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

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

2

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

3

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

4

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

5

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

6

(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.

7

(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

8

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

9

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)

(ii)

Hyderabad

Division

Secunderabad

10

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

(1

st

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

11

(15

th

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:-

12

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

18

th

October, 1975. As already indicated, non-gazetted

categories of posts exempted by the notification G.S.R.

No.529(E), dated 18

th

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

13

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)

14

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

15

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

16

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

17

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 10.12.1975G.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–IIICentral Range

Headquarters at

Guntur

1. Guntur 1. Krishna

18

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–VIHyderabad Range

Headquarters at

Hyderabad

1. Hyderabad 1. Hyderabad

2. Nizamabad 2. Nizamabad

3. Mahaboobnagar 3. Mababoobnagar

4. Medak 4. Medak

5. Nalgonda

City Range

19

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

20

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,

21

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.

22

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

23

(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

24

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

25

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

26

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

27

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

28

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

29

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

30

/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.

Dated 9

th

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

31

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-

32

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

33

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

34

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

transferred to Hyderabad City Police by the 3

rd

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

35

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

36

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 –

37

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

38

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

39

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

department having been specified as item 51 of the 3

rd

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

40

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

41

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

42

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.

43

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

44

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

45

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

46

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

47

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

48

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

49

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

50

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]

51

……………………………

….J.

[G.S. SINGHVI]

New Delhi,

October 9, 2009

52