the State
Government institutions, local bodies and those who are
deemed allocated as per the Act, shall as far as practicable,
be allotted to the same State, after considering options made
by them and their local candidature. Spouses who are local
candidates of a State Shall be allocated to that State.
Spouses who belong to different States may be allocated
after considering their options.
…
n) Local candidature shall be as defined under the Andhra
Pradesh Public Employment (Organisation of Local Cadres
and Regulation of Direct Recruitment) Order, 1975 as
certified by the competent authority, with strict reference to
the school records. While the committee may take into
consideration entry made in the service register as prima
facie proof of local candidature, it shall be open to either
government or the committee to subject the genuineness of
the employee’s local candidature status to strict verification.
False claim of local candidature or production of false
certificate with the intent to mislead shall be punishable as
a criminal offence and also be subject to major disciplinary
proceedings.
…
s) Employees belonging to allocable categories of one department
working in another department or organisation on
deputation/tenure basis will be allotted by the parent department of
the officer.
x) The actual allocation of personnel to States shall be guided by
the public interest and the administrative needs of the posts in the
States.
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. The Committee shall follow the procedure hereinafter mentioned
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for allocation of employees:
i. All employees would be asked to exercise their options in the
prescribed proforma annexed to these Guidelines, and forward their
duly filled option form to the Member Secretary, Advisory
Committee, G A State Reorganisation Department. A P Secretariat
electronically and through the proper channel indicating their
preference for either of the States within two weeks from the date of
public notification calling for options.
ii. Letter calling for options shall be given wide publicity through
print and electronic media. A copy of the letter shall also be placed
in the public domain for wide publicity.
iii. The employees, who are eligible for allocation to either of the
successor States as specified above, will submit their option form
addressed to the Member Secretary, Advisory Committee through
the respective Administrative Departments of the Government in
which they are working, to the Andhra Pradesh State General
Administration State Reorganisation Department.
iv. Scrutiny of statements made in the option forms shall be done
and factual accuracy of the statement made therein certified by the
head of the department under whom the employee is working. The
forms so certified shall be delivered to the GA (SR) Department of
the A P Government.
v. If no option is received within the prescribed time, or where an
employee is willing to be allotted to either of the two states such
person shall be allotted based on the other criteria.
vi. Option once exercised cannot be changed under any
circumstance.
vii. After the distribution of posts is finalised, the Advisory
Committee will draw up, with the help of the departments
concerned and the G A State Reorganisation Department of A P
Government, a Tentative Allocation List for all employees whether
they have exercised option or not. The Member Secretary of the
Advisory Committee will circulate the Tentative Allocation List to the
respective successor State Government for information of their
employees and for submission of representations, if any, by such
employees, within a period of two weeks from the date of such
communication. The GA State Reorganisation Department of AP is
required to issue the Tentative Allocation List on behalf of the
Advisory Committee. The list shall be widely published and
circulated inviting representations of employees against their
tentative allocation.
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. Representations against tentative allocation may be received
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and disposed off in the following manner:
i. An employees who feels aggrieved by his tentative allocation,
as prepared by the Advisory Committee would be at liberty to
submit his representations to the Chief Secretary to the successor
State in which he is serving, with a copy to the State
Reorganisation Department constituted in the State of Andhra
Pradesh.
ii. Representation of an employee should be selfcontained, clearly
indicating the specific points of grievance and should be
addressed to the Advisory Committee. The concerned
administrative department will offer its views on the
representation and forward it to the G A State Reorganisation
Department of the Government of AP.
iii. The successor State of Andhra Pradesh shall furnish its official
comments in the light of the remarks of the administrative
department on the representations received keeping in view of
law, rules, and orders, and would forward the same for further
consideration of the Advisory Committee.
iv. The Advisory Committee will consider the representation of the
employees after taking the views of Administrative Department
concerned at a meeting attended by the representatives of the two
States and the Central Government. The recommendations will
thereafter be forwarded to the Central Government with the
recommendations of the Advisory committee for taking a final view
in the matter.
v. Based on the recommendations of the Advisory Committee, the
Central Government shall issue final allocation orders under
Section 77 of the Act allocating the employees to either of the
State.
vi. The Central Government shall have the power to review any of
its orders issued under the Act.
vii.The Member Secretary of the Committee would be responsible
for guiding the Advisory Committee in this regard.”
7. The sanctioned strength of posts in the cadre of Joint DirectorClass
A in the Animal Husbandry Department were 23, out of which, 13 posts
were allotted to Andhra Pradesh and 10 posts were allotted to Telangana.
At the time of bifurcation, two out of the 23 posts were vacant.
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8. On 7 March 2015, the Respondent opted for allocation to the State
of Telangana. At the material point of time, the Respondent was working as
Project Director, ATMA, Ranga Reddy District, Hyderabad on deputation.
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However, by a Notification No. 21105B/SRI/AI/20144 dated 12 June
2015, the Respondent was allotted to the State of Andhra Pradesh
tentatively. The Respondent submitted his objection against his tentative
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allocation to the State of Andhra Pradesh on 26 June 2015, pursuant to
the proceedings being GAD(SR), Department, Notification No.
21105/B/SRI/20144.
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9. On 26 June 2015, the Respondent made a representation that he be
considered a local candidate of the State of Telangana. The representation
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was not considered. By an order No. 5(2)/2016 dated 14 January 2016
in the proceedings being F. No. 29/01/2016, the Ministry of Personnel, PG
and Pensions of the Department of Personnel and Training, Government of
India, allotted the Respondent to the State of Andhra Pradesh.
10. The Respondent filed an application being O.A No.209/2016 before
the Central Administrative Tribunal at Andhra Pradesh, challenging the
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aforesaid allocation order dated 14 January 2016 issued by the
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Government of India. On 29 January 2016, the Administrative Tribunal
issued notice in the application and passed an interim order to the effect
that the final allocation of the Respondent to the State of Andhra Pradesh
would be subject to the final result of the Original Application.
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11. By an order 4 February 2016, the Animal Husbandry, Dairy
Development and Fisheries Department of the Government of Telangana
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relieved the Respondent. By an order dated 5 February 2016, the
Government of Telangana, Department of Animal Husbandry, directed the
Respondent No.1 to report to the Head of the Department, Andhra Pradesh
for further posting.
12. The Respondent filed a Writ Petition being Writ Petition No. 4391 of
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2016 in the High Court challenging the interim order dated 29 January
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2016 passed by the Administrative Tribunal. By an order dated 16
February 2016, the High Court allowed the Writ Petition No. 4391 of 2016
and remanded the matter back to the Tribunal for fresh consideration and
directed the Tribunal to pass a speaking order, after hearing both the
parties, within two weeks. It was also directed that the Respondent No.1
should not be relieved from his present place of posting till disposal of the
Interlocutory Application.
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13. By an Order being Memo No. 8356/Agri(1)/2016 dated 16 January
2017, the Government of Telangana Agriculture and Cooperation
Department, repatriated the Respondent No.1 with instructions to report to
his parent Department with immediate effect.
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14. On 7 March 2017, the Respondent informed the Commissioner and
Director of Agriculture Department and handed over complete charge of the
post of Project Director, ATMA, Ranga Reddy District to Shri Y. Sudhakar
Reddy.
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15. On the same date i.e. 7 March 2017, the Respondent was relieved
from the post of Project Director, ATMA, Ranga Reddy District and a
certificate of transfer of charge was issued to him.
16. In 2017, the Administrative Tribunal for the State of Telangana was
abolished and the case being O.A. No. 209/2016 filed by the Respondent
was transferred to the High Court for the State of Telangana and for the
State of Andhra Pradesh at Hyderabad and was renumbered as Writ
Petition (TR) No. 5482 of 2017.
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17. By the impugned judgment and order dated 18 February 2017, the
High Court allowed both the Writ Petitions, setting aside the proceedings
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being F. No. 29/01/2016SR(S) dated 14 January 2016 (Final Allocation
Order) of the Ministry of Personnel, PG and Pensions, insofar as it
concerned the Respondent No.1.
18. The Ministry was directed to allocate the Respondent No.1 to the
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State of Telangana with effect from 14 January 2016 and the State of
Telangana was directed to forthwith give posting to the Respondent in the
cadre of Joint Director, ClassA in the Animal Husbandry Department of
the State of Telangana and also to release his salary within four weeks.
19. Mr. Aman Lekhi, learned Additional Solicitor General, appearing on
behalf of the petitioner, submitted that allocation had been made by the
Respondent No.5, i.e., the Government of India in the manner laid down by
law, i.e., as per Sections 77(2) and 80 of the Andhra Pradesh
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Reorganization Act, 2014, hereinafter referred to as the “Act of 2014”, read
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with the Final Allocation Guidelines issued on 29/30 December 2014.
20. Mr. Lekhi submitted that Section 77(2) of the 2014 Act provides that
as soon as may be, after the appointed day, the Central Government shall,
by general or special order, determine the successor State to which every
person referred to in Section 77(1) shall be finally allotted for service, after
consideration of option received from the employees, and the date with
effect from which such allotment shall take effect or be deemed to have
taken effect. The second and third proviso to the said Section provides that
“ as far as local, district, zonal and multizonal cadres are concerned, the
employees shall continue to serve, on or after the appointed day, in that
cadre: provided also that the employees of local, district, zonal and multi
zonal cadres which fall entirely in one of the successor States, shall be
deemed to be allotted to that successor State” .
21. Mr. Lekhi further submitted that Section 80 of the 2014 Act provides
for the constitution of Advisory Committee (AC) and for the issue of
allocation guidelines by the Central Government. The Government of
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Andhra Pradesh vide GOMs No. 312 dated 29/30 December, 2014 notified
the final allocation guidelines prepared under Section 80 of the 2014 Act.
The allocation of personnel was to be made in the manner provided under
Guideline 1417 and the allocation was to be made in terms of the
principles guiding allocation laid down in Guideline 18 of the final
allocation guidelines.
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22. It is not in dispute that by virtue of Guideline 18(c) of the Allocation
Guidelines, the allocation from amongst allocable employees was to be
made between the States of Andhra Pradesh and Telangana in order of
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seniority as available on 1 June, 2014.
23. Mr. Lekhi, however, submitted that the allocation was not to be made
solely on the basis of seniority. Local candidates of the State for which they
opt are to be considered in order of their seniority first. If the allocable
posts in that category still remain, then others who have opted might be
allocated in order of seniority.
24. Mr. Lekhi, argued that allocation was to be made first amongst those
local candidates of the State, who had opted for the State in order of their
seniority and thereafter, if allocable posts still remained, those posts were
to be filled up in the order of seniority from amongst nonlocal candidates
who had opted for the State.
25. Mr. Lekhi argued that the respondent No.1 had submitted his option
on the ground that he was a State Cadre employee and his wife a State
Government employee in the State of Telangana. Mr. Lekhi submitted that
a tentative allocation list of the State Cadre employees between the States
of Andhra Pradesh and Telangana was prepared and notified on 12th June,
2015 whereunder the Respondent No.1 was tentatively allocated to the
State of Andhra Pradesh.
26. The employees were given 14 days for filing representations/objections
against the tentative allocation and the Respondent No.1 had made a
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representation to be considered as local candidate of the State of
Telangana.
27. The representation was considered by the Allocation Committee in
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consultation with the heads of the department at meeting held on 16
November 2015, but the request of the Respondent No.1 for allocation to
Telangana was not accepted for the following reasons :
“(i) He is a ‘local candidate’ of Andhra Pradesh.
(ii) His request for allocation to Telangana on spouse ground
could not be accepted as his spouse was appointed to a
Zonal Cadre, i.e., ZoneII of erstwhile Andhra Pradesh
which entirely fell under the Successor State of Andhra
Pradesh and she was deemed allocated to Andhra
Pradesh as per provisions of Section 77(2) of the 2014 Act.
(iii) There was no vacancy in the State of Telangana to
accommodate him.”
28. Mr. Lekhi further submitted that the High Court erred in describing
the Respondent No.1 as a local candidate in the judgment and order
impugned ignoring the deemed appointment of his wife under Section 77(2)
of 2014 Act and disregarding the absence of vacancies.
29. Mr. Lekhi argued that the cadre strength in the category of Joint
directorClass A in Animal Husbandry Department was 23, of which 14
posts were allocated to Andhra Pradesh and 9 posts were allocated to
Telangana. However the number of allocable employees in the category of
Joint Director – Class A was 27 and out of 27 employees, 12 employees,
who were local to the State of Telangana and had also opted for the State of
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Telangana, were finally allocated to the State of Telangana against the 9
posts as per provisions contained in Guideline 18(f).
30. Mr. Lekhi argued that the Respondent No.1 who was ‘local candidate’
of the State of Andhra Pradesh was finally allocated to the State of Andhra
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Pradesh on 14 January, 2016 by the Ministry of Personnel, PG and
Pensions, Department of Personnel and Training vide proceeding F No.
29/01/2016SR(S).
31 Ms. Mohana appearing on behalf of the Respondent No.1 submitted
that the impugned judgment and order of the High Court is well reasoned
and does not call for interference under Article 136 of the Constitution of
India.
32. Ms. Mohana argued that Article 136 of the Constitution of India does
not create a regular forum of Appeal. It is only a residual provision which
enables this Court to interfere with the judgment and order of any Court or
Tribunal in India, in its discretion, as observed by this Court in
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Suriyakala v. A. Mohandoss and Ors. .
33. Citing
M/s Bengal Chemical and Pharmaceutical Works Ltd. v.
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Their Employees , Ms. Mohana argued that since power under Article 136
of the Constitution of India was discretionary, this Court was not bound to
set aside an order under Article 136, even if it was not in conformity with
law.
1 (2007) 9 SCC 196
2 AIR 1959 SC 633 (at 635)
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34. Ms. Mohana also cited Kunhayammed & Ors. v. State of Kerala
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and Another , State of Bombay v. Rusy Mistry , Municipal Board,
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Pratabgarh and Another v. Mahendra Singh Chawla and Others and
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Chandra Singh v. State of Rajasthan .
35. Ms. Mohana argued that the Respondent No.1 was a local candidate
of the State of Telangana. In any case, his spouse was a native of Telangana
and posted in Telangana. As such, the Respondent No.1 was also eligible
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under paragraph 18(1) of the said Guidelines dated 30 October 2014 for
allocation to the State of Telangana.
36. Ms. Mohana referred to the definition of ‘Local Candidate’. In the
definition of local candidate in paragraph 7 of the Andhra Pradesh Public
Employment Order, 1975 which reads:
“ 1 . A candidate for direct recruitment to any post shall be regarded
as a local candidate in relation to a local area.
(a) in cases where a minimum educational qualification has been
prescribed for recruitment to the post.
(i) if he has studied in an educational institution or educational
institutions in such local area for a period of not less then four
consecutive academic years ending with the academic year in
which he appeared or, as the case may be, first appeared for the
relevant qualifying examination; or
(ii) where during the whole or any part of the four consecutive
academic years ending with the academic year in which he
appeared or as the case may be, first appeared for the relevant
qualifying examination he has not studied in any educational
institution, if he has resided in that local area for a period of not
less than four years immediately preceding the date of
commencement of the qualifying examination in which he
appeared or as the case may be, first appeared.
3 (2000) 6 SCC 359
4 AIR 1960 SC 391 (at 395)
5 (1982) 3 SCC 331
6 AIR 2003 SC 2889
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(b) In cases where no minimum educational qualification has been
prescribed for recruitment to the post, if he has resided in that local area
for a period of not less than resided in that local area for a period of not
less than four years immediately proceeding the date on which the post
in notified for recruitment.”
37. Ms. Mohana pointed out that the Respondent No.1 had studied at
Khammam in the State of Telangana from Class VIII to X. Thereafter he did
his Bachelor of Veterinary Science and Animal Husbandry and Master of
Veterinary Science at the college of Veterinary Science, AP, Agricultural
University, Rajendernagar, Hyderabad (Telangana) from 1985 to 1992. Ms.
Mohana argued that having studied in the State of Telangana for 7
consecutive years ending with the academic year in which he appeared for
qualifying examination, the Respondent No.1 was a local candidate within
the meaning of Andhra Pradesh Public Employment (Organisation of Local
Cadres and Regulation of Direct Recruitment) Order, 1975 (hereinafter
referred to as “Andhra Pradesh Public Employment Order, 1975”).
38. Ms. Mohana emphasised that the Respondent No.1 had initially been
appointed as Assistant Director in Chevella Ranga Reddy District,
Hyderabad in 1993 through an examination conducted in the unified State
of Andhra Pradesh vide Recruitment Notification issued in 1992 by the
Andhra Pradesh Public Service Commission.
39. The Petitioner had studied at educational institutions in the State for
a period of not less than 7 consecutive academic years ending with the
academic year in which he first appeared for the relevant qualifying
examination and was selected and appointed by direct recruitment. The
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Respondent No.1 is therefore, to be regarded as a local candidate to the
zone in which the city of Hyderabad falls.
40. Referring to Clause 18(f) of the Andhra Pradesh State Guidelines
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issued on 30 October 2014, the final allocation of the State Cadre
Employees to the two states of Telangana and Andhra Pradesh shall be
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done on the basis of seniority as available on 1 June 2014.
41. Ms. Mohana also referred to paragraph 18(i) of the State Allocation
Guidelines under which employees who are members of the Scheduled
Castes or the Scheduled Tribes are to be considered for allocation on the
basis of their option if they are local candidates. If an SC or ST candidate
has not exercised his option or where he has not been so allocated, he/she
shall be allocated to the State where his caste or tribe, as the case may be,
is included in the concerned schedule of the State.
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42. Ms. Mohana emphasized on Clause 18(f) of the Guidelines dated 30
October 2014, which clearly states that allocable employees shall be
considered for allotment between the Successor States on the basis of
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seniority list as on 1 June 2014. As per the seniority list, the position of
the Respondent No.1 was at Sr. NO.4. All the three employees senior to the
Respondent No.1 were allocated State of Andhra Pradesh as per their
preference. The Respondent No.1 was thus the senior most in his cadre to
opt for the State of Telangana. Ms. Mohana argued that the Union of India
gave no weight to seniority of the Respondent No.1 and filled up vacancies
by persons who are native of Telangana, which is patently contrary to
clause 18 (f) of the Guidelines. Ms. Mohana argued that the High Court
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had correctly held that denial of posting to the Respondent No.1 from 8
March 2017 onwards and denying him salary from that date onwards was
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illegal. The Respondent No.1 was entitled to be paid salary from 8 March
2017 till date of posting by State of Telangana with interest at the rate of
7% per annum.
43. Ms. Mohana argued that the wife of the Respondent No.1 admittedly
being a local candidate of Telangana allocated to Telangana, the
Respondent No.1 needs to be allocated to Telangana. Ms. Mohana argued
that in any case the Respondent No.1 ought not have been relieved from
service in the State of Telangana while order of stay was operating in his
favour.
44. Ms. Mohana argued that after the Respondent No.1 was released
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from ATMA, Rangareddy District on 7 March 2017, he reported to Animal
Husbandry Department Telangana and requested that he be given up the
posting but to no avail.
45. The contentions of the Petitioners and the Respondent No.1 have
carefully and meticulously been dealt with by the High Court in its
impugned judgment and order. The High Court noted:
“ 7. Aggrieved thereby, petitioner gave a representation
dt.26.06.2015 stating that though he was born in Kadapa
District of Andhra Pradesh, he had studied Classes VIII, IX and
X at Khammam in the State of Telangana and subsequent
education including Post Graduation was also in the Telangana
State and so he is to be considered as a local candidate of
State of Telangana; he was initially appointed as Assistant
Director in Chevella, Ranga Reddy District in Telangana State
through an examination conducted by the A.P. Public Service
Commission in 1993 and he had only worked in Telangana
State; his wife was working in the Office of the Commissioner
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of Cooperation and Registrar of Cooperative Societies,
Telangana State, Hyderabad as Assistant Registrar; that she
was initially appointed as Junior Assistant in Krishna District
of the present residuary State of Andhra Pradesh against 'non
local' category as per the Andhra Pradesh Public Employment
(Organization of Local Cadres and Regulation of Direct
Recruitment) Order, 1975 issued by the President of India
under Clauses (1) and (2) of Article 371D of the Constitution of
India notified vide G.O.Ms.No.674, General Administration
(SPF A) Department dt.29.10.1975 (also called 'Presidential
Order of 1975'); during bifurcation process of the employees
between the two States, she was allotted to Telangana State by
way of an 'Order to Serve' proceeding dt.31.05.2014 of the
Director, Ministry of Public Grievances and Pensions,
Government of India; she was reallocated to the residuary
State of Andhra Pradesh subsequently; that she gave objection
to the same stating that she was born, brought up and
educated in Telangana State and she had rendered service for
16 years in the area covered by the said State and her
reallocation to Andhra Pradesh was absurd, illegal; that the
same was pending for consideration; that unless his wife's
request is considered or finalized his allotment ought not to be
considered.
He also stated that he had two children born and brought up
in Hyderabad, aged 15 years and 12 years respectively, who
were in Classes 10 and 8 respectively, and if he is allotted to
the State of A.P., their studies would be adversely affected.
He also stated that as per the Seniority List in the Cadre of
Joint Director, his position was at Serial No.4 and there are
existing vacancies in the Telangana State since three Joint
Directors from Telangana State were allotted to Andhra
Pradesh.
At the time of these events, petitioner was working as Project
Director, ATMA, Ranga Reddy District, Hyderabad in the
Agriculture Department of the State of Telangana on
deputation.”
46. The High Court found that notwithstanding the factors noted above
and notwithstanding the fact that the Respondent No.1 was actually
working as Project Director, ATMA, Ranga Reddy District, Hyderabad in the
Agriculture Department of the State of Telangana, at the time when the
State of Andhra Pradesh was bifurcated, the Respondent No.1 was allocated
to the State of Andhra Pradesh.
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47. The High Court found that the Respondent No.1 had continued to
work as Project Director, ATMA, Ranga Reddy District in the Agriculture
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Department on deputation, pursuant to the order dated 16 February 2016
of the High Court referred to hereinabove. The Respondent No.1 was
apparently repatriated from the post of Project Director, ATMA, Ranga
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Reddy District on 7 March, 2017, after which he made several
representations to the Special Chief Secretary, Animal Husbandry
Department, Government of Telangana that he be given posting. No
posting orders were, however, issued for over four and a half years and no
salary was paid to the Respondent No.1
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48. On or about 19 October, 2016, Smt. B. Shantabai, wife of the
Respondent No.1, who had earlier been working in Telangana but later
allocated to Andhra Pradesh in 2017, made a representation for transfer to
Telangana on mutual basis with one B. Geethavani, who was not interested
in continuing in Telengana in view of her husband’s condition of health. In
the said representation, she stated that she was willing to forego her
seniority and willing to take the last rank below the last regular Assistant
Registrar working in ZoneVI in the State of Telangana. It appears that the
State of Andhra Pradesh issued GOMs No. 51 Agriculture and Cooperation
th
(COOP.I) Department dated 12 June, 2017 according permission to
transfer Smt. B. Shantabai, wife of the Respondent No.1 to the State of
Telangana.
th
49. On and from 14 June 2017, Smt. B. Shantabai was posted as
Assistant Registrar in the office of the Commissioner for Cooperation and
19
Registrar of Cooperative Societies. The Respondent No.1 was however,
allocated to the State of Andhra Pradesh, ignoring his option for the State of
Telangana and in violation of the Guidelines issued vide G.O.Ms No. 312
th
dated 30 October 2014 and, in particular, Clause (1) of Para 18 set out
hereinbelow for convenience :
"Spouses in State cadre in Government or in State Government
institutions, local bodies and those who are deemed allocated as per
the Act, shall as far as practicable, be allotted to the same State,
after considering options made by them and their local candidature.
Spouses who are local candidates of a State shall be allocated to that
State. Spouses who belong to different States may be allocated after
considering their options. "
50. The allocation was also in contravention of the requirement of Clause
(f) of Paragraph 18 directing that allocation shall be done in order of
seniority as available. On behalf of the Respondent No.1, it was rightly
contended that the spouse of the Respondent No.1 who had been born and
educated in the State of Telangana had to be treated as a local candidate of
the State of Telangana. As a spouse, the Respondent No.1 ought to have
been allocated to the State of Telangana.
51. The High Court considered the Counter Affidavit filed by the State of
Telangana at length and found :
“ 28 . The State of Telangana and its Director of Animal
Husbandry who were impleaded as respondent nos.4 and 5 in
O.A.No.209 of 2016 / W.P. (TR) No.5482 of 2017 filed counter
affidavit / V.M.A.No.205 of 2016 in O.A.No.209 of 2016 (re
numbered as WVMP(TR).No.703 of 2017) to vacate the order
dt.29.01.2016 granted by it and dismiss the O.A. / W.P.
29 . In the said counteraffidavit, it is stated that petitioner's
wife had been appointed in Krishna District and promoted as
Assistant Registrar in ZoneII (Zonal Cadre Post), that her
seniority was also declared in the said Zone which falls in the
State of Andhra Pradesh and as per Section 77(2) of the A.P.
20
Reorganization Act, 2014 she has to work in the said State
only.
30 . Therefore, it is stated that petitioner cannot claim that his
wife is working in the State of Telangana and claim allotment
to the Telangana State on 'spouse' grounds.
31 . It is stated that petitioner belongs to the State of Andhra
Pradesh as per his local candidature and so he has been
allocated to the home State of Andhra Pradesh based on
availability of posts in the said State.
. It is however stated that petitioner's representation
32
regarding his provisional allocation to the State of Andhra
Pradesh and the local status of his wife were referred to the
Commissioner of Cooperatives and Registrar of Cooperative
Societies, Hyderabad and the latter vide
Lr.Roc.No.778/MINC/2014 dt.22.04.2015 informed that as on
that date petitioner's wife is working as Assistant Registrar in
the Office of Commissioner & Registrar of Cooperative
Societies, Andhra Pradesh at Hyderabad.
33 . It is admitted that petitioner while working as Joint
Director (Animal Husbandry) at District Project Office, Rajiv
Vidya Mission had submitted option form to the Animal
Husbandry Department exercising his option for the State of
Telangana as per preferential claim in terms of para 18(i) of the
option form and also enclosed details of his spouse, but his
request cannot be accepted, and the decision was taken in
accordance with the guidelines for final allocation.
34 . In W.P.No.24820 of 2017, the State of Telangana and the
Director of Animal Husbandry Department filed a counter
stating that as per para no. 18(i) of G.O.Ms.No.312
dt.30.10.2014, 'employees who are members of the Scheduled
Castes or the Scheduled Tribes shall be considered for allocation on
the basis of their option if they are local candidates' ; that
petitioner is a local candidate of Cuddapah District of Andhra
Pradesh State; and so, petitioner cannot contend that his
allocation to the State of A.P. is incorrect.
35 . It is admitted that petitioner's wife had joined in the State
of Telangana in 2017, but it is contended that petitioner falsely
pleaded that his wife was working in Telangana State at the
time of filing of O.A.No.209 of 2016 and the said plea is not
correct.
. It is stated that though petitioner obtained order on
36
16.02.2016 in W.P.No.4391 of 2016 that he should not be
relieved from his present place of work in the post of Project
Director, ATMA, Ranga Reddy District in the Agriculture
Department of the Telangana State, he was relieved because at
the time of reorganization of Districts in the State of
Telangana, the ATMA Scheme was merged with Farmer
Training Centers, etc. pursuant to a policy decision.”
21
52. The State of Andhra Pradesh did not file any counter affidavit in the
High Court. A counter affidavit has been filed on behalf of the Union of
India admitting that 14 posts of Joint Directors were allotted to the State of
Andhra Pradesh and 09 posts were allotted to the State of Telangana. The
number of allocable employees in the cadre of Joint Director were 27 more
than the sanctioned cadre strength. The excess allocable employees were
allocated between successor States on population ratio as per Guidelines.
The Respondent No.1 though local to the State of Andhra Pradesh had
opted for Telangana but he was allotted to the State of Andhra Pradesh as
per Paragraph 18(f) of the Guidelines, since there was no vacancy within
the filled posts in Telangana.
53. The Union of India contended that the request of the Respondent
No.1 for allocation to Telangana on the ground of his spouse being a local of
Telangana could also not be accepted as his spouse belonged to the zonal
cadre of Andhra Pradesh.
54. The High Court held :
“ . Para 18 of the said G.O. mentioned the
46
guidelines/principles which would be followed for the purpose
of allocation of employees.
47 . Clause (e) of Para 18 stated that 'State Service employees
who hold allocable posts shall he allocated after seeking option from
the employees indicating their preference to serve in either of the
successor States after taking their option into consideration.'
48 . Admittedly, petitioner gave his option for allocating him to
the State of Telangana on 07.03.2015.
49 . Admittedly, of the total 23 posts in the Animal Husbandry
Department of the composite State of Andhra Pradesh, 9 posts
were allocated to the State of Telangana and 14 posts were
allocated to the residuary State of Andhra Pradesh.
22
. Clause 18(c) of the guidelines states that allocable
50
employees shall be considered for allotment between the successor
State on the basis of seniority list as available on 01062014.
xxx xxx xxx
. The petitioner's position in the seniority list of Joint
53
Directors (clauseA) in the composite State of Andhra Pradesh
as on 02.06.2014 was Sl No.4.
.
54 . The three people who were senior to him by name
Tanikonda Damodar Naidu, Koneti Venkata Ramana,
M.Srinivasa Rao, who were local candidates of Andhra
Pradesh, opted for the State of Andhra Pradesh and were
allocated temporarily to the State of Andhra Pradesh as can be
seen from Notification dt. 12.06.2015 issued by the General
Administration (SR) Department of the Government of Andhra
Pradesh and also as per annexureI to the final allocation order
No.5(2)/2016 dt. 14.1.2016.
55 . Therefore, the petitioner is the senior most among persons
in the Cadre of Joint Director ClassA to opt for the State of
Telangana.
xxx xxx xxx
57 . Thereafter the latter part of subClause (f) of Clause 18
which says 'if allocable posts in that category remain, then, others
who have opted to the State may be allocated in order of seniority'
will come to the aid of the petitioner; and because he is the
senior most available person in the cadre of joint Director Class
A, his claim for allocation permanently to the State of
Telangana, would have primacy over the claims of all his
juniors in the said cadre.
. Instead of following the above procedure prescribed by
58
Clause (f) of Para 18, a strange interpretation was given in
para6 of its counter is adopted by the Union of India saying
'due to nonavailability of vacancy within the filled posts in
Telangana', petitioner, though he had opted for the State of
Telangana, had to be allocated to the State of Andhra Pradesh.
. This suggests that the Union of India gave no weight at all
59
to the seniority of the petitioner or to the fact that he was the
senior most person in the cadre of Joint Director ClassA to opt
for the State of Telangana, proceeded to fill up the vacancies
allocated to the State of Telangana by persons who are 'natives
of Telangana', and then took a stand that there are no
vacancies in Telangana State, where the petitioner can be
accommodated. This procedure is patently contrary to Para
18(f) of the Guidelines.
xxx xxx xxx
. In the counteraffidavit filed by the State of Andhra
62
Pradesh, in O.A.No.209 of 2016/V.M.A.No,398 of
2016/W.V.M.P.(TR) No.701 of 2017 in W.P. (TR) No.5482 of
23
2017 it is stated in para6(f) that the Commissioner, Registrar
of Cooperative Societies, Hyderabad had stated in
Lr.No.778/Misc/2014 dt.22.04.2015 that petitioner's spouse
was working as Assistant Registrar in his Office at Hyderabad.
Admittedly, the petitioner's spouse was initially appointed in
'nonlocal' category in ZoneII falling in the residuary State of
Andhra Pradesh, because she was a 'local candidate' to the
State of Telangana. She ultimately was posted on mutual
transfer to the State of Telangana in June, 2017.
63 . Therefore, the Union of India cannot harp on the
petitioner's wife's belonging to the Zonal cadre of the State of
Andhra Pradesh to deny petitioner's claiming for posting in the
State of Telangana on spouse grounds. The State of Telangana
cannot also contend that the petitioner incorrectly stated that
his spouse was working in the State of Telangana and that she
does not 'belong to the State of Telangana'.
xxx xxx xxx
65 . Therefore, the petitioner was entitled to be allocated to the
State of Telangana even on spouse ground and the Union of
India without taking note of the above facts erred in rejecting
petitioner's request for allocation to the State of Telangana even
on spouse ground.
xxx xxx xxx
. Also since the petitioner had studied Classes VIII to X in
68
Khammam District in the State of Telangana and he states that
upto postgraduation, he studies in the State of Telangana,
under Para 7 of the Presidential order, 1975, he is a local
candidate' of the State of Telangana only, but ignoring this fact
and simply taking note of his place of birth as Cuddapah in
Andhra Pradesh State, he was wrongly treated as a 'local
candidate' for the State of Andhra Pradesh. So even under
Clause (i) of para 18, petitioner is eligible to be allotted to the
State of Telangana.
xxx xxx xxx
75 . It is the contention of petitioner that the order No.5 (2) of
2016 dt.14.01.2016 permanently allocating the petitioner to the
State of Andhra Pradesh itself states in para no.2 thereof that it
would not come into effect in respect of any person who has
obtained 'stay order' from a Court of Law against his allocation
to any of the successor States till the time such stay order is
vacated; and since the order passed by the Division Bench on
16.02.2016 in Writ Petition No.4391 of 2016 directing the
petitioner not to be disturbed from his current posting is in the
nature of such 'stay order', the petitioner cannot be asked to
report to the State of Andhra Pradesh.
. We find force in the petitioner's contention and agree with
76
it.
24
. So the petitioner cannot be denied salary by the State of
77
Telangana from 8.3.2017 till date on the basis of the said
relieving order or the permanent allocation order
F.No.29/01/2016 SR(S) dt. 14.01.2016 (Order No.5(2)/2016)
Ministry of Personnel, PG & Pensions, Department of Personnel
and Training, Government of India.”
55. There is no infirmity in the well reasoned order of the High Court
which calls for interference of this Court in exercise of power under Article
136 of the Constitution of India. As argued by Ms. Mohana, jurisdiction
under Article 136 of the Constitution of India is discretionary. The
discretionary jurisdiction under Article 136 of the Constitution of Indian
should not ordinarily be exercised to interfere with an otherwise just and
reasonable order by recourse to hyper technicality upon a narrow, rigid and
pedantic interpretation of the guidelines.
56. Admittedly, at the time of bifurcation of the State of Andhra Pradesh,
the Petitioner was posted in an area which falls with Telangana. The
Petitioner was required to exercise an option, which he admittedly did. It is
not in dispute that 9 posts out of total 23 posts were allocated to the State
of Telangana and 14 to the State of Andhra Pradesh. As per guidelines,
st
allocable employees were to be considered on the basis of seniority as on 1
June 2014.
th
57. As found by the High Court, the Petitioner’s position was 4 in
st
seniority in the composite State of Andhra Pradesh as on 1 June 2014.
The 3 people, senior to him, were all local candidate of Andhra Pradesh,
who had opted for Andhra Pradesh. The Respondent No.1 was senior most
of the employees who opted for Telangana. The High Court found that the
Respondent No.1 had denied allocation to Telangana on a “strange
25
interpretation of Clause (f) of paragraph 18 of the Guidelines, giving no
weight to seniority. The High Court found on facts that no importance at
all had been given to the fact that the spouse of the Respondent No.1 was a
local of Telangana.
58. On a possible interpretation of the Guidelines read with the Andhra
Pradesh Public Employment Order 1975 and, in particular, paragraph 4
thereof, the High Court found that the Respondent No.1 was local
candidate of the State of Telangana. Admittedly, he studied from Class VIII
to X at Khammam which is in the State of Telangana. He thereafter did his
Bachelor of Veterinary Science and Animal Husbandry and Master of
Veterinary Science at the college of Veterinary Science, AP, Agricultural
University at Hyderabad. He studied in that institution for 7 years from
1985 to 1992 being the year in which he appeared in the qualifying
examination.
59. Under the Constitution, India is a Union of States. Every part of
every State is an integral and inseverable part of India. Admittedly, the
Respondent was born in India. He has his domicile in the territory of India.
7
As held by this Court in , under the
Dr. Pradeep Jain v. Union of India
Indian Constitution, there is only one domicile i.e. domicile of the country
and there is no separate domicile for a State.
60. The power to admit and include States into the Union under Article 2
of the Constitution, and to form new States and/or reorganize State, is in
its very nature of the power, wide and its exercise necessarily guided by
7 AIR 1984 SC 1420
26
political issues of considerable complexity, many of which may not be
judicially manageable.
61. Article 3, empowers Parliament to enact law and form a new State by
separation of territory from any State or by granting two or more States or
parts of States or by uniting any territory to a part of any State. The
principles relating to change of sovereignty in international law are not
applicable to reorganisation of the territory of the State under Article 3 of
the Constitution of India.
62. When such an adjustment or reorganisation of territory takes place,
the existing law as well as administrative orders in a particular territory
continue to be in force and continue to be binding upon the successor State
so long as they are not governed, changed or repudiated by the successor
State.
63. It is not in dispute that the respondent has his domicile in the
Territory of India and was born in the territory of India. Admittedly, he is a
citizen of this country. As a citizen of India, the respondent has a
fundamental right under Article 19(1)(e) to reside and settle in any part of
the territory of India.
64. Under Article 13 (2) of the Constitution of India prohibits the State
from making any law which takes away or infringes the rights conferred by
Part III of the Constitution of India and any law made in contravention of
Article 13(2), to the extent of the contravention would be void.
27
65. All statutes and all rules, regulations and byelaws framed by the
Government, which constitute law have to be construed harmoniously with
the fundamental rights guaranteed under PartIII of the Constitution of
India.
66. The Andhra Pradesh State Reorganisation Act, 2014 or any other
guidelines framed thereunder, including the guidelines circulated on
30.10.2014 cannot take away from citizens, the right to reside and settle in
any part of the country.
67. It is true that when a State is divided and the employees and officers
of the State Government have to be allotted to the two states, such
allocation has to be done on the basis of the Rules and Regulations and by
guidelines.
68. However, such rules, regulations and guidelines have to be construed
harmoniously with the fundamental rights guaranteed under the
Constitution of India. It is true that the respondent may have been born in
an area which now forms part of Andhra Pradesh and may have received a
substantial part of his education in areas which now form part of the State
of Andhra Pradesh. However, admittedly, he cleared all Board and
University examinations from areas within the State of Telangana. At the
time of bifurcation, he was posted in Hyderabad, which is now part of
Telangana.
69. The guidelines circulated on 30.10.2014 for allocation of employees
and officers to the States of Telangana and Andhra Pradesh are directory
and not inflexible. On a liberal interpretation of the guidelines in the light
28
of the philosophy of the Indian Constitution read with Andhra Pradesh
Public Employment Order, 1975, which was in force at the time of
bifurcation, and is applicable to the respondent even under the Guidelines
referred to above, the High Court rightly arrived at the conclusion that the
respondent was a local candidate of Telangana and was entitled to
allocation as per his seniority in terms of Paragraph 18(f) of the guidelines.
Furthermore, admittedly, the spouse of the respondent was a local
candidate of Telangana.
70. In our considered view, there is no infirmity in the impugned
judgment and order of the Division Bench of the High Court affirming the
judgment of the Single Bench.
71. The Special Leave Petitions are, accordingly, dismissed.
…..................................... J.
[INDIRA BANERJEE]
…..................................... J.
[V. RAMASUBRAMANIAN]
NEW DELHI;
SEPTEMBER 14, 2022
29