Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5141 OF 2002
P.V. Radha Krishna and others … Appellants
Versus
State of A.P. and others … Respondents
WITH
CIVIL APPEAL NO.5142 OF 2002
M. Bhaskar Reddy and others … Appellants
Versus
State of A.P. and others … Respondents
WITH
CIVIL APPEAL NO.5144 OF 2002
G. Jaya Prasad and others … Appellants
Versus
State of A.P. and others … Respondents
2
WITH
CIVIL APPEAL NO.2965 OF 2003
B. Venkat Reddy … Appellant
Versus
State of A.P. and others … Respondents
JUDGMENT
G.S. Singhvi, J.
1. The State of Andhra Pradesh comprises of three regions known as
Andhra area, Telangana area and Raylaseema area. At the time of
formation of the State in 1956, certain safeguards were envisaged for
Telangana area in the matters of development, employment opportunities
and educational facilities for the residents of that area. The legislature
enacted the Public Employment (Requirement as to Residence) Act, 1957
for providing employment opportunities for the residents of Telangana
area but the relevant provisions of that Act were declared unconstitutional
by this Court. In 1969, an agitation was launched by some political parties
demanding separate statehood for Telangana area on the ground that
people of that area were not getting their due in the matters of education,
government employment and economic development. In the backdrop of
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the agitation, a six-point formula was evolved which, among other things,
envisaged equitable employment opportunities and career prospects for
the people of different areas of the State by ensuring preferential
treatment to the local candidates. Subsequently, clarification dated
22.10.1973 was issued in which it was visualized that the State as a whole
may consist of five or six divisions and the twin cities of Hyderabad and
Secunderabad including the cantonment will be constituted into a separate
division. This is evident from paragraph 7 of the clarification, which reads
as under:
“7. In regard to the service the basic approach of the
formula is that the people of different areas should have
equitable employment and career prospects. The concepts of
local candidates and local areas are interrelated because local
candidates will be identified with reference to a local area. In
specifying any local areas it should not be necessary to go
below the level of district. For recruitment of Class IV posts
and posts of LDC and equivalent in district office, the district
will then be the local area. For other categories of posts it
would be desirable to group contiguous districts into divisions.
We, however, visualize that the State as a whole may consist
of five or six divisions, the twin cities including the
cantonment being constituted into a separate division.”
(emphasis added)
2. For giving effect to the six-point formula, Articles 371D and 371E
were inserted in the Constitution by the Constitution (Thirty-second
4
Amendment) Act, 1973. Clauses (1) and (10) of Article 371D read as
under:
(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 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.
(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.
3. In exercise of power under clause (1) of Article 371D, the President
made the Andhra Pradesh Employment (Organization of Local Cadres and
Regulation of Direct Recruitment) Order, 1975 (hereinafter referred to as
‘the Presidential Order’). The relevant provisions of the Presidential Order,
as amended from time to time, read as under:-
“2. INTERPRETATION: In this Order, unless the context
otherwise requires.
(a) `City of Hyderabad’ means the part of the State
comprising the territories specified in the First Schedule;
(b) xxxx xxxx xxxx
(c) `local area’ in relation to any local cadre, means the
local area specified in paragraph 6 for direct recruitment
to posts in such local cadre, and includes, in respect of
posts belonging to the category of Civil Assistant
5
Surgeons, the local area specified in sub-paragraph (5)
of paragraph (6) of this Order;
(d) to (g) xxxx xxxx xxxx
(h) `Schedule’ means a Schedule appended to this Order;
(i) `Special Office or Establishment’ means as Office or
Establishment notified as such by the Central Government;
(j) `Specified gazetted category’ means any gazetted
category specified in the Third Schedule and includes
any other gazetted category notified as such by Central
Government;
(l) `State-level office or institution’ means as office or
institution serving, or the jurisdiction of which extends
to the State as a whole and notified as such by the
Central Government;
(m) `Zone’ means a zone specified in the Second Schedule
comprising the territories mentioned therein;
3. Organization of local Cadres:- (1) xxx xxx xxx
(2) The posts belonging to the category of lower division
clerk and each of the other categories equivalent to or lower
than that of a lower division clerk in each department in each
district shall be organized into separate cadre.
Explanation:- For the purposes of this sub-paragraph, sub-
paragraph (1) of paragraph 6 and sub-paragraph (1) of
paragraph 8 a category shall be deemed to be equivalent to or
lower than that of a lower division clerk if the minimum of the
scale of pay of a post belonging to that category or where the
post carries a fixed pay such fixed pay is equal to or lower
than the minimum of the scale of pay of a lower division clerk.
(3) The posts belonging to each non-gazetted category,
other than those referred to in sub-paragraph (2), in each
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department in each zone shall be organized into a separate
cadre.
(4) The posts belonging to each specified gazetted category
in each department in each zone shall be organized into a
separate cadre.
(5) Notwithstanding anything contained in sub-paragraphs
(3) and (4), the State Government may where it considers it
expedient so to do and with the approval of the Central
Government, organize the posts belonging to any of the
categories referred to therein, in any department, or any
establishment thereof, in two or more contiguous zones into a
single cadre.
(6) Notwithstanding anything contained in sub-paragraphs
(2), (3), (4) and (5), the Central Government may notify the
departments in which and the categories of posts for which a
separate cadre has to be organized for the City of Hyderabad
and on such notification, the posts belonging to each such
category in each such department in the said City (other than
those concerned with the administration of areas falling
outside the said City) shall be organized into a separate cadre
and the posts so organized shall be excluded from the other
cadres, in pursuance of this paragraph or constituted
otherwise and comprising of posts belonging to that category
in that department.
5. Local Cadres and Transfer of Persons :-
(1) Each part of the State, for which a local cadre has been
organized 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.
(2) Nothing in this order shall prevent the State Government
from making provision for
7
(a) the transfer of a person from any local cadre to any
Office or Establishment to which this Order does not
apply, or Vice Versa.
(b) The transfer of a person from local cadre comprising
posts in any Office or Establishment exercising
territorial jurisdiction over a part of the State to any
other local cadre comprising posts in such part, or
Vice Versa.
(c) The transfer of a person from one local cadre to
another local cadre where no qualified or suitable
person is available in the latter cadre for where such
transfer is otherwise considered necessary in the
Public interest.
(d) The transfer of a person from one local cadre to
another local cadre on a reciprocal basis subject to
the condition that the persons so transferred shall
be assigned seniority in the latter cadre with
reference to the date of his transfer to that cadre.
(Vide G.O.Ms. No. 34, G.A. (SPF.A) Dept, dt.
24.01.1981)
6. Local Areas :- (1) Each district shall be regarded as a
local area.
(i) for direct recruitment to posts in any local
cadre under the State Government comprising all
or any of the posts in any department in that
district belonging to the category of a lower
division clerk or to any other category equivalent
to or lower than that of a lower division clerk.
(ii) For direct recruitment to posts in any cadre
under any local authority within that district,
carrying a scale of pay, the minimum of which
does not exceed the minimum of the scale of pay
of a lower division clerk or a fixed pay not
exceeding that amount.
8
(2) Each Zone shall be regarded as a local area.
(i) for direct recruitment to posts in any local
cadre under the State Government
comprising all or any of the posts in any
department in that zone belonging to any
non-gazetted category other than those
referred to in sub-paragraph (1)
(ii) for direct recruitment to posts in any local
cadre comprising all or any of the post in
any department in that zone belonging to
the categories of Tahsildars, Asstt.
Executive Engineers, Assistant Agricultural
Officers, Inspectors of Police and Motor
Vehicles Inspectors (Vide G.O.Ms. No. 498,
dated 16.7.1977 G.O.Ms. No. 34, dt.
24.01.1981 and G.O.Ms. No. 635, (SPF.A)
Dept. dated 30.11.1993).
(iii) for direct recruitment to posts in any cadre
under any local authority within that zone,
carrying a scale of pay, the minimum of
which exceeds the clerk but does not
exceed Rs.480/- per mensem or a fixed pay
which exceeds the minimum of the scale of
pay of a lower division clerk but does not
exceed Rs.480/- per mensem or any
amount corresponding to it as may be
specified in this regard in the successive
revisions of pay scales granted by the State
Government from time to time. (G.O.Ms.
No. 635, G.A. (SFF.A) Dept. dated
30.11.1993).
Provided that where a single cadre has been
organized for two or more zones under sub-
paragraph (5) of paragraph 3 of posts belonging
to any of the categories referred to in clause (i)
or clause (ii) each of such zones shall be
9
regarded as separate local area in respect of such
cadre.
(3) Notwithstanding anything contained in sub-paragraphs
(1) and (2)
(i) the City of Hyderabad shall be regarded as
a local area for direct recruitment to posts
in any local cadre under the State
Government comprising all or any of the
Posts in the said City in the departments
and belonging to the categories notified
under Sub-paragraph (6) of paragraph 3
and the said City shall be excluded from
the local area relatable to any other local
cadre comprising posts in the departments
and belonging to the categories so notified,
and
(ii) the City of Hyderabad shall be regarded as
a local area for direct recruitment to posts
in any cadre under a local authority within
the said City comprising posts carrying a
scale of pay the minimum of which does
not exceed Rs.480/- per mensum or any
amount corresponding to it as may be
specified in this regard in the successive
revisions of pay scales granted by the State
Government from time to time or a fixed
pay not exceeding that amount, and the
said City shall be excluded from the local
area relatable to any cadre under any local
authority not within the said City. (G.O.Ms.
No. 635, G.A. (SPF.A) Dept. dated
30.11.1993).
10. Power to Authorise issue of Directions:- (1) The
President, may, by order, require the State Government to
issue such directions as may be necessary or expedient for
the purpose of giving effect to this Order to any local
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authority and such local authority shall comply with such
directions.
(2) The State Government may, for the purpose of issuing any
direction under sub-paragraph (1) or for satisfying itself that
any directions issued under sub-paragraph (1) have been
complied with require by order in writing any local authority to
furnish them such information, report of particulars as may be
specified in the order and such local authority shall comply
with such order.
11. Order to have over-riding effect:- The provision of this
order shall have effect notwithstanding anything contained in
any Statute, Ordinance, rule, regulation or other order made
before or after the commencement of this Order in respect of
direct recruitment to posts under the State Government or
any local authority.
14. Saving:- Nothing in this Order shall apply to:-
(a)any post in the Secretariat of the State Government,
(b)any post in an office of the Head of a Deptt.,
(c) any post in a Special Office or Establishment.
(d) any post in a State-level office or Institution.
(e) any post other than a post belonging to any of the non-
gazetted categories in the ministerial and technical services
in a Major Development Project; (G.O.Ms. No. 455, G.A.
(SPF.A) Dept., dated 3.10.1985 and
(f) any post Police Officer as defined in clause (b) of Section 3
of the Hyderabad City Police Act, 1348 F.
THE FIRST SCHEDULE
[See paragraph 2(1)(a) City of Hyderabad]
(a) Hyderabad Municipal
Corporation area:
(i)
Hyderabad
Division
(ii)
Secunderabad
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Division
(b) Secunderabad
Cantonment area
(c) Osmania University Campus
(d) Zamistanpur Village
(e) Fatehnagar Panchayat area
(f) Bowenpalle Panchayat area
(g) Machabolaram Panchayat area
(h) Lalaguda Village Village
(i) Malkajgiri Panchayat area
(j) Uppal Khalsa Panchayat area
(k) Alwal Panchayat area
(l) Balanagar Panchayat area
(m) Musapet Panchayat area
(n) Kukatpalli Panchayat area
THE SECOND SCHEDULE
[See paragraphs 2(1)(m) and 8(4)]
ZONES RATIO
Zone I Srikakulam, Vizianagaram
st
(1 day of June, 1979)
Visakhapatnam Districts.
12
Zone II East Godavari, West
Godavari and Krishna
Districts.
18
Zone III Guntur, Prakasam and
Nellore Districts.
15
Zone IV Chittoor, Cuddapah,
Ananthapur and Kurnool
Districts.
18
Zone V Adilabad, Karimnagar,
Warangal and Khammam
Districts.
15
Zone VI Hyderabad, Rangareddy 22
12
th
(15 August, 1978),
Nizamabad,
Mahboobnagar, Medak and
Nalgonda Districts.
4. In pursuance of paragraph 3(6) of the Presidential Order, the
Government of India issued notification, GSR No.528E dated 20.10.1975
and notified the departments in which and categories of posts for which
separate cadres were required to be organized for the city of Hyderabad.
These were the Department of Public Health and Municipal Engineering,
Indian Medicines and Homeopathy, Fire Services, Jail, Judiciary,
Commercial Tax, Education, Employment and Training Development
(Training Wing), National Cadet Corps, Technical Education, Weights and
Measures, Labour, Treasuries and Accounts. The post of Police Officer as
defined in Section 3(b) of the Hyderabad City Police Act 1348 Fasli (for
short ‘the Hyderabad Act’) was not included in that notification because
the same had been excluded from the purview of the Presidential Order by
virtue of paragraph 14(f) thereof. Thereafter, the Government of India
issued instructions vide order dated 1.11.1975 for organization of the local
cadres and allotment of persons to such cadres. Paragraph 8 of that
order by which certain departments and posts were excluded from its
purview reads thus:-
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8. Departments and posts excluded from the
purview of the Order – It should be carefully noted that
certain posts are altogether excluded from the application of
the provisions of the Presidential Order. By virtue of
paragraph 14 of the Order, posts in the Secretariat, Offices of
the Heads of Departments, State level Offices/Institutions,
Major Development Projects and Special Offices or
establishments and posts of Police Officers as defined in
clause (b) of Section 3 of the Hyderabad City Police Act, (1348
F) are excluded. The lists of State Level Offices/Institutions,
Major Development Projects and Special
Offices/establishments have been notified in G.O.I. notification
G.S.R. Nos.527(E), 525 (E) and 526 (E) respectively, dated
th
18 October, 1975. As already indicated, non-gazetted
categories of posts exempted by the notification G.S.R.
th
No.529(E), dated 18 October, 1975 issued under paragraph
3(8) of the order are also excluded from the local cadres.
Therefore, departments which consist exclusively of posts of
the nature or belongs to categories referred to above
automatically get excluded from the scheme of localization.
The departments lists in the Annexure to this order will be
covered by the scheme.
(emphasis supplied)
5. On the same day i.e., 1.11.1975, the Government of Andhra
Pradesh issued G.O. Nos.729 and 730. In G.O. No.729, it was emphasized
that the main purpose of the Presidential Order was to ensure that major
share of vacancies arising in certain categories of posts should be reserved
for being filled from among the local candidates. However, in paragraphs
5 and 21 it was made clear that reservation in the matter of direct
recruitment in favour of local candidates do not apply to the posts
14
specified in paragraph 14(f) of the Presidential Order. For the sake of
convenience, these paragraphs are extracted below:
“ 5 . The provisions, of order regarding reservations in the
matter of direct recruitment in favour of local candidates do
not, however, apply to the posts specified in para 14 of the
Order, viz., posts in the Secretariat in the offices of the Head
of Departments, in the Special Offices/Establishments notified
by the Central Government in G.S.R. No.526(E), dated
18.10.1975, in the State Level Offices/Institutions notified by
the Central Government in G.S.R. No.527(E), dated
18.10.1975, in the Major Development Projects notified by the
Central Government in G.S.R. No.525(E) dated 18.10.1975
and posts of police officers as defined in clause (b) of section
3 of the Hyderabad City Police Act, 1348 Fasli.
21 . Recruitment of posts in Secretariat. Offices of Heads of
Departments, etc – As indicated earlier the scheme of
reservation in favour of local candidates will not apply to posts
in the secretariat, office of Heads of Department, and State-
Level offices/institutions notified in G.S.R. No.527(E), dated
18.10.1975. Direct recruitment to fill posts in these offices
will be on a state wide basis. The scheme of reservation in
favour of local candidates will not also apply to the posts in
special offices/establishments notified in G.S.R. No.526(E),
dated 18.10.1975. It is the Governments intention that such
offices and establishments should as far as possible cease to
be separate units of appointment and that posts in such
offices and establishment should not ordinarily be filled by
direct recruitment, but by drawing persons on tenure from
different local cadres on an equitable basis. The scheme of
reservation does not apply to posts in Major Development
Projects notified in G.S.R. No.525(E), dated 18.10.1975. Here
also it is the intention of the State Government that the posts
in such projects should be largely filled by drawing persons on
transfer or tenure equitably from different local cadres.
Where however, any direct recruitment becomes essential it
will be done on a state wide basis.”
(emphasis supplied)
15
6. In paragraph 2 of G.O. Ms. No.730, the aforesaid provision was
reiterated in the following words:
“ 2 . The Presidential Order requires that certain categories
of posts shall be organized into appropriate local cadres.
These include all non-Gazetted categories of [posts other
than those exempted by virtue of the notification issued
under para-3(8) of the Order – vide Government of India,
Ministry of Home Affairs, GSR 529(E), dated 18.10.1975]
and the posts belonging to the specified gazetted
categories: however, the posts for which the unit of
appointment is confined to the Secretariat and the Offices
of the Heads of Departments, State level
Offices/Institutions, Special Offices/Establishments and
Major Development Projects and posts of Police Officers as
defined in the Hyderabad City Police Act, 1348 F, are
excluded…..”
7. After about seven months, the State Government issued G.O. Ms.
No.795 dated 30.6.1976 whereby scheme for organization of local cadres
for the non-gazetted categories of posts (both Executive and Ministerial)
and other posts equivalent to or lower than LDCs was formulated and
circulated. The said scheme was finalized in consultation with the
Allotment Committee constituted under G.O. Ms. No.74 dated 15.11.1995.
As far as the police department is concerned, the scheme of organization
of local cadres excluded some of the offices and posts including the post of
Police Officer as defined in clause (b) of Section 3 of the Hyderabad Act.
While creating new Police Ranges vide G.O. Ms. No.1697 dated
16
10.12.1975, which were shown in Annexure – 1 appended to G.O. Ms.
No.795, Hyderabad, Secunderabad and other areas mentioned in First
Schedule to the Presidential Order were separately identified as City
Range. All this is evident from paragraphs 3, 4, 16 and Annexure – 1
appended to G.O. Ms. No.795, the relevant portions of which are
reproduced below:
“(3) The following offices of the Police Department are outside
the purview of the Andhra Pradesh Public Employment
(Organisation of Local Cadres and Regulation of Direct
Recruitment) Order, 1975 for the reasons given against
them:-
Name of Office Reasons for exemption
1. Office of the Inspector
General of Police
Being office of the Head
of the Department.
2. Railway Police Being Special Office or
Establishment vide
Notification No. GSR
526(E) dated
18.10.1975.
3. Police Communications
Organization
4. Police Training College,
Anentpur
5. Office of the Deputy
Inspector General of
Police, Railways, Crime
and Training, Hyderabad
Being the State level
offices of Institution,
vide Notification No.
GSR (E) dated 18.10.75
6. Office of the Deputy
17
Inspector General of
Police, Railways, Crime
and Training, Hyderabad.
7. Police Transport
Organization
8. Office of the Director of
Police Communications
9. Office of the Director of
Forensic Science
Laboratory, Hyderabad
10. All categories of posts in
the Special Police
Battalions including
Special Armed Police,
Amberpet other than
Ministerial categories
Being exempted
categories vide
Notification No. GSR
529(E) dated
18.10.1975
11. Any post of Police Officer
as defined in clause (b)
of Section 3 of the
Hyderabad City Police
Act, 1348-F.
Vide para 14(f) of the
Presidential Order
(4) Thus, the Presidential Order dated 18.10.1975 will apply
to the remaining offices of the Police Department as given
below -
1. Officers of the six Police Ranges
(viz. Northern, Eastern, Central
Southern, Warangal and Hyderabad)
2. Ministerial staff of the office of the
Commissioner of Police, Hyderabad
3. Ministerial Staff of the Special Police
Battalions including Special Armed Police
18
4. Ministerial staff of the District Police Office
5. District Police i.e. Regular Police Force
(16). As no separate cadre for the City of Hyderabad needs to
be organized for the Police Department, the Ministerial staff of
the office of the Commissioner of Police alone will be included
in zone VI. However, it will be treated as a separate cadre in
that zone, the other cadre being the staff under the
jurisdiction of Deputy Inspector General of Police, Hyderabad
Range.
ANNEXURE – 1
New Police Ranges as per Police Ranges prior to the
the order issued in G.O. Ms issue of orders issued in
No.1697, Home dated 10.12.1975 G.O. Ms No.1697, Home
dated 10.12.1975
ZONE–1 Northern Range
Head-quarters at
Vishakahpatnam
1. Srikakulam
2. Vishakhapatnam
ZONE–II Eastern Range
Headquarters at
Eluru
1. East Godavari 1. Srikakulam
2. West Godavari 2. Visakhapatnam
3. Krishna 3. East Godavari
4. West Godavari
ZONE–III Central Range
Headquarters at
Guntur
1. Guntur 1. Krishna
19
2. Nellore 2. Guntur
3. Prakasam 3. Nellore
4. Prakasam
ZONE–IV Southern Range
Headquarters at
Kurnool
1. Chittor 1. Chittor
2. Cuddapah 2. Cuddapah
3. Anantapur 3. Anantapur
4. Kurnool 4. Kurnool
ZONE–V Warrangal Range
Headquarters at
Warangal
1. Adilabad 1. Adilabad
2. Karimanagar 2. Karimanagar
3. Warangal 3. Warangal
4. Kahmmam 4. Kahmmam
5. Nalgonda
ZONE–VI Hyderabad Range
Headquarters at
Hyderabad
1. Hyderabad 1. Hyderabad
2. Nizamabad 2. Nizamabad
3. Mahaboobnagar 3. Mababoobnagar
4. Medak 4. Medak
5. Nalgonda
City Range
20
Hyderabad and Secunderabad 1. Hyderabad
and other areas as mentioned in
First Schedule to the Presidential 2. Secunderabad
Order ”
8. The posts of Hyderabad City Police were not shown in Annexures IV,
V, XII and XIII appended to G.O. Ms. No.795, which contained statements
showing the cadre strength of localized cadres in respect of the posts of
Constable, Head Constable, Sub-Inspector and Inspector. The relevant
portions of those Annexures are extracted below:
Annexure IV
Point No.3 – 40 (34 permanent and 6 temporary)
posts of S.B., C.I.D., Hyd. and 11 (10 permanent and 1
temporary) posts of C.B.CID attached to the City Police are
not shown in the statement as the City Police is not localized.
Annexure V
Point No.3 – 16 (11 permanent and 5 temporary) posts of
S.B. and 13 (12 permanent and 1 temporary) posts of Crime
Branch, C.I.D. are not shown in the statement as the City
Police is not localized.
Annexure XII
Point No.1 – Includes posts of Int., CB & RP. distributed to
all units. But the posts distributed to the City Police are not
shown in the statement as City Police is not localized.
Annexure XIII
21
Point No.1 – The posts of CID attached to the City are not
shown in the statement as City Police is not localized.
9. At this stage, we may notice Sections 3(b), 4 and 7 of the
Hyderabad Act and Sections 2(b), (c), 3 and 4 of the Andhra Pradesh
Members of Police Force (Regulation of Transfers) Act, 1985 (hereinafter
referred to as ‘the 1985 Act’).
The Hyderabad Act
“3(b) “Police Officer” shall be deemed to include every
member of the City Police Force appointed under this Act and
shall also include the Commissioner of City Police, Hyderabad,
Deputy or Assistant Commissioner of Police, and subject to
the provisions of sub-section (2) of Section 9 and Sub-Section
(2) of Section 10 shall also include every person who has been
appointed as an additional or special Police Officer.”
4. ORGANIZATION OF POLICE – For the City of
Hyderabad there shall be appointed a Police force and its
strength and constitution shall be as may be prescribed in
accordance with the orders of the Government issued in this
behalf, from time to time.”
7. POWERS OF APPOINTMENT AND PROMOTION – (1)
The powers to appoint and promote an Inspector, Sub-
Inspector and other subordinate of the force shall vest in the
Commissioner of City Police, Hyderabad. The Government
shall have the power to appoint the Deputy Commissioner
and, Assistant Commissioner of Police.
(2) Powers of dismissal, discharge, demotion,
suspension, fine and punishment .– The (Commissioner of
City Police, Hyderabad) may, subject to such rules and
regulations, as the Government may, from time to time,
22
promulgate in this behalf, except Deputy Commissioner and
Assistant Commissioner of Police––
(a) dismiss, discharge, demote, suspend or fine to extent of
half the salary, any member of the Police force when
any member of the force commits, neglects or fails to
perform duties or contravenes the provisions of this Act
or of the rules made thereunder or commits gross
misconduct during leave;
(b) impose the punishment of attendance in a Police Station
for a period not exceeding three days upon a member
of the force inferior in rank to that of a Head Constable,
who in his presence commits a gross wrong or behaves
insolently and insubordinately.
(3) Nothing contained in sub-section (2) shall effect any
criminal proceeding by which any criminal liability or
charge is established for an offence against any Police
Officer.”
The 1985 Act
“2(b) ‘police force’ means the police force constituted under
the Hyderabad City Police Act, 1348 F., the Andhra Pradesh
(Andhra Area) District Police Act, 1859 and the Andhra
Pradesh (Telangana Area) District Police Act, 1329 F, or any
other law relating to police force.
(c) ‘prescribed’ means prescribed by rules made under this
Act.
3. Regulation of transfer of members of police
force :- (1) Notwithstanding anything in any law for time
being in force, a member of the police force shall be liable to
serve in any part of the State of Andhra Pradesh.
(2) The Government may make rules for the regulation of
transfer of members of police force from one part of the State
to another part within the State of Andhra Pradesh by such
authority as may be prescribed.
23
4. Power to make rules :- (1) The Government may, by
notification in the Andhra Pradesh Gazette, make rules to
carry out the purposes of this Act.
(2) Every rule made under this Act shall, immediately after
it is made, be laid before each House of the State Legislature
if it is in session and if it is not in session immediately
following for a total period of fourteen days which may be
comprised in one session or in two successive sessions, and if,
before the expiration of the session in which it is so laid or the
session immediately following both Houses agree in making
any modification in the rule or in the annulment of the rule,
the rule shall from the date on which the modification or
annulment is notified in the Andhra Pradesh Gazette, have
effect only in such modified form or shall stand annulled, as
the case may be; so however, that any such modification or
annulment shall be without prejudice to the validity of
anything previously done under that rule.”
10. Before enactment of the 1985 Act, the Governor of the State had,
in exercise of the powers conferred upon him by Sections 8 and 10 of the
Madras District Police Act, 1859, Section 6 of the Hyderabad District Police
Act 1329 Fasli and Section 7 of the Hyderabad Act read with proviso to
Article 309 of the Constitution of India made the Special Rules for Andhra
Pradesh Police Subordinate Service. These rules were published by G.O.
Ms. No.1263, G.A. (Rules) Dept., dated 26.8.1959. In exercise of the
powers conferred upon it under Section 3(2) of the 1985 Act, the State
Government framed rules for regulating transfer of the members of the
police force. Those rules were circulated by G.O.Ms. No.288 Home
24
(Police-C) Department dated 6.5.1986. In 1999, the Governor framed
another set of Special Rules for A.P. Police (Civil) Subordinate Services.
The same were issued vide G.O. Ms. No.374 Home (Police. C) dated
14.12.1999.
Pre-Presidential Order Litigation
11. Shri D. Ram Reddy and Shri T. Ram Reddy, who were recruited as
Head Constable and Constable respectively in the Hyderabad City Police
filed Writ Petition No.1643/1973 questioning their transfers to Khammam
and Nalgonda districts respectively by the Commissioner of Police,
Hyderabad on the ground that being members of Hyderabad City Police
force, they could not be transferred outside the twin cities of Hyderabad
and Secunderabad. The Inspector General of Police, Andhra Pradesh and
Commissioner of Police, Hyderabad, who were impleaded as respondents
opposed the prayers of the petitioners by contending that the petitioners
are governed by the provisions of the Andhra Pradesh Police Subordinate
Rules and, as such, they are liable to be transferred and posted anywhere
in the State of Andhra Pradesh. The learned Single Judge referred to the
provisions of Article 309 of the Constitution, the Andhra Pradesh
(Telangana Area) District Police Act 1329 (Fasli), which was extended to
whole of the Telangana area except the city of Hyderabad, Section 7 of
25
the Hyderabad Act and held that in view of the provisions contained in the
latter enactment, the rules framed under proviso to Article 309, insofar as
the same affected the conditions of service of the Police Officers appointed
in Hyderabad City Police are ineffective. Accordingly, transfer of the writ
petitioner outside the limits of twin city was declared illegal and quashed.
12. The respondents in the writ petition challenged the order of the
learned Single Judge in Writ Appeal No.890/1975. The Division Bench
referred to the Presidential Order and held:
“The Hyderabad City Police force comes under Article 371-D
of the Constitution which is a special provision made for the
state of Andhra Pradesh. Under Article 371-D with respect to
the State of Andhra Pradesh, the President of India issued
some rules as to the requirements of the State as a whole, for
equitable opportunities and facilities for the people belonging
to different parts of the State, in the matter of public
employment and in the matter of education and different
provisions for various parts of the State. Clause 10 of Article
371-D states that the provisions of this Article and of any
order made by the President thereunder shall have effect not
with standing anything in any other provision of the
Constitution or in any other law for the time being in force.
Therefore special provisions have been made in the case of
Andhra Pradesh State in regard to public employment
organisation of local cadres and regulation of direct
recruitment. That order stipulating the above provisions, will
take precedence over the provisions of Articles 309 and 313 of
the Constitution. The Presidential Order which we have
referred to above in clause (5) provides for local cadres and
transfer of persons. Clause (1) of Section 5 states that for
each part of the state, for which a local cadre has been
organized in respect of any category of posts, shall be a
26
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. Sub-clause 2 of Section 5
states that nothing in this order shall prevent the state
Government from making provision for the transfer of person
from any local cadre to any office or establishment to which
this order does not apply or vice-versa. Clause 14 of the
order mentions special saving provisions and under Sub-
Clause (f) of clause 14 any post of police officer as defined in
clause (b) of section 3 of the Hyderabad City Police Act 1348 F
is excluded.
In view of the provisions of clause 14(f), it is obvious
that it is not open to the State Government to make rules
providing transfer of persons from Hyderabad City Police
Force to any other area or any other police force. On this
ground alone the impugned order must be set aside apart
from the ground which appealed to our brother Muktadar, J.”
(emphasis supplied)
Post-Presidential Order Litigation
13. Twenty two Sub-Inspectors of Hyderabad City Police challenged the
transfers of 89 Sub-Inspectors and Inspectors of different districts to the
City of Hyderabad by filing an application before the Andhra Pradesh
Administrative Tribunal (for short ‘the Tribunal’), which was registered as
R.P. No.1220/1977. The Tribunal relied upon the orders passed by the
learned Single Judge and the Division Bench of the High Court in Writ
Petition No.1643/1973 and Writ Appeal No.890/1975 respectively, referred
to the provisions of the Hyderabad Act and quashed the transfers of the
27
officers belonging to different districts to the Hyderabad City Police with a
direction that they be sent back to their respective districts and the
consequential vacancies be filled from the officers of the City Police.
14. Another batch of cases was filed by the members of the Hyderabad
City Police before the Tribunal questioning the validity of the 1985 Act and
transfer of the Police Officers from other zonal cadres to Hyderabad City
Police. The same were registered as O.A. Nos.22622-22635/1990, R.P.
Nos.22126-22130/1989, 4761/1988, 4878/1988, 4879/1988 and
1567/1989. The Full Bench of the Tribunal made a reference to the orders
passed by the learned Single Judge in W.P. No.1643/1973 and by the
Division Bench in Writ Appeal No.890/1975 as also order dated 18.7.1988
passed by the Tribunal in R.P. No.1220/1977 and observed that the 1985
Act was passed to overcome the orders passed by the High Court and
Tribunal. The Full Bench of the Tribunal then noted that rules for
regulating transfer of members of police force from one part of the State
to another were framed by the government in exercise of powers under
paragraph 5(2) of the Presidential Order read with Sections 3(2) and 4(1)
of the 1985 Act and also that by the time the 1985 Act and rules were
framed, government had made several provisions with reference to
28
paragraph 5(2) of the Presidential Order and recorded the following
conclusions:
a) The Act and Rules do not violate Presidential Order in
so far as a transfer is from a post saved under para 14 of the
Presidential Order to another post saved under para 14 of a
person not included in any local cadre under the Presidential
Order.
b) The impugned Act and the Rules are not effective for
making transfer in respect of local cadres i.e. either inter-
cadre or from or to posts in the cadre to and from posts saved
under para 14 of the Presidential Order, and for which
provision is to be made by the Government in various clauses
of 5(2) or of persons included in any local cadre under
Presidential Order.
c) It is open for the Government to make any further or
other provision as contemplated by 5(2).
It is made clear that we have examined the question of
transfer from the city police to another local cadre on a
permanent basis. We have not examined transfers of police
officers bonafide in public interest in exigencies of services for
short periods without affecting their continuance and position
in their local cadre or effecting their seniority in the local
cadre to which they are now transferred for leveled by the
Head of Department viz., DGP of Police.
Recruitment of the appellants and particulars of some other
advertisements
15. The appellants were appointed as Sub-Inspectors of Police in
Hyderabad City. Their selection was preceded by an advertisement issued
by the Public Service Commission for recruitment to various posts including
Sub-Inspectors of Police. Out of 143 posts of Sub-Inspectors of Police, 93
29
were earmarked for Hyderabad City, which was described as Zone VII.
Thirteen vacancies were reserved to be filled in by transfer from police
ministerial staff. In that category also nine vacancies were shown for
Zone VII. In the same advertisement, the posts of Assistant Commercial
Tax Officers were shown for Hyderabad I (2) and Hyderabad II (4) falling
in Zone VI. The advertisement also specified the area of Hyderabad City
(Zone VII) as comprising the following:
(a) Hyderabad Municipal Corporation Area -
(i) Hyderabad Division
(ii) Secunderabad Division
(b) Secunderabad Cantonment Area
(c) Usmania University Campus
(d) Zamastanpur village Panchayat Area
(e) Fatehnagar Panchayat Area
(f) Bowenpalle Panchayat Area
(g) Machabolaram Panchayat Area
(h) Lalgura village Panchayat Area
(i) Malkagiri Panchayat Area
(j) Uppalkalasa Panchayat Area
(k) Alwal Panchayat Area
(l) Alanagar Panchayat Area
(m) Moosapet Panchayat Area
(n) Kukatpalle Panchayat Area
30
16. After completion of the process of selection, the Secretary of the
Commission issued Memos dated 29.5.1985 whereby the appellants were
informed about their selection and allotment to Zone VII i.e., Hyderabad
City. For the sake of reference, memo issued to one of the appellants is
reproduced below:-
“ANDHRA PRADESH PUBLIC SERVICE COMMISSION
MEMO NO.23490/J8/85 dated 29.5.1985
Sub. Recruitment (Direct) Group II – Andhra Pradesh
Services 1983-84 – Allotment of selected candidates to the
Department – Intimation to the selected candidates –
Reg.
Ref. His application.
Sri Pantala Venkata Radha Krishna is informed that on
the basis of the results of the competitive examination and
oral test conducted by the Commission for recruitment to
posts included in Group II Andhra Pradesh Services 1983-84
he/she has been selected and allotted as Sub Inspector of
Police (Civil) in Zone VII Hyderabad City.
“The selection is subject to the results of the Writ
Appeal regarding weightage marks to Telugu Medium
candidates pending before the Supreme Court.”
He may await communication from the Unit Officer i.e.
Director General of Police, A.P., Hyderabad.
Sd/-
Sd/- Abdul Kareem Khan, IAS,
Secretary
31
/f.b.o/
Asst. Secretary
To
Sri Pantala Venkata Radha Krishna
_________________”
17. Thereafter, the Commissioner of Police in exercise of the power
vested in him under Rule 2(a) and Annexure-I of the Special Rules for the
Andhra Pradesh Subordinate Service issued orders for appointment of the
appellants as Sub-Inspectors of Police. For the sake of reference, the
order of appointment of one of the appellants, namely, P.V. Radha
Krishna, is reproduced below:
“GOVT. OF ANDHRA PRADESH:
Office of the
Commissioner of Police.
Hyderabad-A.P.
th
Dated 9 Sept. 1985
D.O. No. 3817
No. L&O/E2/3723/85
O R D E R:
Sub: Police – Sub-Inspectors (Civil) – Appointment of –
Orders – Regarding.
_________
In exercise of the powers vested in me under Rule 2(a)
and Annexure – I of the Special Rules for the Andhra Pradesh
32
Police Subordinate Service Sri Patnala Venkata Radha Krishna
s/o. Patnala Narayana Rao is appointed on probation as Sub-
Inspector of Police (Civil) in the time scale of pay of Rs.575-
20-775-25-950 subject to the condition that his services are
liable to be terminated at any time before the declaration of
his probation under General Rule 24(a) or 25(c) of the Andhra
Pradesh State and Subordinate Service Rules with one
month’s notice or with one month’s pay in lieu thereof. He
will be on probation from the date of joining the Police
Training College for a continuous period of 2 years and 7
months on duty or a total period of 3 years on duty. He will
be governed by the provisions of the Special Rules for the
Andhra Pradesh Police Subordinate Service.
He will under go a course of training for a period of one
year in the Police Training College, Anantapur followed by
practical training for one year and 7 months including
independent charge of a Police Station, for not less than one
year. During the period of training he will be paid the
minimum of the time scale of pay i.e., Rs.575-00 p.m. plus the
allowances admissible thereon.
The training will commence from 12.9.1985 at the
Police Training College, Anantpur. He should deposit a sum of
Rs.300-00 (Rupees three hundred only) at the time of joining
the Training College towards Mess and Uniform charges and
execute a bond of security.
He is informed that if his mother tongue is not Telugu
or if he has not taken Telugu as Second Language in SSC or
equivalent examination or any higher examination he shall
qualify himself by passing the Second Class Language test in
Telugu conducted by the Andhra Pradesh Public Service
Commission.”
18. In 1991, advertisement Rc.No.419/R&T Admn 1/90 dated 14.2.1991
was issued for recruitment of Civil Sub-Inspectors (Man) and Reserve Sub-
33
Inspectors (Man) in different zones which were identified with the
respective ranges. In that advertisement, 80 vacancies of Civil Sub-
Inspector (Man) and 26 vacancies of Reserve Sub-Inspector (Man) were
shown as earmarked for Hyderabad City Police Range, which was also
described as Zone VII (free zone). In 1994 also, an advertisement was
issued for recruitment of 435 Sub-Inspectors Civil/Intelligence (Man). In
that advertisement 74 vacancies were shown as earmarked for Zone VII
i.e., Hyderabad City (free zone). Similar advertisements were issued after
1975 for recruitment to various posts enumerated in paragraph 14(f) of
the Presidential Order.
Genesis of the present litigation
19. In view of order dated 20.10.1984 passed by the Tribunal in O.A.
Nos.22622-22635/1990 and connected matters, the State Government
issued G.O. Ms. No.349 Home (Police. C) Department dated 15.12.1997
whereby the private respondents who were then working as Inspectors of
Police in Hyderabad City Police (City Range), were transferred
back/repatriated to their parent cadres in other police ranges specified in
G.O. Ms. No.1697, Home dated 10.12.1975 and G.O. Ms. No.795 dated
30.6.1976. The private respondents challenged G.O. Ms. No.349 in O.A.
Nos.7579/1998, 8430/1998, 8431/1998, 8534/1998, 58/2001 and
34
2139/2001. They pleaded that their transfer to Hyderabad City Police had
been effected in accordance with the provisions of the 1985 Act and rules
framed there under and in public interest and the Government’s action to
transfer them back to the ranges in which they were initially appointed is
ex facie illegal, arbitrary and unjustified. They further pleaded that the
order passed by the Full Bench of the Tribunal cannot be invoked for
effecting their repatriation to the parent cadres because they were not
parties in O.A. Nos.22622-22635/1990 and connected matters. Another
plea taken by the private respondents was that the impugned G.O. is liable
to be declared arbitrary and discriminatory because while some of those
who were transferred to Hyderabad City Police have been repatriated,
others have been retained.
20. In the counter affidavits filed on behalf of the official respondents
before the Tribunal, it was specifically averred that the applicants in O.As.
were appointed in districts other than Hyderabad City Police and were
promoted as Inspectors in their respective parent units as per seniority in
their respective ranges and they cannot claim continuance in Hyderabad
City Police. It was then pleaded that the applicants were transferred to
Hyderabad City Police by the Director General and Inspector General of
Police, Andhra Pradesh in exercise of the powers conferred upon him by
35
G.O. No.288 dated 6.5.1986 but their seniority is being maintained in their
respective police ranges and none has been assigned seniority in
Hyderabad City Police. According to the official respondents, the 1985 Act
and the rules framed there under are not effective for making transfer in
respect of local cadres i.e., either inter cadre or from or to posts in the
cadre to and from posts in paragraph 14 of the Presidential Order for
which provision is to be made by the Government in terms of various
clauses of paragraph 5(2). The relevant portions of the counter affidavit
filed on behalf of the State Government in O.A. No.7579/1998 – Sardar
Harihar Singh and three others v. State of A.P. and others, are extracted
below:-
“It is further submitted that the applicants in the OA were
rd
transferred to Hyderabad City Police by the 3 respondent in
exercise of the powers conferred on him in G.O. Ms. No.288
dated 6.5.1986 on different dates. The seniority of the above
applicants is being maintained in their respective police ranges
only. None of the applicants were assigned seniority in
Hyderabad City Police. All of them were promoted as
Inspectors of Police in their respective parent units as per
their turn in seniority.
In reply to para 6(o) it is submitted that the contention
of the applicants that Hyderabad City Police is not a separate
zone is incorrect and baseless. It is fact that the entire AP has
been divided into six zones and Hyderabad City Police has
been treated as “Free Zone”. The Hyderabad City Police
being Free Zone has got separate entity as like other zones.
The vacancies in respect of posts of Hyderabad City Police are
notified separately and selection/appointment to the post of
Sub-Inspectors of Police, Civil and Reserve Sub-Inspectors of
36
Police, CAR and Police constables of both Civil and CAR to the
extent of vacancies are conducted by this unit only and
appointment orders to the candidates so selected after
completion of recruitment process work to the said posts such
as physical efficiency test, one star test, three star test and
also written examination to the candidates are conducted by
this unit only independently. The same process if followed in
respect of posts of other six zones separately by each zone.
Thus all the six zones and Hyderabad City Police are separate
units for all service matters of appointment, promotion to the
next rank etc. The Hyderabad City Police is not a part and
parcel of Zone Six as contended by the applicants.”
(emphasis supplied)
21. After taking note of the respective pleadings, the Tribunal dismissed
the O.As. The argument of the applicants that Hyderabad City Police is
part and parcel of Zone VI was rejected by the Tribunal in the following
words:
“There is no separate zones for Hyderabad city. It is thus a
free zone. It thus follows that the Hyderabad City Police Unit
is a free zone. Separate and independent recruitment is being
made in respect of post of Hyderabad city police. In short,
Hyderabad city police is being treated as a free zone where
there is independent recruitment.”
22. The private respondents challenged the order of the Tribunal by
filing different writ petitions which were heard and disposed of by the Full
Bench of the High Court. The Full Bench observed that the provisions of
the 1985 Act will have to be construed in harmony with the provisions of
the Presidential Order which prevail over any other provisions of the
37
Constitution or any other law for the time being in force. The Full Bench
then referred to various paragraphs of the Presidential Order and
observed:
“In construing the power granted to the State Government
under para 5(2) for making provision for transfers of persons,
we must not loose sight of the historical compulsions which
have led to the enactment of the Presidential Order, which is
buttressed by the over riding effect given to the provisions of
the Presidential Order not only against the exercise of the
majoritarian, political and executive choices of the State, but
is also made operative against any other provisions of the
Constitution of India (Art.371D(10) read with para 11 of the
Presidential Order).”
23. The Full Bench then delved into the grounds on which power under
paragraph 5 of the Presidential Order could be exercised and observed:
“Having regard to the provisions of para 14 of the Presidential
Order, no limitations are prescribed on the power of the State
Government to provide for transfer of the incumbent of a post
in any department, institution or establishment enumerated in
para 14 to another such department, institution or
establishment.
Insofar as transfers of persons falling within the ambit of para
5(2)(a) to (c) is concerned, provisions of the Act 1985 and the
rules thereunder set out in G.O.Ms. No.288 dated 6.5.1986,
must be construed as enabling such transfers only when no
qualified or suitable person is available in a particular local
cadre or where such transfer is otherwise considered
necessary in the public interest and for no other reason.
Normally such transfers must necessarily be of limited
duration or tenure to meet the specified exigency namely
either during the period no qualified or suitable person is
available or the public interest that necessitated such transfer,
continues. Immediately on cessation of such circumstances –
38
as and when a qualified or suitable person is available or
when the public interest concerned ceases to operate, the
person so transferred in the above exigencies must need be
repatriated to the local cadre to which he belongs either by
allotment or direct recruitment to it. There may be very rare
circumstances, and very rare they must necessarily be, where
a person is required to be transferred to another local cadre
on a longer term basis. Clear reasons for such long term
transfer must not only exist but must be clearly recorded. In
any case wherever such transfer, be it for a short term or
longer term, the transfers made in the circumstances set out
in para 5(2)(a) to (c) being on administrative exigencies, must
enable person so transferred to carry the benefit of his
seniority to the transferred local cadre. To this extent Rule 3
of the Rules made under the Act 1985 must be held to be
valid.
In the case of a transfer on reciprocal basis, para
5(2)(d) itself mandates that the person transferred shall be
assigned seniority in the later cadre with effect from the date
of his transfer to such cadre. Rule 3 of the Rules made under
the Act 1985 would have no application in such a case and the
provisions of para 5(2)(d) would operate. We are of the
opinion that even in respect of a transfer under para 5(2)(d)
the principles/guidelines for allotment in para 4(2) should be
borne in mind and reciprocal transfers should not be freely
approved which would gravely disrupt the need for
composition of balance cadre having regard to age and
seniority or the administrative needs of the posts in the local
cadre.
24. On the question whether there is a separate cadre for Hyderabad
City Police or the same falls in Zone-VI which includes District of
Hyderabad, the Full Bench observed as under:
“Nothing has been placed before this court to demonstrate
that any appointment of police officers have been made only
39
under the provisions of either the Hyderabad City Police Act
1348 Fasli but they have been made also under the Andhra
Pradesh (Andhra Area) District Police Act 1859 or the Andhra
Pradesh (Telengana Area) District Police Act 1349 Fasli. All
appointments have been made under the relevant Rules made
under provision to Art. 309 of the Constitution including the
Andhra Pradesh Police Service Rules; Andhra Pradesh Police
Subordinate Service Rules; Andhra Pradesh Police (Armed
Reserve) Service Rules; Andhra Pradesh (Communications)
Subordinate Service Rules; Andhra Pradesh Police (Computer
Centre) Service Rules and the Andhra Pradesh Police
(Computer Centre) Subordinate Service Rules, etc.
Sec 3(b) of Hyderabad City Police Act 1348 Fasli defines
a Police Officer to include every member of the City Police
Force appointed under this Act as also the Commissioner of
City Police, Hyderabad, the Deputy or Assistant Commissioner
of Police and subject to provisions of sub-sec. (2) of Sec. 9
and sub-sec.(2) of Sec. 10 every person who has been
appointed as an Additional or Special Police Officer. Sec. 7 of
this Act vests in the Commissioner of City Police the power to
appoint and promote Inspector of Police, Sub Inspector of
Police and other subordinates of the force and empowers the
Government to appoint the Deputy Commissioner and
Assistant Commissioner of Police. Sections 9 and 10 provide
the power to appoint Additional Police Officer and Special
Police respectively. No Police Officer has been appointed
under the provisions of this Act. All recruitments are notified
and appointment made under the Special Rules made under
the provision to Art 309 of the Constitution. Thus, though the
post of a Police Officer as defined in Sec. 3(b) of the
Hyderabad City Police Act 1348 Fasli is beyond the purview of
the Presidential Order in view of para 14 of the said Order,
there is in fact no Police Officer as defined in Sec. 3(b) of the
Hyderabad City Police Act 1348 Fasli, factually in existence.
As there has been no constitution of a separate cadre
for the city of Hyderabad for members of the Police Force in
terms of para 3(6) of the Presidential Order, members of the
police force allotted or recruited to Hyderabad must be
construed as having been so allotted or recruited to either the
40
District cadre of Hyderabad or zonal cadre of Zone VI viz
Hyderabad, Nizamabad, Mahabubnagar, Medak and Nalgonda
Districts, as the case may be, depending upon the rank they
hold, whether it is a District cadre post or a Zonal cadre post.
The post of an Inspector of Police in the Police
rd
department having been specified as item 51 of the 3
Schedule and being a specified gazetted category in terms of
para 2(1)(j) read with 3(4) of the Presidential Order and being
required therefore, to be organized into a zonal cadre of
Inspector of Police including those working for the since as
part of the Hyderabad city police, have to be considered as
members of Zone VI which includes the District of Hyderabad.
They do not fall within the provisions of para 14 of the
Presidential Order. The transfers from and to the
establishments and units of Hyderabad City Police therefore
fall within the parameters of para 5(2)(c) to (d). A person
once allotted to one zone and attached to his post must be
said to be belonging to the same zone and he has no right to
come to any other cadre, which is not organized one.
We may notice that no separate organization has come
into being in terms of para 3(1) of the Presidential Order.
Para 3(3) of the said order refers to the zonal posts. Para
3(5) apply to both gazetted and non-gazetted posts.
Although a power has been conferred in Para 3(6) to create a
separate cadre of posts which has to be organized for the city
of Hyderabad, no such cadre has come into being. Further, in
terms of notification for the purpose of organization of a
separate cadre for the city of Hyderabad. Para 3(5) will have
application only in relation to the said local cadres, which have
been organized in respect of any category of posts. Such
local cadre would be a separate unit inter alia for the
purposes of recruitment, appointment, discharge, seniority,
promotion and transfer. …………
In terms of the II Schedule there are only six zones.
The city of Hyderabad comes within the purview of Zone VI.
The city of Hyderabad, although loosely treated as a separate
zone, but no such separate zone has been created. The city
41
of Hyderabad therefore comes within the purview of Zone VI
only.”
25. The Full Bench then recorded 13 conclusions including the following,
which are under challenge in these appeals:
“(b) No separate cadre has been organised for the City of
Hyderabad within the meaning of para 3(6) of the
Presidential Order.
(c) No recruitment to the post of a police officer as defined
in Sec. 3(b) of Hyderabad City Police Act 1348 Fasli has
been made and there is thus factually no incumbent of
the post of police officer under para 14(f) of the
Presidential Order.
(d) Inspectors of Police working in the Hyderabad City
Police establishments either on promotion to that post
or by direct recruitment, must be considered as
belonging to Zone VI in the zonal cadre.”
26. Shri L. Nageshwar Rao, learned senior counsel appearing for the
appellants referred to clause (10) of Article 371D, paragraph 11 of the
Presidential Order and order passed by the Division Bench of the High
Court in Writ Appeal No.890/1975 and argued that when the Parliament
has unequivocally recognized the primacy of the provisions contained in
the Presidential Order, exclusion clause contained in paragraph 14(f)
thereof is required to be given full effect and the Full Bench committed
serious error by indirectly bringing the post of Police Officer as defined in
Section 3(b) of the Hyderabad Act in the scheme of
42
localization/zonalisation of cadres. Learned senior counsel emphasized
that the appellants were recruited as Sub-Inspectors for Hyderabad City
Police which does not fall in any of the zones carved out for localization of
different cadres and argued that the Full Bench erred in holding that no
separate cadre was constituted for Hyderabad City Police. Shri Nageshwar
Rao made a pointed reference to G.O. Ms. No.795 dated 30.6.1976 to
show that in the scheme of organization of local cadres for non-gazetted
posts of the police department, it was specifically mentioned that any post
of Police Officer as defined in Section 3(b) of the Hyderabad Act is outside
the purview of the Presidential Order and the same shall apply to
remaining offices of the police department mentioned in paragraph 4.
Learned counsel then submitted that even while forming new police ranges
vide G.O. Ms. No.1697 Home dated 10.12.1975, a separate range i.e., City
Range was carved out for Hyderabad, Secunderabad and other areas
mentioned in First Schedule to the Presidential Order and argued that by
declaring that members of police force allotted or recruited to Hyderabad
must be construed as having been so allotted or recruited to either the
district cadre of Hyderabad or zonal cadre of Zone VI i.e., Hyderabad,
Nizamabda, Mahabubnagar, Medak and Nalgonda districts, the Full Bench
has virtually negated the exclusion clause contained in paragraph 14(f) of
the Presidential Order and, at the same time, made the creation of City
43
Range redundant. Learned senior counsel argued that in view of the
exclusion clause contained in paragraph 14(f) of the Presidential Order,
the posts of Constable, Head Constable, Sub-Inspector and Inspector of
Hyderabad City Police are not covered by the scheme of
localization/zonalisation and the same cannot be treated as part of Zone VI
as has been done by the Full Bench of the High Court. Shri Nageshwar
Rao submitted that not only the post of Police Officer as defined in Section
3(b) of the Hyderabad Act but various other posts in the Secretariat of the
State Government, in the offices of Heads of Department, Special Office or
Establishment etc. are excluded from the purview of the Presidential Order
and till the pronouncement of the Full Bench, recruitment to all the posts
enumerated in paragraph 14(f) of the Presidential Order was being made
without any preference being given to local candidates. He also referred
to the counter affidavits filed on behalf of the State Government and
Commissioner of Police in the O.As. filed by the private respondents to
show that it has been the consistent stand of the official respondents that
Hyderabad City Police has been treated as free zone and the vacancies in
respect of posts of Hyderabad City Police are notified separately and
selection to various cadres are being conducted for appointment for
Hyderabad City Police only.
44
27. Shri Anoop G. Choudhari, learned senior counsel appearing for the
State submitted that even though in terms of Section 7 of the Hyderabad
Act, the power to appoint an Inspector, Sub-Inspector and other
subordinate of the force vested in the Commissioner of Police, Hyderabad,
after framing of Special Rules for Police Subordinate Service, the said
power can be exercised by other designated authorities and, therefore,
those appointed on subordinate posts in Hyderabad City Police cannot be
treated as part of separate cadre. Shri Choudhari further submitted that
the exclusion clause contained in paragraph 14(f) could operate only if a
separate cadre had been carved out for Hyderabad City and submitted that
in the absence of any recruitment having been made for Hyderabad City
Police, the Full Bench rightly treated the Inspectors of Police working in
Hyderabad City Police establishment as belonging to Zone VI in the zonal
cadre
28. We have given serious thought to the entire matter. It is not in
dispute that the Presidential Order was issued for providing equitable
opportunities and facilities for the people belonging to different parts of
the State in the matters of public employment and education and by virtue
of clause (10) of Article 371D, overriding effect has been given to the
Presidential Order qua other constitutional and statutory provisions. For
45
achieving the objective set out in clause (1) of Article 371D, provisions
have been made in the Presidential Order for localization/zonalization of
cadres and giving preference to the candidates belonging to the particular
local area. Paragraph 3 of the Presidential Order postulates organization
of local cadres for different posts. Paragraph 5(1) thereof declares that
each part of the State, for which a local cadre has been organized in
respect of any category of posts, shall be a separate unit for purposes of
recruitment, appointment, discharge, seniority, promotion, transfer and
other matters, as may be specified by the Government in respect of that
category of posts. Paragraph 5(2) empowers the State Government to
make provision for transfer of employees in different contingencies.
Paragraph 6(1) defines local areas. Paragraph 6(2) lays down that each
zone shall be regarded as local area for specified purposes. However, two
exceptions have been carved out in the Presidential Order in respect of
certain categories of posts for the City of Hyderabad. One such exception
is discernible from the language of paragraphs 3(6) and 6(3). In terms of
sub-paragraph (6) of paragraph 3, the Central Government is empowered
to notify the departments in which and categories of posts for which a
separate cadre is required to be recognized for the City of Hyderabad.
This sub-paragraph also lays down that on such notification being issued
the post belonging to each such category and in each such department in
46
the City of Hyderabad (other than those concerned with the administration
of areas falling outside the said City) shall be organized into a separate
cadre and the posts so organized shall be excluded from other cadres. In
terms of paragraph 6 of the Presidential Order, each district and each zone
is regarded as local area but by virtue of sub-paragraph (3) thereof, the
City of Hyderabad is regarded as a local area for direct recruitment to
posts in any cadre under the State Government comprising all or any of
the posts in the said city, in the departments and belonging to the
categories notified under paragraph 3(6). The city is also excluded from
the local area relatable to any other local cadre comprising posts in the
departments belonging to the categories notified in terms of sub-
paragraph (3) of paragraph 6. The other exception is in the form of
exclusion clause contained in paragraph 14(f) which operates on its own
and does not depend on the issue of notification by the Central
Government. By virtue of that paragraph, the provisions contained in the
Presidential Order have been made inapplicable to the specified posts,
which include any post of Police Officer as defined in clause (b) of Section
3 of the Hyderabad Act. This was made more explicit by paragraph 8 of
G.O.P. No.728 dated 1.11.1975 issued by the Government of India,
paragraphs 5 and 21 of G.O. Ms. No.729 dated 1.11.1975 and paragraph 2
of G.O. Ms. No.730 of the same date (both issued by the Government of
47
Andhra Pradesh). When G.O. Ms. No.795 dated 30.6.1976 was issued
incorporating therein the scheme for organization of local cadres for non-
gazetted categories of posts (both Executive and Ministerial) and other
posts equivalent to or lower than Lower Division Clerk, the post of Police
Officer as defined in clause (b) of Section 3 of the Hyderabad Act was
specifically excluded. In paragraph 16 of G.O. Ms. No.795, it was made
clear that as no separate cadre for the City of Hyderabad needs to be
organized for the police department and only ministerial staff of the office
of Commissioner of Police will be included in Zone VI. The posts of the
Police Officers of Hyderabad City were not shown in the cadre strength of
the localized cadres contained in Annexures IV, V, XII and XIII appended
to G.O. Ms. No.795. This was so because there was no localization of
Hyderabad City Police cadres. This was also the reason why a separate
range i.e., City Range was created for Hyderabad, Secunderabad and
other areas mentioned in First Schedule to the Presidential Order.
29. From what we have noted above, it is evident that the post of Police
Officer of Hyderabad City as defined in Section 3(b) was not included in
the process of localization of cadres undertaken in terms of paragraphs 3
and 6 of the Presidential Order. The localization/zonalization of
subordinate cadres in the police department was effected for six
48
zones/ranges but the same was not applicable to Hyderabad City Police. If
this was not so, there was no reason to exclude posts earmarked for
Hyderabad City from the statement of cadre strength of localized cadres
enumerated in various Annexures appended to G.O. Ms. No.795 dated
30.6.1976. The object of exclusion of certain posts from the purview of
the Presidential Order and consequently from the scheme of
localization/zonalization required to be undertaken in terms of paragraphs
3 and 6 thereof was to make recruitment against such posts open for all
without giving any preference to any local candidate. The reason why
special status was given to the posts located in the specified departments
of Hyderabad City, which is capital of the State, was that there should be
no monopoly of candidates belonging to any particular area of the State in
the matter of recruitment etc. against those posts and all eligible
candidates must get opportunity to compete for selection and
appointment.
30. It is also significant to note that after promulgation of the
Presidential Order, Hyderabad City has throughout been treated as an
independent zone or free zone till the impugned judgment was
pronounced and recruitment to the post of Police Officer as defined in
Section 3(b) of the Hyderabad Act was made separately. This was the
49
categorical stand taken by the official respondents before the Tribunal
while contesting the O.A. of the private respondents. In reply to
paragraph 6 of the O.A. filed by Sardar Harihar Singh, it was specifically
averred on behalf of the State that vacancies in respect of posts of
Hyderabad City Police are notified separately and selections/appointments
to the posts of Sub-Inspectors of Police, Civil and Reserve Sub-Inspector,
CAR and Police Constable of both Civil and CAR to the extent of vacancies
are conducted separately and all six zones and Hyderabad City Police are
separate zones for all service matters i.e., appointments, promotions, etc.
and Hyderabad City Police is not part and parcel of Zone VI. The contra
stand taken in the counter affidavits filed before this Court is inexplicable
and is liable to be discarded.
31. We shall now consider whether conclusions (b), (c) and (d) recorded
by the Full Bench of the High Court are legally correct and sustainable.
The observations of the Full Bench that no separate cadre has been
organized and no Police Officer has been appointed under the Hyderabad
Act is based on the premise that in the advertisement issued for
recruitment of Police Officers and appointment orders of the appellants
and other similarly situated persons, reference has not been made to
Hyderabad Act. While doing so, the Full Bench omitted to take note of the
50
fact that in terms of Section 7 of the Hyderabad Act, powers to appoint
and promote Inspector, Sub-Inspector and other subordinates of the police
force vests in the Commissioner of City Police Hyderabad and the said
Section finds specific mention in the preamble to the Special Rules framed
in 1959. Rule 3 of those Rules clearly lays down that as far as Hyderabad
City Police is concerned, the Commissioner of Police shall be the
appointing authority of Sub-Inspectors of Police etc. and by virtue of that
power, the Commissioner of Police, Hyderabad has been making
appointments on various subordinate posts including those of Sub-
Inspectors. In the advertisement of 1985 pursuant to which the
appellants were appointed as Sub-Inspectors, 93 posts were separately
earmarked for Hyderabad City which, for the sake of convenience, was
described as Zone VII or free zone. Even in the subsequent
advertisements issued in 1991 and 1994, the vacancies of Sub-Inspectors
were separately earmarked for Hyderabad City Police Range. The orders
of appointment of the appellants were issued by the Commissioner of
Police. This shows that a separate cadre has been carved out for
Hyderabad City Police and recruitment to the post of Police Officer as
defined in Section 3(b) of the Hyderabad Act has been made by the
designated competent authority in terms of Section 7 thereof. Therefore,
the Full Bench was not justified in curtailing the width and scope of the
51
exclusion clause contained in paragraph 14(f) of the Presidential Order by
holding that there is no separate cadre of Hyderabad City Police and there
is no incumbent of the post of Police Officers as defined in Section 3(b) of
the Hyderabad Act.
32. In view of the above discussion, we hold that the conclusions
recorded by the Full Bench that no separate cadre has been organized for
the City of Hyderabad within the meaning of paragraph 3(6) of the
Presidential Order; that no recruitment to the post of Police Officer as
defined in Section 3(b) of the Hyderabad Act has been made and there is
factually no incumbent of the post of Police Officer under paragraph 14(f)
of the Presidential Order and that the Inspectors of Police working in the
Hyderabad City Police establishment either on promotion to that post or by
direct recruitment must be considered as belonging to Zone VI in the zonal
cadre cannot be sustained and are liable to be set aside.
33. In the result, the appeals are allowed and conclusions (b), (c) and
(d) recorded in the impugned judgment are set aside. The parties are left
to bear their own costs.
……………………………….J.
[B.N. AGRAWAL]
52
……………………………
….J.
[G.S. SINGHVI]
New Delhi,
October 9, 2009