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CASE NO.:

Appeal (civil) 1651-1652 of 1997

PETITIONER:

GOVT. OF ANDHRA PRADESH & ORS.

Vs.

RESPONDENT:

MOHD. GHOUSE MOHINUDDIN & ORS.

DATE OF JUDGMENT: 27/08/2001

BENCH:

G.B. Pattanaik & Ruma Pal

JUDGMENT:

With Civil Appeal No. 1653/1997.

JUDGMENT

PATTANAIK, J.

These appeals are directed against the order of the

Andhra Pradesh Administrative Tribunal. By the impugned

order, the Tribunal directs the re-determination of inter se

seniority zone-wise basis in different cadres for promotion to

the higher posts. The tribunal deals with three different

departments of the Government of Andhra Pradesh,

Commercial Tax Department, Revenue Department and

Police Department.

After insertion of Article 371-D of the Constitution, by

the Constitution (32nd Amendment) Act, 1973, the President

of India, issued Andhra Pradesh Public Employment

(Organisation of Local Cadres and Regulation of Direct

Recruitment) Order, 1975 [hereinafter referred to as the

Presidential Order]. The aforesaid Presidential Order was

intended for providing equitable opportunities and facilities

for the people belonging to different parts of the State of

Andhra Pradesh, in the matter of public employment and in

the matter of education. The object of the aforesaid Article

was to promote accelerated development of the backward

areas of the State of Andhra Pradesh, so as to secure the

balanced development of the State as a whole and to provide

equitable opportunities to different areas of the State in the

matter of education, employment and career prospects in

public service. The expression Public employment in

Article 371-D has been interpreted by this Court in the case

of Government of Andhra Pradesh and Anr. vs. A.

Suryanarayanarao and Ors., 1991 Supp.(2) S.C.C. 367, to

mean both direct recruitment as well as promotion.

Paragraph 3 of the Presidential Order casts an obligation on

the State Government to organise classes of posts in the Civil

Services and the classes of Civil posts under the State, into

different local cadres for different parts of the State to the

extent and in the manner provided in the Presidential Order,

within a period of 18 months from the commencement of the

Presidential Order. Proviso to the aforesaid paragraph

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enables the President to require the State Government, at any

time, even after the expiry of the period of 18 months,

whenever the President considers it expedient so to do, to

organise any classes of posts in the Civil Services of, and

classes of civil posts under the State into different local

cadres for different parts of the State. The aforesaid enabling

provision for organisation of different local cadres is

obviously intended to achieve the main objective of Article

371-D, namely to provide equitable opportunities to different

areas of the State, in the matter of education, employment

and career prospects in public services as well as to promote

accelerated development of the backward areas of the State

of Andhra Pradesh, so as to secure the balanced development

of the State as a whole. Sub-para (3) of Paragraph 3 of the

Presidential Order reads thus:

Para 3(3). The posts belonging to each non-

gazetted category, other than those referred to in

sub-paragraph (2), in each department in each

zone shall be organised into a separate cadre.

Sub-para (7) of Paragraph 3 reads thus:

Para 3(7) In organising a separate cadre in

respect of any category of posts in any department

for any part of the State, nothing in this order shall

be deemed to prevent the State Government from

organising or continuing more than one cadre in

respect of such category in such department for

such part of the State.

Paragraph 6 of the Presidential Order deals with the local

areas, which reads thus:

Para 6. Local Areas: -(1) Each district shall

be regarded as a local area-

(i)for direct recruitment to posts in any local cadre

under the State Government comprising all or any

of the posts in any department in that district

belonging to the category of a Junior Assistant or

to any other category equivalent to or lower than

that of a Junior Assistant;

(ii) for direct recruitment to posts in any cadre

under any local authority within that district,

carrying a scale of pay the minimum of which

does not exceed the minimum of the scale of pay

of Junior Assistant or a fixed pay not exceeding

that amount.

(2)Each zone shall be regarded as a local area-

(i)for direct recruitment to posts in any local cadre

under the State Government comprising all or any

of the posts in any department in that zone

belonging to any non-gazetted category other than

those referred to in sub-paragraph (1);

(ii)for direct recruitment to posts in any local

cadre comprising all or any of the posts in any

department in that zone belonging to the

categories of Tahsildars and Junior Engineers;

Assistant Agricultural Officers, Inspectors of

Police and Motor Vehicles Inspectors. [G.O.Ms.

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No.498, G.A.D.(SPF), Dt. 16.7.1977]

(iii)for direct recruitment to posts in any cadre

under any local authority within that zone,

carrying a scale of pay, the minimum of which

exceeds the minimum of the scale of pay of a

Junior Assistant but does not exceed Rs.480 per

mensem; or a fixed pay which exceeds the

minimum of the scale of pay of a Junior Assistant

but does not exceed Rs.480 per mensem;

Provided that where a single cadre has been

organised for two or more zones under sub-

paragraph (5) of paragraph 3 of posts belonging to

any of the categories referred to in clause (i) or

clause (ii) each of such zones shall be regarded as

a separate local area in respect of such cadre.

(3).Notwithstanding anything contained in sub-

paragraph (1) and (2):--

(i)the City of Hyderabad shall be regarded as a

local area for direct recruitment to posts in any

local cadre under the State Government

comprising all or any of the posts in the said City

in the departments and belonging to the categories

notified under sub-paragraph (6) of paragraph 3,

and said City shall be excluded from the local area

relatable to any other local cadre comprising posts

in the departments and belonging to the categories

so notified; and

(4).Notwithstanding anything contained in sub-

paragraphs (1), (2) and (3):-

(i)the districts of Medak, Rangareddy and

Hyderabad shall be regarded as a local area for

direct recruitment to posts in any cadre under the

Hyderabad Urban Development Authority

Comprising posts, carrying a scale of pay, the

minimum of which does not exceed the minimum

of the scale of pay of a Junior Assistant or a fixed

pay not exceeding that amount;

(ii)Zone VI shall be regarded as a local area for

direct recruitment to posts in any cadre under the

Hyderabad Urban Development Authority

comprising posts, carrying a scale of pay, the

minimum of which exceeds the scale of pay of

Junior Assistant but does not exceed Rs.480 per

mensem or a fixed pay which excess the

minimum of the scale of the pay of Junior

Assistant but does not exceed Rs.480 per mensem.

[Sub-para (4) is added by G.O.Ms. No. 498,

G.A.D., (SPF-A) Dept., Dt. 16.7.1977].

(iii)the city of Hyderabad shall be regarded as a

local area for direct recruitment to posts in any

cadre under a local authority within the said city

comprising posts carrying a scale of pay, the

minimum of which does not exceed Rs.480 per

mensem or a fixed pay not exceeding that amount,

and the said City shall be excluded from the local

area relatable to any cadre under any local

authority not within the said City.

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In exercise of powers conferred upon the State Government

under paragraph 3(1) of the Presidential Order, the State of

Andhra Pradesh issued G.O.Ms. No. 581, organising the

Commercial Tax Department by constituting different local

cadres. The aforesaid Government Order, providing scheme

for organisation of local cadre in Commercial Tax

Department, was issued on 24th of May, 1976, and Appendix

to the aforesaid scheme, indicates that while posts of Deputy

Commissioners, Assistant Commissioners and Commercial

Tax Officers, continue to be state level posts and as such,

there was no necessity to organise any local cadre, but the

posts of Deputy Commercial Tax Officers were organised

into six zonal cadres and the cadre strength of different zones

was also indicated in the aforesaid schedule. So far as the

Non-Gazetted posts are concerned, they were organised into

nine different smaller units by the State Government, for the

purpose of recruitment and promotion. Necessarily,

therefore, by way of an annexure, the revised jurisdiction of

the Deputy Commissioners Division, after reorganisation,

was indicated, indicating nine different smaller units, and

these smaller units, became the area for the purpose of

recruitment and promotion and seniority as well.

Corresponding to G.O.Ms. No. 581 issued for the

Commercial Tax Department, G.O.Ms.No. 497 dated 30th of

April, 1976 deals with Revenue Department and under the

aforesaid G.O.Ms, while paragraph 5 deals with gazetted

posts of Tahsildars, which are required to be organised into

zonal cadres and in fact six zonal cadres had been organised,

but so far as non-gazetted posts are concerned, the same was

organised into district-wise basis as the unit and nine such

units were organised, in respect of the posts of Deputy

Tahsildars, Head Clerks, Upper Division Clerks, Lower

Division Clerks, Typists, Shroffs, Jeep Drivers, Record

Assistants and Last Grade Servants. In an identical manner,

reorganisation of posts in the local cadre in Police

Department was issued under G.O.Ms. No. 795 dated 30th

June, 1976. It is undisputed that in this batch of appeals, we

are concerned with the question of seniority as well as

promotion in respect of such non-gazetted posts in the

Commercial Tax Department, in the Revenue Department

and Police Department. These smaller units, organised by

the State Government in discharge of its obligation under

paragraph 3 of the Presidential Order, remained operative and

the appointment, promotion and seniority continued to be

dealt with the smaller units as the cadre, until the impugned

judgment of the tribunal. It may be necessary at this stage to

mention that in the Commercial Tax Department, subsequent

to the issuance of G.O.Ms. No. 581, the Government of

Andhra Pradesh had issued two further G.O.Ms. being

G.O.Ms Nos. 1648 and 1900. The validity of the aforesaid

two G.O.Ms. was the subject matter of consideration in the

case of S. Prakasha Rao and anr. vs. Commissioner of

Commercial Taxes and Ors., 1990(2) S.C.C. 259. A Three

Judge Bench of this Court, analysed different paragraphs of

the Presidential Order as well as the Order issued by the

State Government, organising different classes of posts into

the local cadres, in accordance with paragraph 3 of the

Presidential Order and ultimately, came to the conclusion that

after expiry of 18 months from the date of the issuance of the

Presidential Order, there is no power with the State

Government for creation of any further local cadre and,

therefore, the seniority has to be prepared pursuant to the

initial organisation, and the question of seniority and

promotion has to be determined, within the local cadre,

created by the State Government in issuing the order of

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organisation, as required under paragraph 3 of the

Presidential Order. In S.Prakasha Raos case, this

Court came to the conclusion that the post of Junior Assistant

is the District Cadre post and the posts of Senior Assistants

and Assistant Commercial Tax Officers are the zonal posts.

The Court also further came to the conclusion that under

paragraph 3(1) of the Presidential Order, the State

Government, through issuance of G.O.Ms. No. 581 had

organised the Commercial Taxes Department by constituting

different local cadres and having done so, the State ceases to

have any power to bifurcate or reorganise a zone within a

zone, cadre or cadres therein and, therefore, any such

subsequent reorganisation could be only for administrative

necessity and not for the purpose of recruitment, seniority

and promotion etc. The Court held that for the purpose of

recruitment, seniority, promotion, discharge etc., the local

cadre once organised under paragraph 3(1) shall be final and

continue to be operative until action is taken under proviso to

sub-paragraph (1) of Paragraph 3 of the Presidential Order.

With these conclusions, the action of the State Government,

in issuing subsequent G.O.Ms. was held to be invalid.

A batch of cases relating to the Commercial Tax

department, Revenue Department and Police Department

were heard together by the Administrative Tribunal and were

disposed of by the common judgment which is the subject

matter of challenge in these appeals. The tribunal in the

impugned order came to the conclusion that validity of

G.O.Ms. No. 581, dealing with Sales tax department did not

fall for consideration in the earlier round of litigation in

Prakash Raos case. It further held that Division is a unit for

the purpose of administration and zone is a unit for the

purpose of organisation of cadres for direct recruitment,

appointment, seniority, promotion and transfer under the

Presidential Order. It also held that organisation of various

local cadres under the notification issued by the State

Government, does not satisfy the requirement of the

Presidential Order as provided in para 3 and such separate

cadres in smaller units affect the conditions of service

mentioned in para 5(1). The tribunal held that Para 3(7) of

the Presidential Order, only enables the State Government to

have separate cadre for administrative convenience and that

the principle on which Supreme Court struck down the

subsequent G.O.Ms. in Prakash Raos case, would equally

apply to G.O.Ms. No. 581. Interpreting Para 3(7), the

tribunal held that the State Government cannot organise

cadre in any other part of the state for the purpose of public

employment. On an analysis of the G.O.Ms. No. 497, issued

in respect of the posts in the Revenue Department, the

tribunal held that the units of appointment for the above

categories of posts in the Revenue Department, conform to

the provision in the Presidential Order and hence no

particular action is called for in respect of the posts in the

Revenue Department. The tribunal found that the Sales Tax

Department, the Revenue Department and the Police

Department have acted without reference to the Presidential

Order. Interpreting the expression such part of the State, it

held that the State Government cannot organise cadres in

any other part of the State for the purpose of public

employment, mentioned in para 5(1). The tribunal ultimately

held that recruitment to different posts, has to be made as per

the units created under the Presidential Order and not in

accordance with the reorganisation made by the State

Government in exercise of powers conferred under para 3 of

the Presidential Order. With these conclusions, the specific

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G.O.Ms in the three departments having been annulled and

further directions having been issued, these appeals have

been preferred.

Mr. L. Nageswara Rao, appearing for the appellant in

Civil Appeal No. 1653/1997 and Mr. G. Prabhakar,

appearing for the appellant-State of Andhra Pradesh in the

other appeals, contended that the reorganised units having

been created by the State Government, in exercise of power

under paragraph 3(1) of the Presidential Order, since 1976

and having remained operative for more than 15 years, the

tribunal was not justified in entertaining applications in the

years 1992 and 1993 and then interfering with the said

organisational scheme and directing reconsideration of the

seniority and consequential promotional avenues, which

would unsettle the settled position and would create chaos in

administration. It was further contended that in Prakash

Raos case, this Court has examined a relevant G.O.Ms,

issued by the State Government in exercise of powers under

Paragraph 3(1) and has held that the units, created by the

State Government under the scheme of organisation, would

be the unit, for the purpose of recruitment, promotion,

discharge etc., the tribunal had no jurisdiction to interfere

with that conclusion and on an erroneous analysis of the

provisions, the tribunal has interfered with the same and as

such, the impugned order of the tribunal cannot be sustained.

The counsel also urged that paragraph 3(1) of the Presidential

Order, enables the State Government to organise classes of

posts in the civil services, into different local cadres for

different parts of the State and paragraph 3(7) of the

Presidential Order makes it explicitly clear that nothing in the

Presidential Order would prevent the State Government from

organising separate cadre in respect of any category of posts

in any department for any part of the State. A combined

reading of paragraphs 3(1) and 3(7), therefore makes it clear

that within 18 months from the commencement of the

Presidential Order, the State Government could organise

classes of posts in the civil services of the State into different

local cadres for the purpose of achieving the main objective

of the Presidential Order, and such organised local cadre,

would be the area of operation for considering the question of

recruitment, promotion etc. This being the position, the

tribunal committed error by holding that paragraph 3(3) of

the Presidential Order would have an over-riding effect.

Mr. P.S. Narasimha, appearing for the respondents in

the appeal relating to Revenue Department, on the other hand

contended that the Presidential Order, more particularly,

paragraph 3(3) of the same, indicates the zone and zone

should be the area of consideration and the State Government

cannot be held to have any jurisdiction to constitute any

smaller units for the purpose of recruitment, promotion etc.,

which would contravene the Presidential Order and,

therefore, the tribunal was justified in issuing the impugned

direction. So far as the delay in approaching the tribunal is

concerned, Mr. Narasimha contends, that if the

reorganisation of the cadre by the State Government is

contrary to the Presidential Order and consequently, invalid

and inoperative, the mere delay in approaching the tribunal,

would not take away the rights of the employees and,

therefore, the tribunal was justified in interfering with the

G.O.Ms. issued by the State Government under paragraph

3(1) of the Presidential Order.

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We have considered the rival submissions and we find

considerable force in the submission of Mr. Nageswara Rao

and Mr. Prabhakar, appearing for the appellants, both on the

question of delay as well as on the interpretation of the

Presidential Order as well as the order issued by the State

Government, in exercise of powers under paragraph 3(1) of

the Presidential Order. From the impugned order of the

tribunal as well as the materials on record, it is crystal clear

that the notifications issued by the State Government in the

year 1976, organising smaller units of cadre in respect of

non-gazetted posts, remained operative till the tribunal was

approached in 1992-93. The recruitment, promotion and

other service conditions of these employees, in respect of

posts enumerated in the order of the State Government was

made within the organised cadre, issued by the State

Government, which was essentially meant for equitable

opportunities and facilities in the matter of public

employment. It is a cardinal principle in Service

Jurisprudence, that a particular method or procedure adopted

for a long time, need not be ordinarily interfered with, unless

such method is repugnant to any constitutional provision or is

contrary to any statutory rule. That apart, under the

Administrative Tribunal Act, a period of limitation is

provided for, in Section 21. In this view of the matter, when

the units formed the cadre, pursuant to notifications issued by

the State Government, in the year 1976, in respect of non-

gazetted posts and on that basis, appointment to and

promotion within the cadre was being considered, in respect

of non-gazetted posts, applications filed before the tribunal in

1992-93, after expiry of more than 15 years, could not have

been entertained and the settled position could not have been

unsettled, as has been done by the tribunal in its final order.

On this ground alone, the impugned order cannot be

sustained.

Let us now examine the provisions of the Presidential

Order as well as the notifications issued by the State

Government in exercise of powers conferred upon it under

the Presidential Order, to find out whether by such

notifications, there has been any infraction of the

constitutional provision or the provision contained in the

Presidential Order itself. When one speaks of public

employment, immediately Article 16 comes into focus.

Clauses (1) and (2) of Article 16 guarantee equality of

opportunity to all citizens, in the matter of appointment to

any office or any employment under the State. Clauses (3)

to (5) lay down exception to the above rule and Clause (4)

permits reservation for backward classes of citizens, who are

not in the opinion of the State, adequately represented in the

services of the State. In view of the mandate of Article 16,

but for the Presidential Order issued under Article 371-D, it

would not have been possible to consider the question of

employment within the narrower units of cadre, created by

the State Government, in exercise of powers conferred upon

it under paragraph 3(1) of the Presidential Order. Article

371D, however was inserted in the Constitution by the

Constitution (32nd Amendment) Act, 1973, authorising the

President to pass special order in respect of the State of

Andhra Pradesh. The history behind insertion of the

aforesaid Article has been elaborately dealt with in the

impugned order of the tribunal. Suffice it to say that, as

there was lot of disparity in the matter of opportunities,

available in public employment between the inhabitants of

Telengana region and the Andhra region, there was a

political turmoil and ultimately, the political will culminated

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in a six point formula and it is in implementation of the

aforesaid formula, Article 371-D was inserted, conferring

power on the President of India to pass appropriate order for

equitable opportunities and facilities for the people belonging

to different parts of the State, in the matter of public

employment. Clause (2) of Article 371D enables the

President of India, to provide in the order, requiring the State

Government to organise any class or classes of posts in a

civil service of the State, into different local cadres for

different parts of the State and allot, in accordance with such

principles and procedure, as may be specified in the order,

the persons holding such posts to the local cadre, so

organised. The State Government, which is supposed to be

aware of the representation of the people from different areas

of the State in any class or classes of civil posts, has thus

been conferred with power to organise smaller units, as cadre

for the purpose of recruitment, promotion and other

conditions of service in public employment, so that people

from different parts can share responsibility, which in turn

would ensure all round development of the State. The

Presidential Order, that has been issued in exercise of powers

under Clauses (1) and (2) of Article 371-D, unequivocally

authorises the State Government in paragraph 3 of the Order

for organisation of local cadres for different parts of the

State. Sub-para (7) of Paragraph 3, itself stipulates that in

the matter of organising a separate cadre in respect of any

category of posts, in any department for any part of the State,

nothing stated in the Presidential Order can be deemed to

prevent the State Government from such act.

A combined reading of sub-para (1) of Paragraph 3 and

sub-para (7) of Paragraph 3, unequivocally indicates that any

order issued by the State Government in the matter of

organising a separate cadre, in respect of any category of

posts, will have an over-riding effect and no part of the

Presidential Order, including sub-para(3) of Paragraph 3, on

which Mr. Narasimha, strongly relied upon be a fetter on the

said power of the State Government. Such power has been

designedly conferred upon the State Government to achieve

the main objective for which Article 371-D was engrafted,

viz. to provide equitable opportunities to different areas of

the State, in the matter of employment and career prospects

in public services, and for achieving the aforesaid objective,

undoubtedly, the State Government would be in possession

of all datas and materials, enabling it to organise different

local cadres. We have no hesitation to come to the

conclusion that paragraph 3(1) read with para 3(7) is not

subject to Paragraph 3(3), as was held by the tribunal and as

was contended by Mr. Narasimha. On the other hand,

paragraph 3(7) of the Presidential Order, would have an over-

riding effect over paragraph 3(3) and, therefore, any order

issued by the State Government under Paragraph 3(1),

constituting different local cadres for different parts of the

State would be the area of operation for the purpose of

recruitment, promotion and other service conditions, so far as

the non-gazetted posts are concerned. In the aforesaid

premises, we are of the considered opinion that the tribunal

committed serious error in interpreting different provisions of

the Presidential Order and the notifications of the State

Government, issued in exercise of powers conferred upon it

under paragraph 3(1) of the Presidential Order, and

accordingly, the said order of the tribunal is set aside. The

conclusions of the tribunal, on interpreting the provisions of

the Presidential Order, on the face of it, are erroneous and

cannot be sustained. We are unable to sustain the conclusion

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that the very principle on which Supreme Court struck down

the subsequent notifications, purported to have been issued in

exercise of powers under paragraph 3(7) of the Order, would

apply to the initial notification issued for organising various

local cadres. We also fail to understand, how by organising

local cadres under notifications issued by the State

Government, any requirement of the Presidential Order has

been contravened. The further conclusion of the tribunal

that paragraph 3(7) only enables the State Government to

have separate cadres for administrative convenience, is

based upon a misreading of the said provision and would be

repugnant to the purpose for which the Presidential Order

was issued in exercise of powers under Article 371-D, and

the State Government was conferred power for organising

smaller cadres in different parts of the State to achieve

uniform development and to offer equal opportunities in the

matter of employment. We, therefore, unhesitatingly, set

aside the conclusions arrived at, by the tribunal in the

impugned judgment.

These appeals are allowed. The applications filed

before the tribunal, stand dismissed.

...................J.

(G.B. PATTANAIK)

..................J.

(RUMA PAL)

August 27, 2001.

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