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ANDHRA PRADESH ADMINISTRATIVE TRIBUNAL AT HYDERABAD

MONDAY THE 23RD DAY OF APRIL TWO THOUSAND AND TWELVE

HON’BLE SRI. JUSTICE DR.G.YETHIRAJULU, CHAIRMANHON’BLE SRI. SUDHENDER KULKARNI, MEMBER (JUDL.)

AND HON’BLE SRI. DEEPAK KUMAR PANWAR, MEMBER (ADMN.)

O.A.NO.3784/2007 AND BATCH

Between :

B. Mangaiah and Others

Vs.

The Government of Andhra Pradesh,Rep., by its Principal Secretary, Home Department, Secretariat, Hyderabad.And Others

----o----

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(ORDER AS PER HON’BLE SRI SUDHENDER KULKARNI, JUDICIAL MEMBER ON BEHALF OF THE FULL BENCH)

---o---

The applicants in these OAs have assailed the legality and propriety

of the orders passed in pursuance to GO.Ms.No.610, dt.30.12.85, by

invoking the provisions of para-5(2)(c) of the Presidential Order. As a large

number of applications have been filed, the matter is placed before the

Full Bench, as per rules. That is how, the matters were heard and are

being disposed of by the Full Bench.

2. These OAs are filed aggrieved by the orders passed by the

Government contained in GO.Ms.No.610 dt.30.12.1985 and GO.Ms.No.674

dt.7.9.2007. In furtherance of the said GOs, various departments of the

State have issued orders repatriating non-locals to their respective cadres

(zones). The applicants are functioning in various capacities under the

jurisdiction and control of various departments of the State in as much as

20,000 employees were transferred in furtherance of Go.Ms.No.610

dt.30.12.1985 and Go.Ms.No.674 dt.7.9.2007. The applicants have filed

these OAs contesting the repatriation orders.

3. The genesis for issuing G.O.Ms.No.610 GAD dt.30.12.1985 is the

representation of Telangana Non-Gazetted Officers’ Union, wherein it was

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represented that certain allotments have been made in violation of the

provisions of the Presidential Order. In order to rectify the violations,

Government issued Go.Ms.No.674 GAD dt.7.9.2007. Thereafter,

respective departments have issued various GOs repatriating the persons

who were appointed in excess of their quota.

4. It would be appropriate to trace out the history behind issuance of

these impugned orders and the history has been succinctly traced out by

the Division Bench of the Hon’ble High Court in the matter of

GOVERNMENT OF ANDHRA PRADESH, REP. BY SECRETARY, SCHOOL

EDUCATION DEPARTMENT vs. P.VEMA REDDY reported in 2007 (4) ALD

209, which reads as follows:

....in brief, prefatory observations on the scope and purport of Article 371-D and the Presidential Order made thereunder.ARTICLE 371-D – CIRCUMSTANCES WHICH NECESSITATED ITS INTRODUCTION:(7) State action be it by legislation, plenary or subordinate, or by an executive order, which denies citizens equal opportunity and access to public employment on the ground only of place of birth or residence, would be invalid qua the provisions of Article 16(2) of the Constitution of India. Article 16(3) of the Constitution, which makes an exception to the limitations under Article 16(2), is confined to enabling Parliament to prescribe the qualification of residence in the State as a whole, and not to any part thereof. No

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legislation is permissible even by Parliament making the requirement of ‘residence’ in a part of the State for employment or appointment to a public office in that State. (A.V.S. Narasimha Rao Vs. State of A.P. [AIR 1970 SC 422], Ch. Raji Reddy Vs. A.P.S.R.T.C. rep. by its Regional Manager, Bhagyanagar Region [2003 (4) ALT 36].

(8) It is with a view to enable prescription of “residence” in a part of the State for employment or appointment to posts, and in matters of admissions in Universities or other educational institutions, that the Constitution, under Article 371-D, has made special provisions with respect to the State of Andhra Pradesh. It is necessary, in this context, to refer in brief to the events which led to the introduction of Article 371-D by the 32nd

amendment to the Constitution.

(9) The former State of Hyderabad comprised of three linguistic areas: Telengana, Marathwada and Karnatak. In 1919, the Nizam issued a Firman promulgating the Mulki Rules. The Nizam confirmed these Rules by another Firman issued in 1949. Those Rules provided, inter alia, 15 years residence in the State as an essential qualification for public employment. In 1955 the Rajpramukh, in exercise of his powers under the proviso to Article 309 of the Constitution, framed the Hyderabad General Recruitment Rules, 1955 in supersession of all previous rules on the subject. These rules prescribed a domicile certificate for appointment to a state or subordinate service, and

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the issue of such certificate depended upon residence in the State for a period of not less than 15 years.

(10) On November 1, 1956, on the States Reorganisation Act coming into force, the State of Hyderabad was trifurcated. The Telengana region became a part of the newly formed State of Andhra Pradesh, while Marathwada and Karnatak regions ultimately became parts of Maharashtra and Mysore (presently Karnataka) States. The State of Andhra Pradesh was constituted of portions of the territories drawn from the erstwhile States of Andhra and Hyderabad.

(11) Soon after formation of the State of Andhra Pradesh, Parliament enacted the Public Employment (Requirement as to Residence) Act, 1957 making special provision for requirement as to residence for public employment and brought it into force with effect from March 21, 1957. The constitutional validity of this Act was challenged by persons employed in the ministerial services of the Govt. of Andhra Pradesh in A.V.S. Narasimha Rao2and the Supreme Court held Section 3 of the Act, insofar as it related to the Telangana area, ultra vires Article 16 of the Constitution.

(12) Meanwhile, there were two widespread agitations, one in the Telangana area and the other in the Andhra region of the State between 1969 and 1972, creating political turmoil and virtually paralysing State administration. The political leaders of the State, considerably exercised over this situation, made concerted

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efforts to find an enduring solution to this problem. On September 21, 1973 a Six-Point Formula was evolved by the political leaders to provide for a uniform approach for promoting accelerated development of the backward areas of the State so as to secure balanced development of the State as a whole and to provide equitable opportunities to different areas of the State in matters of education and employment in public services. Point No.3, 4 and 5 thereof read as under:-(3). Subject to the requirements of the State as a whole, local candidates should be given preference to specified extent in the matter of direct recruitment to (i) non-gazeted posts (other than in the Secretariat. Offices of Heads of Department, other State level officers and institutions and the Hyderabad City Police) (ii) corresponding posts under the local bodies and (iii) the posts of Tahsildars, Junior Engineers and Civil Assistant Surgeons. In order to improve their promotion prospects, service cadres should be organized to the extent possible on appropriate local basis upto specified gazetted level, first or second, as may be administratively convenient.(4). A high power administrative tribunal should be constituted to deal with the grievances of services regarding appointments, seniority, promotion and other allied matters. The decisions of the Tribunal should ordinarily be binding on the State Government. The constitution of such a tribunal would justify limits on recourse to judiciary in such matters.(5). In order that implementation of measures based on the above principles does not give rise to litigation and consequent uncertainity, the Constitution should be suitably amended to the extent necessary conferring on the President enabling powers in this behalf.

(13) Implementation of this Six-Point Formula envisaged, inter alia, amendment of the Constitution conferring power on the President of India in order to secure smooth implementation of the measures based upon the Six-Point Formula without giving rise to litigation and consequent uncertainty. It was in pursuance of this requirement of giving effect to the six point formula that Article 371-D was introduced in the

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Constitution by the Constitution (Thirty-second Amendment) Act, 1973 which came into force with effect from July 1, 1974. (14) The Statement of Objects and Reasons for the Constitution (32nd Amendment) Act, 1972, reads thus:-

“When the State of Andhra Pradesh was formed in 1956, certain safeguards were envisaged for the Telengana area in the matter of development and also in the matter of employment opportunities and educational facilities for the residents of that area. The provisions of clause (1) of Article 371 of the Constitution were intended to give effect to certain features of these safeguards. The Public Employment (Requirement as to Residence) Act, 1957, was enacted inter alia to provide for employment opportunities for residents of Telengana area. But in 1969 [in the case of A.V. S.N. Rao v. Andhra Pradesh, (1969) 1 SCC 839: (1970) 1 SCR 115], the Supreme Court held the relevant provision of the Act to be unconstitutional insofar as it related to the safeguards envisaged for the Telengana area. Owing to a variety of causes, the working of the safeguards gave rise to a certain amount of dissatisfaction sometimes in the Telengana area and sometimes in the other areas of the State. Measures were devised from time to time to resolve the problems. Recently several leaders of Andhra Pradesh made a concerted effort to analyse the factors which have been giving rise to the dissatisfaction and find enduring answers to the problems with a view to achieving fuller emotional integration of the people of Andhra Pradesh. On September 21, 1973, they suggested certain measures (generally known as the Six-Point Formula) indicating a uniform approach for promoting accelerated development of the backward areas of State so as to secure the balanced development of State as a whole and for providing equitable opportunities to different areas of State in the matter of education, employment and career prospects in public services. This formula has received wide support in Andhra Pradesh and has been endorsed by the State Government.2. This Bill has been brought forward to provide the necessary constitutional authority for giving effect to the Six-Point Formula insofar as it relates to the provision of equitable opportunities for people of different areas of the State in the matter of admission to educational institutions and public employment and constitution of an Administrative Tribunal with jurisdiction to deal with certain disputes and grievances relating to public services, The Bill also seeks to empower Parliament to legislate for establishing a Central University in the State and contains provisions of an incidental and consequential nature including the provision for the validation of certain appointments made in the past. As the Six-Point Formula provides for the discontinuance of the Regional Committee constituted under clause (1) of Article 371 of the

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Constitution, the Bill also provides for the repeal of that clause”.

ARTICLE 371-D: ITS SCOPE:

(15) The primary purpose of introducing Article 371-D was twofold: (i) To promote accelerated development of the backward areas of the State of Andhra Pradesh so as to secure balanced development of the State as a whole, and (ii) to provide equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public service. To achieve this primary object, clause (1) of Article 371-D empowers the President to provide, by order, for equitable opportunities and facilities for the people belonging to different parts of the State in the matter of public employment and in the matter of education. Clause (2) is complementary to clause (1) and particularizes matters for which an order, made under clause (1), may provide. Sub-clause (c)(i) thereof enables the President to specify in his Order, the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made in the matter of direct recruitment to posts in any local cadre under the State Government or any cadre under any local authority. Sub-clause (c) further makes it clear that residence for a specified period in the local area, can be made a condition for recruitment to any such cadre. (Chief Justice of A.P. Vs. L.V.A. Dixitulu [1979 (2) SCC 34]; P. Sambamurthy Vs. State of A.P. [AIR 1987 SC 663].

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(16) Article 371-D is a special provision which makes a departure from the general scheme of the Constitution. (Govt. of A.P. Vs. A. Suryanarayana Rao [1991 (6) SLR 56 (SC)]. The area of departure cannot, therefore, extend beyond what is unmistakably and specifically delineated by the words employed therein or in the Presidential Order made thereunder. Article 371-D, in effect, enables the President to make an order enabling prescription of “residence” in a part of the State for employment or appointment to a public office in that State. Clause (10) of Article 371-D gives overriding effect, both to the provisions of Article 371-D and an order made by the President thereunder, over other provisions of the Constitution and any other law in force. Thus, prescription of “residence” in a part of the State of Andhra Pradesh is permissible, notwithstanding the prohibition under Article 16(2), provided such a prescription has been made under Article 371-D or the Presidential Order made thereunder. It is also necessary to note that the scheme of Article 371-D was held to be valid, intra vires the amending power of Parliament and as not to militate against the basic structure of the Constitution. (Dr. C. Surekha Vs. Union of India [AIR 1989 SC 44]; Fazal Gafoor Vs. Union of India [AIR 1989 SC 48]; B. Ramesh Vs. University of Health Sciences [1990 (2) alt 567]; and Devarakonda Rajesh Babu Vs. NIMS [1997 (6) ALT 290 (FB)]. The provisions of Article 371-D and the Presidential Order are

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insulated from any attack or challenge based on any other provision of the Constitution or any other law for the time being in force. It is also not open to challenge on the ground of violation of Part III or any other provision of the Constitution, (Dr. B. Sudhakar Vs. Union of India [AIR 1995 AP 86 (FB)], Dr. Fazal Ghafoor Vs. The Principal, Osmania Medical College, Hyderabad [1988 (2) ALT 227], since the Presidential Order has been given overriding effect. PRESIDENTIAL ORDER: SCOPE AND EXTENT OF THE POWER OF THE STATE GOVERNMENT THEREUNDER:

(17) In exercise of the powers conferred by clauses (1) and (2) of Article 371-D of the Constitution the President made, with respect to the State of Andhra Pradesh, the “A.P. Public Employment (Organization of Local Cadre and Regulation of Direct Recruitment) Order, 1975”, (hereinafter referred to as the Presidential Order), which was notified in G.S.R. 524(E) and came into force on 18.10.1975. Para 2(d) of the Presidential Order defines a local authority as not include any local authority which is not subject to the control of the State Government. Para 2(e) defines “local cadre” to mean any local cadre of posts under the State Government organized in pursuance of paragraph 3, or constituted otherwise for any part of the State. Under Para 2(2), the General Clauses Act, 1897 applies for the interpretation of the Presidential order as it applies for the interpretation of a Central Act. Para 3 relates to organization of local cadres and, under sub-para

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(1) thereof, the State Government was hitherto required, within a period of twelve months from the commencement of the Order, to organize classes of posts in the civil services and classes of civil posts under the State into different local cadres for different parts of the State to “the extent

and in the manner hereinafter provided”. The period of twelve months prescribed in Para 3(1) was enhanced to eighteen months vide G.O.Ms. No. 794 dated 12.11.1976 and twenty seven months vide G.O.Ms. No. 728 dated 27.10.1977. The period of twenty seven months prescribed in Para 3(1), for organizing different local cadres for different parts of the State, expired on 17.01.1978 and thereafter the State Government no longer had the power to organize different local cadres for different parts of the State. With a view to enable organization thereafter, of different local cadres for different parts of the State, a proviso was inserted to Para 3(1), as notified in G.O.Ms. No. 34 dated 24.01.1981, which enables the President, notwithstanding the expiration of the period specified in Para 3(1), to make an order, whenever he considers it expedient to do so, requiring the State Government to organize 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.

(18) While Para 3(1) ordained the State Government to organize classes of posts in the civil services of the State, and classes of civil posts under the State, into different local cadres for different parts of the State, the “extent” to

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which, and the “manner” in which, such classes of posts were required to be so organized was, specifically prescribed, to be as provided thereafter in the Presidential Order. Thus, not all classes of posts in the civil services of the State, and not all classes of civil posts under the State, were required to be organized into local cadres, and it was only to the extent provided for in the Presidential Order itself was the State Government required to so organize them into local cadres. Even under the proviso to Para 3(1), it is only to the extent the President considers it expedient that he may make an order requiring the State Government to organize any classes of posts in the civil services of the State, and classes of civil posts under the State, to be organized into different local cadres for different parts of the State.

(19) The object of organizing different local cadres for different parts of the State is clear from Paragraphs 4 and 5 of the Presidential Order. Under Para 4(1) persons holding posts, required to be organized into local cadres,were to be allotted to such cadres by the State Government in accordance with the principle and procedure specified in the Presidential Order. Under Para 5(1) each part of the State, for which a local cadre has been organized in respect of any categories of posts, shall be a separate unit for purposes of recruitment, appointment, seniority, promotion, transfer etc. Once a local cadre was organized under Para 3(1) each part of the State, for which such a local cadre was organized, was required to

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be treated as a separate unit and it is only from amongst persons allotted thereto was promotions to be effected and their seniority determined. In view of Para 5(1), a local cadre is a distinct and separate unit and, for matters prescribed therein, persons who do not belong to the said local cadre or those who belong to other local cadres cannot form part thereof. It is for this reason that, both in S. Prakasha Rao Vs. Commissioner of Commercial Taxes [AIR 1990 SC 997] and in M. Kesavulu1, the Supreme Court and the Division Bench of this Court held that a local cadre, once organized, cannot be meddled with.

(20) On an analysis of the provisions of the Presidential Order, it is clear that, having regard to historical compulsions which led to the introduction of Art. 371-D, the Presidential Order provides the framework for intra-state compartmentalization of certain posts under the rubric of local cadres, constituted for parts of the State, and protects the service conditions of members allotted or recruited to such local cadres. Local cadres are thus the result of historical compulsions engendered by economic and other differentia operating between parts of the State of Andhra Pradesh and of the felt grievances of residents of such parts of the State. It is well to remember the historical compulsions which led to the making of the Presidential Order, which is buttressed by the overriding effect given to the provisions of the Presidential Order not only against the exercise of majoritarian political and executive choices of the State, but is also made

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operative against any other provision of the Constitution of India (Article 371-D).

5. The contentions of learned counsel for the applicants

Sri.M.Surender Rao, Sri R.V. Mallikarjuna Rao, M.Ram Gopal Rao, Seena

Kumar, K.Narayana and P.Veerabhadra Reddy’s are:

(a) GO.Ms.No.610 dt.30.12.85 is contrary to Sub-Para-4, 5 and 6 of

Paragraph-4 of the Presidential Order. According to Paragraph-3,

the posts have been organized as district cadre, zonal cadre and

accordingly allotment is made under paragraph-4 of the Presidential

Order. The impugned GO.Ms.No.610 dt.30.12.85 intended to

review allotments of persons holding the posts as on the date of

issuance of the Presidential Order i.e., 18.10.75. Further, the

impugned GO is not in operation now since the last date for revision

of appointments is 30.6.86 which is over 20 years back. Therefore,

review of appointments made after issuance of the Presidential

Order is contrary to the provisions of Paragraph-4 and Paragraph-13

of the Presidential Order and the ambit and scope of the impugned

GO cannot be enlarged to override the provisions of the Presidential

order itself. Further, under Paragraph-13 of the Presidential Order,

the State has a limited power. The impugned GO meddles with

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organized cadres under the Presidential order which is not

permissible and the impugned GO is violative of the Presidential

Order.

(b) Telangana and other Service Associations have no locus to complain

violation of the Presidential Order. The Government lacks power

and jurisdiction to entertain any representation from the Service

Associations. Therefore, G.O.Ms.No.610, dt.30.12.85, has to be set

aside.

(c) The State cannot make inroads into Article 371(d) of the

Constitution of India wherein Sub-Clause-10 of the Article has an

overriding effect. President alone is empowered to make any

amendments to the Presidential Order.

(d) According to the Presidential Order, the appointments within the

meaning of local cadres can be categorized as : 1) persons who were

appointed before issuance of the Presidential Order i.e., 18.10.75 2)

persons appointed between 18.10.75 and upto organization of

certain posts into local cadres and 3) persons who are appointed

after organization of local cadres. Para-4 of the Presidential Order

deals with the persons who were appointed before the issuance of

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the Presidential Order and how to allot the existing persons holding

posts required to be organized into local cadres. Sub-Para-4 of Para-

4 of the Presidential Order says that any person aggrieved by an

order allotting him to any local cadre may submit a representation

to the State Government within a period of 60 days from the date of

communication of the order. According to Para-4(5) of the

Presidential Order, State Government shall on receipt of such

representation and after consultation with appropriate Committee

constituted under Sub-Para-3 make such order as it deems fit. It

was provided therein that whenever such order is likely to result in

the change of allotment of any other person, no such order shall be

made without giving any opportunity to other person to make a

representation. According to this para, there is no provision in the

Presidential Order to review the appointments made before the

Presidential Order. Therefore, the impugned action of reviewing

the appointments is not in accordance with para-4 of the

Presidential Order.

(e) According to Paragraph-13 of the Presidential Order, appointment

or promotion made after the commencement of the Presidential

Order or order made in pursuance of the provisions to Para-3 as the

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case may be, and before any local cadre is organized under the

provisions, this order or any order made in pursuance with the

provisions to Para-3, to any post which is required to be included in

such cadre shall be provisional and shall, within a period of 12

months, of such organization be reviewed and adjusted in

accordance with the provisions of the order. Therefore, as no

review was made to the appointments made between the periods

within the stipulated period of 12 months, no such review can be

taken up at this distance of time, since the posts were organized

into local cadre way back in the year 1976 itself.

(f) According to Para-8(2) of the Presidential Order, 70% of the posts to

be filled by direct recruitment at any rate in any local cadre under

State Govt. , comprising posts belonging to non-gazetted categories

other than those referred to in item(a ) of Sub-Para 1 and (b) in any

cadre under the local authority comprising posts carrying a scale of

pay, minimum of which are fixed pay which exceeds the minimum of

the scale of pay of a lower division clerk, but does not exceed

Rs.480/- per month or any amount corresponding to it as specified

in this regard in the successive revisions of pay scales granted by the

State Government from time to time shall be reserved in favour of

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local candidates in relation to local area in respect of such cadre.

The Government issued instructions for organization of local cadres

in GO.Ms.No.728 dt.1.11.1975. According to Para-4 thereof, a post

shall be deemed to be equivalent to lower than that of Lower

Division Clerk, if the scale of pay of the post or where the post

carries a fixed pay, such fixed pay is equal to or lower than the

minimum of the scale of Lower Division Clerk viz., 240 (vide

explanation to para 3(2) of the order). In every subsequent revision,

ever since the Presidential Order, the pay scale of SGT is higher than

the pay scale of LDC / Junior Assistant. Therefore, in accordance

with the orders in Para-8(2), the ratio of locals and open for

Secondary Grade Teachers and other equivalent categories and

higher categories is 70: 30. Further the Government issued memo

dt.11.12.2009 directing the Commissioner and Director of School

Education, Hyderabad to review the appointment of teachers for the

period from 18.10.1975 to 31.5.2001 in the ratio of 70:30 in favour

of local and open category, and candidates from 1.6.2001 onwards,

it shall be in the ratio of 80:20 which was in force during the

relevant period. However, the Government issued Go.Ms.No.674

dt.7.9.2007 to review the appointments of SGTs in the ratio of 80%

for the locals and 20% for the open which is contrary to the

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Presidential Order and also contrary to the decision of the Hon’ble

High Court reported in 1998 (5) ALT 772 (DB).

(g) The Government issued G.O.Ms.No.2 dt. 3.1.2002 incorporating

S.O.1219 E dt.13.12.2001, which is an amendment to the

Presidential Order. According to the said orders, in Sub-Para-1 of

Para-8, after item-B a new sub-para is added with effect from

1.6.2001 , which reads as follows:

(a) 80% of the posts to be filled by direct recruitment any time. a) in any local cadre under the State Government comprising posts belonging to the category of lower division clerk or a Category equivalent to or lower than that lower division clerk; and (b) in any cadre under a local authority comprising post carrying a scale of pay the minimum of which, or a fixed pay which does not exceed the minimum of the scale of pay or a lower division clerk, shall be reserved in favour of local candidates in relation to the local area in respect of such cadre.

“C(i) In any local cadre under the State Government comprising posts belonging to the categories of Teachers in the Andhra Pradesh School Education Subordinate Service and all other similar equivalent categories of posts of teachers under any Department of the State Government; and

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(ii) In any cadre under a local authority or under any such other management, as may be notified by the State Government from time to time carrying a scale of pay of pay equal to that of posts in the Andhra Pradesh School Education Subordinate Service shall be reserved in favour of local candidates in relation to the local area in respect of such cadre.”

(h) Amendments issued in GO.Ms.No.2 dt.3.1.2002 are only

prospective w.e.f. 1.6.2001 and therefore, selections made up to

31.5.2001 are only 70% for locals and 30% for open category.

However, Government issued GO.Ms.No.674 dt.7.9.2007 to review

the appointments of Secondary Grade Teachers in the ratio of 80%

for locals and 20% for open with effect from 1975 which is contrary

to the Presidential Order and also the law laid down by the Hon’ble

High Court. According to Para-11 of the Presidential Order, the

provisions of Presidential Order shall have effect not withstanding

anything contained in any statute, ordinance, rule, regulation or

other orders made before or after the Presidential Order in respect

of direct recruitment to posts under State Government or any local

authority. Therefore, the orders issued in Go.Ms.No.674

dt.7.9.2007 have no relevance and as such said orders are ignorable.

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(i) According to the procedure for selection of candidates in

accordance with GO.P.No.763 GAD dt.15.11.1975, the non locals can

be selected at any roster point to the extent of posts available for

open competition. However, the Govt. issued GO.Ms.No.8 GAD

dt.8.1.2002 modifying para-3 and 4 and substituting the following

paras:

“5. In the said orders, in the Annexure-I(5)

(i) For paragraphs 3 and 4 the following shall be

substituted namely:

“Para 3: The provisional list shall be divided into two

parts. The first part will comprise first 20% of the list.

The second part will comprises the balance 80%. In

case the provisional list does not contain any non-local

candidate in the second part, the list shall be approved.

Para 4: If however on the scrutiny referred to in para 3

it is found that there are non-local candidates in the

second part of the list, then these candidates shall be

removed and replaced by local candidates ensuring that

the rule of reservation is followed.

(ii) The illustrations thereunder shall be omitted.”

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From the above, it is clear that non locals can be selected for the

first 20% of the vacancies only w.e.f. 8.1.2002. These orders cannot

be applied for earlier selections. However, while repatriating

teachers, the Government have strangely followed subsequent

orders issued in GO.Ms.No.8 GAD dt.8.1.2002 even though the said

GO is not in operation at the time of selection and appointment of

the applicants. It would be relevant to note that accrued rights

cannot be divested by seeking to enforce amendments

retrospectively. Further, executive orders operate prospectively

and no retrospective effect can be given to executive orders issued

under Article 162 of the Constitution of India. The power to review

the allotments made should be traced to a relevant statutory

provision. Paragraph-13 of the Presidential Order confers a limited

power. However, a time limit of 12 months is stipulated to review

the allotments made initially. It is settled law that once the act or

statute prescribes the manner in which things have to be done, it

has to be done in that manner alone and not otherwise. Therefore,

the impugned action of the respondents in issuing the repatriation

orders giving effect to the amendments issued in GO.Ms.No.8 GAD

dt.8.1.2002 is highly illegal and arbitrary as the procedure of

selection cannot be amended retrospectively. On this point, the

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counsel have relied upon the Judgments of the Hon’ble Supreme

Court in the following cases:

(i) In the case of GOVERNMENT OF ANDHRA PRADESH vs.

MOHD. GHOUSE MOHINUDDIN AND OTHERS reported

in 2001 (8) SCC 416 (Civil Appeal No.1651 and 1652 of

1997)

(ii) In N.T.BEVIN KATH etc., vs. KARNATAKA PUBLIC

SERVICE COMMISSION AND OTHERS reported in AIR

1990 SC 1233.

(iii) A.A.CALTON vs. DIRECTOR OF EDUCATION

DEPARTMENT AND ANOTHER reported in 1983 (3) SCC

33.

(iv) In the case of B.PRABHAKAR RAO AND OTHERS vs.

STATE OF A.P. AND OTHERS ETC., reported in AIR 1986

SC 210 [A.P. Public Employment (Regulation of age of

Superannuation) Amendment Act 3 of 1985.]

(v) 2010 STPL (Web) 504 SC MD RAISUL ISLAM VS. GOKUL

MOHAN HOZARIKA

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(j) The applicants by virtue of their appointments in their respective

districts on the basis of rules and procedure of selection then in

vogue have acquired some vested rights in respect of their seniority,

cadre management, right to be considered for promotion to the

higher posts basing on their eligibility and qualifications. This

vested right cannot be unilaterally taken away on the basis of

subsequently amended rules by giving the same retrospective effect.

Moreover, the modified selection procedure in GO.Ms.No.8

dt.8.1.2002 and GO.Ms.No.124 dt.7.3.2002 are only executive

instructions and they cannot be operated retrospectively. Further,

the President of India is a delegate of Constitution in exercise of

power under Article-371(d). Article 371(d) gives the President the

power to issue orders from time to time for localization of posts of

various categories but does not empower President to bring such

orders into operation retrospectively. Since the Presidential Order

including amending orders if any create substantive rights and

limitations, the power to issue orders retrospectively cannot be

assumed or inferred when it is not provided for explicitly or by

necessary implications. The method of procedure which is issued

in implementation of the Presidential Order is executive in nature.

In the absence of statutory rules, it is settled law that executive

25

instructions prevail. Therefore, procedural instructions for selection

of candidates between locals and open category cannot be effected

retrospectively.

(k) According to the Presidential Order, various posts under State are

organized as district cadre, zonal cadre, multi zonal cadre posts. As

such, the holders of the posts like applicants are liable to be

transferred within the district. By virtue of the impugned orders,

the applicants are posted out of their local unit which is against the

statutory rules and no one can be posted outside the local unit

without his or her consent. Further the applicants are all selected

and appointed in the quota of 30% meant to be filled up by open

category. They are required to be retained in the unit where they

are appointed and they cannot be repatriated outside their unit of

appointment. The applicants have distinguished the Judgment

rendered in WP.No.23391/2009 and batch (D.V.V.N. MALLESHWARI

CASE).

(l) All selections to the posts under the State are made by duly

constituted Selection Committees and Andhra Pradesh Public

Service Commission. The State Government being an appointing

26

authority can review selections made by Selection

Committees/APPSC. The State Government, vide impugned orders

is trying to recast the selection list which was prepared by duly

constituted Selection Committees and AP Public Service

Commission. The Government vide GO.Ms.No.674 dt.7.9.2007 has

directed the departments of the State to review or recast the

selections made from 1975 onwards. In this regard, as per Article

320 (3) (a) of the Constitution, the State Public Service Commission

shall be consulted in all matters relating to method of recruitment to

civil services and for civil posts. The Government has also

constituted District Selection Committees through statutory rules to

select candidates for different categories of posts like teachers. The

Public Service Commission has made selections to more than one

unit of appointment. All the selections made by APSPSC are

multiple cadre recruitments. The procedure to select the candidates

to multiple cadres is prescribed in Para-6 of Annexure-III of

GO.Ms.No.763 dt.15.11.1975 which is not amended so far. If the

selections made to the multiple cadres are to be reduced or re-

casted, the merit list of all the candidates and the options exercised

by all the candidates are required. Therefore, the appointing

authorities and the departments cannot recast or review the

27

selections made by APPSC or DSCs without merit list. The

Government through an executive order vide GO.674 dt.7.9.2007

cannot direct the department to review or recast the selections

made by the APPSC or District Selection Committees and repatriate

the applicants by transfer to the other units of appointments which

is against law.

(m) In addition to the aforementioned contentions, it is further

contended that no notice and opportunity is given to the applicants

before passing the impugned orders. Therefore, the action is

violative of principles of Natural Justice.

(n) Furthermore, it is contended that the respondent State could not

have invoked Para-5(2)(c ) of the Presidential Order for passing the

impugned order.

6. Learned Counsel Mr. J.R. Manohar Rao, submits that the

Government issued G.O.Ms.No.610 dt.30.12.1985. In due implementation

of the said G.O., repatriation orders are passed in various G.Os.,

repatriating certain persons to their respective zones. There is no

grievance insofar as G.O.Ms.No.610 dt.30.12.1985 is concerned. After

28

more than 20 years, due to agitation by one of the political parties, the

Government issued G.O.Ms.No.674 dt.7.9.2007, according to which, the

persons who are appointed contrary to the Presidential Order have to be

repatriated. There is no dispute with regard to the said proposition. The

main grievance is regarding the procedure to be followed while deciding

the issue regarding recruitment of non locals. G.O.Ms.No.763

dt.15.11.1975 deals with the procedure to be followed in the matter of

selection of local candidates (for various categories). Subsequently, an

amendment was issued vide GO.Ms.No.8 GAD dt.8.1.2002 amending

Annexure-I of the said GO. Similarly, GO.Ms.No.124 dt.7.3.2002 was

issued amending Annexure-III of GO.Ms.No.763 dt.15.11.1975. The said

amendments are prospective in nature. The question of modifying the

selections made earlier to 2002 does not arise. The selections were made

and finalized basing on the procedure in force as on that day. Now the

Government issued GO.Ms.No.674 dt.7.9.2007, to follow GO.Ms.No.8

dt.8.1.2002 and GO.Ms.No.124 dt.7.3.2002 for reviewing the selections

made prior to 2002. According to GO.Ms.No.674 dt.7.9.2007, the

employees whose selections were irregular and contrary to the

Presidential Order shall be repatriated to their local cadres by transfer. It

was further stated that transfer shall be ordered in public interest by

protecting the seniority. If the person was found ineligible to be

29

appointed/selected, he has to be discharged from service. If the

Government feels to protect their interest, they can be transferred to

other units without protecting the seniority as those incumbents were not

eligible to be appointed according to the Presidential Order. Protection of

seniority will affect the rights of employees working in other units .

Therefore, the question of protection of seniority should not be permitted.

7. Learned Additional Advocate General Sri K.G. Krishna Murthy,

appearing on behalf of the State submitted that the Government with a

view to rectify the violations in implementation of the Presidential Order

in zone-V and VI, issued GO.Ms.No.610 dt.31.12.1985. The said GO came

to be issued when the violations were brought to their notice by various

service organizations. The GO contemplated repatriation of persons to

the respective local cadres for purpose of effectively implementing the

Presidential Order. The Government constituted One Man Commission

under Sri J.N.Girgilani, IAS (retired) for purpose of implementation of

Go.Ms.No.610 dt.31.12.85. The Committee conducted an in depth

enquiry into the issue and submitted its report to the State and State

decided to constitute Cabinet sub-committee vide Go.Ms.No.213

dt.4.8.2004. Besides this, a decision was taken to constitute an Officers

Committee for the said purpose vide G.O.Rt.No.1878. Subsequent

30

development of working on the report by group of Ministers and accepting

the report of the One Man Commission occasioned in GO.Ms.No.72

dt.4.3.2006. However, GO.Ms.No.116 was kept under abeyance and

GO.Rt.No.4173 dt.7.8.2006 was issued wherein a decision was taken to

appoint a Committee to examine certain items for early implementation of

GO.Ms.No.610. Thus, after continuous discussion, collection of basic data

regarding local candidates and their allotment as contemplated in the

Presidential Order, it has been decided in GO.Ms.No.674 dt.7.1.2007 to

review the appointments from 18.10.1975 and to repatriate non-locals

appointed in excess of percentage to the respective local cadres. This was

done in accordance with the procedure for filling up of vacancies as

substituted vide GO.Ms.No.8 dt.8.1.2002. Basing on this, the

consequential repatriation orders were issued after duly taking options

from those who are liable to be repatriated.

8. It is the contention of the State that exercise of power by State

Government is fully within the jurisdiction. The very purpose of issuing

GO.Ms.No.610 dt.31.12.85 was for rectifying the errors that crept in at the

time of implementation of the Presidential Order. That being the

situation, the mistakes are to be rectified by resorting to corrective

mechanism, failure of which would result in flouting the special provisions

31

contained in Article 311 (d) of the Constitution of India and Presidential

Order.

9. Learned AG further contended that Go.Ms.No.674 dt.7.9.2007

would protect the interest of the individuals who are now transferred

pursuant to the decision to implement the Presidential Order in its full

spirit. This factor is evident from Para-7 of the GO which clearly states

that after specific identification non locals who have been appointed in

deviation shall be repatriated to their respective local cadres by transfer.

The transfers so ordered shall be in public interest as provided in Para-5 (2)

( c) of the Presidential Order. In view of this specific provision, Para-8 goes

further to state that all the employees so transferred shall be eligible for

TA and protection of seniority as the transfers are made in public interest.

In view of this, the contention of the applicants that they suffered

prejudice cannot be accepted. When an action of the administrative

authorities does not visit the employees with civil consequences or any

way prejudices them, the principles of natural justice need not be

followed. Further, implementation of the Presidential Order which itself is

a special provision would have to gain paramount importance and the

individual interest will have to give way to the public interest. On this

point, following decisions are relied upon:

32

(a) UNION OF INDIA VS. MUSTAFA AND NAJIBAI

TRADING COMPANY reported in 1998(6) SCC 79.

(b) ALIGARH MUSLIM UNIVERSITY vs. MANSOOR

ALI KHAN reported in 2000 (7) SCC 529.

(c) COMPETITION COMMISSION OF INDIA VS. SAIL

reported in 2010 (10) SCC 744

10. Further learned Advocate General contended that

G.O.Ms.No.8 dt.8.1.2002 can be given retrospective effect. The

provisions of the GO would make it clear that Para-3 and 4 of the

Annexure to GO.Ms.No.763 dt.15.11.1975 have been substituted by

new provision. It is settled principle of statutory interpretation that

the substitutions made to the statutory instruments would have to date

back to the date of giving effect to the main provision. The

Go.Ms.No.763 dt.15.7.75 details the procedure now stands substituted

by the provisions of GO.Ms.No.8 dt.8.1.2002, as such the procedure of

appointments must be governed by GO.Ms.No.763 dt.15.7.1975 as

substituted by GO.Ms.No.8 dt. 8.1.2002 On this point, he submits

33

that he is fortified by the decision of the Hon’ble Supreme Court

rendered in the following cases:

(a) JOSE DA COSTA vs. BASCORA SADASIVA SINAI

NARCORNIM reported in 1976 (2) SCC 917.

(b) GURBACHAN SINGH VS. SATPAL SINGH

reported in 1990 (1) SCC 445.

(c) DIRECTOR OF HEALTH OF AP, HYDERABAD AND

OTHERS vs. DR.P.VEERABADHRA RAO AND

OTHERS reported in 2008 (4) ALT 744.

11. It is the further contention of the learned Advocate General that

law relating to interpretation of statutes is that provisions which have the

nature of supplying an obvious omission , clearing of doubts and curative

amendments would have to be considered as retrospective.(VIJAY vs.

STATE OF MAHARASHTRA reported in 2006 (6) SCC 289. The said

decision buttresses his contention as in the case on hand, the procedure

which was adopted results in the Presidential Order not being properly

implemented. This is an obvious error which frustrates the very scheme

of the special provision and this was sought to be cured by specifying a

34

procedure which would help in furtherance of the avowed object for which

the constitutional amendment was made by inserting Article 371 (d). This

came to be done by issuing GO.Ms.No.8 dt.8.1.2002, according to which

open category vacancies have to be filled up in the first instance which

may also include meritorious local candidates besides non local

candidates. In a given situation, it could also result in all the open seats

being filled up by meritorious local candidates. In contra distinction to

this procedure, filling up of local candidates at the first instance would

result in meritorious open candidates being left out of consideration and

that hits the equitable distribution contemplated in the Presidential Order.

The procedure substituted by G.O.Ms.No.8 dt.8.1.2002 which has cured

this malady and in accordance with Law is to be given effect from the date

on which the Presidential Order has been given effect to that is from

18.10.1975.

12. Learned Advocate General also contended that another principle of

interpretation consistently followed is that there is a general presumption

of prospectivity in favour of the legislative instruments unless expressly

provided that it would have prospective effects. Such a presumption is

liable to be made only in cases of statutes and amendments thereto which

are of substantive nature. Such a presumption does not exist in respect of

35

procedural amendments. Assuming for the sake of arguments that

amendment has to be presumed to be prospective, in the present

scenario, the amendment being only procedural in nature, such a

presumption cannot be pressed into service. On this point, he submits

that he is fostered by the decision rendered by the Hon’ble Supreme Court

in the case of ARAVIND KUMAR VS. STATE OF MADHYA PRADESH

reported in 2007 (12) SCC 681 and in the case of RAJENDRA KUMAR VS.

KALYAN reported in 2000 (8) SCC 99.

13. In fact, GO.Ms.No.2 dt.3.1.2002 and GO.Ms.No.8 dt.8.1.2002

through which the procedure and percentage in respect of local

candidates suffered a change was subject matter of litigation before the

Full Bench of this Tribunal in OA.562/2002 and batch. The Full Bench did

formulate the issue whether the amendments issued as per GO.Ms.No.2

dt.3.1.2002 and GO.Ms.No.8 dt.8.1.2002, are prospective or retrospective

in operation. However, the Full Bench did not consider the issue relating

to prospectivity of the GO, but held that as per the existing law, the ratio

of 80:20 between the local and non local candidates is to be followed.

The Full Bench further concluded that both GO.Ms.No.2 dt.3.1.2002 and

GO.Ms.No.8 dt.8.1.2002 were valid. A judicial review of the said order

was sought by filing Writ Petition, but even the Hon’ble High Court did not

36

deal with the issue relating to prospectivity or otherwise of the GO as that

was not the question before the Hon’ble High Court. Therefore, the

applicants cannot rely on the orders of the Full Bench. Another judgment

of the Full Bench dealt with the issue as to the selections which were made

by the District Selection Committee in 1998 need to be reviewed and the

percentage of local candidate that is liable to be treated as reserved is 80%

as against 70% followed then. This Full Bench also never dealt with the

question of operation of GO.Ms.No.8 dt.8.1.2002, more importantly as to

whether it was prospective or retrospective in its operation. In view of

this, the contentions of the applicants that the GO must be prospective in

operation cannot be accepted by this Tribunal.

14. For another contention that has been raised by the applicants that

the question of repatriation is alien to the facts of the present case as it is

not a case of deputation, learned AGP contends that this submission

cannot stand the scrutiny of this Tribunal as the allotments and

appointments have been made in respect of the posts liable to be thrown

open to all i.e., local and non local have not been filled up, on account of

which, the provisions of the Presidential Order and the purpose for which

it has been framed would get defeated. The corrective mechanism

adopted by the State Government cannot be legally assailed by the

37

applicants. Further, this aspect of the matter has been considered by the

Division Bench of the Hon’ble High Court in the case of GOVERNMENT OF

AP vs. B.V.N.MALESWARI in W.P.NO.23391/2009 and batch.

15. Leaned Advocate General further contended that impugned order

does not call for interference as it is a policy matter. The Courts’

interference with regard to the policy matters has been clearly spelt out in

following decisions:

(a) DILIP KUMAR GARG VS. STATE OF U.P. reported in

2009 (4) SCC 753.

(b) DELHI DEVELOPMENT AUTHORITY VS. JOINT ACTION

COMMITTEE, ALLOTTEE OF SFS FLATS reported in 2008

(2) SCC 672 AT PAGE 672

16. In view of the legal position, impugned orders have been passed as a

matter of policy to implement the mandates of the Presidential Order in its

true spirit. It does not fall within any of the permissible grounds on which

the said policy decision can be interfered with by this Tribunal in exercise

of its power of judicial review.

38

17. Learned Advocate General further contended that the main

contention of the applicants that on account of repatriation their

promotional prospects would be adversely affected, cannot be accepted

because it is settled proposition of law that mere chances of promotion

are not conditions of service and the fact that there is reduction in chances

of promotion do not tantamount to changing conditions of service. On

this point, he relies on the following decisions:

(a) STATE OF MAHARASTRA vs. CHANDRAKANTH

ANANTH KULKARNI reported in 1981 (4) SCC

130.

(b) R.S. DEODHAR vs. STATE OF MAHARASHTRA

reported in (1974) 1 SCC 317.

(c) STATE OF MYSORE vs. G.N. PUROHIT reported

in 1967 SLR SC 753.

(d) MOHD. SHUJAT ALI vs. UNION OF INDIA

reported in (1975) 3 SCC 76.

(e) MOHD.BHAKAR vs. Y. KRISHNA REDDY reported

in 1970 SLR 768 SC.

(f) RESERVE BANK OF INDIA vs. C.T. DHIGE

reported in (1981) 3 SCC 545.

39

(g) RESERVE BANK OF INDIA vs. C.N.

SAHASRANAMAN reported in (1986) Suppl SCC

143.

(h) PALURU RAMAKRISHNAIAH vs. UNION OF INDIA

reported in (1989) 2 SCC 541.

(i) K. JAGADEESAN vs. UNION OF INDIA reported

in 1990 (2) SCC 228.

18. Heard both sides. Perused the material on record.

19. After hearing the counsel appearing on behalf of the applicants and

the learned Advocate General, the following points arise for consideration:

“1. Whether Go.Ms.No.610 dt.30.12.1985 and

Go.Ms.No.674 dt.7.9.2007 in particular para-5 ,

violate the provisions of the Presidential Order

contained in Go.Ms.No.674 dt.20.10.1975?

2. Whether the amendments issued by way of

substitution as per GO.Ms.No.8 Edn., dt.8.1.2002 and

GO.Ms.No.124 dt.7.3.2002 are prospective or

retrospective in operation?

3. Whether the Government invoke the provisions

contained in Para-5 of the Presidential Order for

effecting transfers in furtherance of GO.Ms.No.610

40

dt.30.12.1985 and GO.Ms.No.674 dt.7.9.2007 and

whether the action of the respondents is in violation

of principles of Natural Justice?

4. Whether the action of the respondent

Government in issuing the repatriation orders

amount to tinkering with the rankings assigned by the

selecting authorities like Andhra Pradesh Public

Service Commission and District Selection

Committees?

5. Whether the vested right of promotion of the

applicants is sought to be taken away?

20. POINT NO.1 :

In order to decide the first point, it would be appropriate to extract

G.O.Ms.No.610 GAD dt.30.12.1985 and G.O.Ms.No.674 dt.7.9.2007.

G.O.Ms.No.610, dated 30.12.1985, read as follows:

“GO.Ms.No.610 Dated:30.12.1985 Read the following:

1. GO.Ms.No.674 G.A. (SPF.A) Dept., dated:20.10.1975.2. GO.P.No.728 G.A. (SPF.A) Dept., dated: 1.11.1975.3. G.O.P.No.729 G.A. (SPF.A) Dept., dated:1.11.1975.4. From the President, Telangana Non-Gazetted Officers

Union letter Dated:5.12.1985.. . .

ORDER:

The GO.1st read above, which is generally known as Presidential Order contains principles regarding Organization of Local Cadres allotment of personnel of the various departments to the various local cadres to method of

41

direct recruitment to the various categories, inter-local cadre in transfers etc., of the employees holding those posts. In the GOs 2nd and 3rd read above clarificatory instructions were issued regarding procedure for implementation of the various provisions of the Presidential Order.

In accordance with the provisions of the Presidential Order, local cadres have been organized to the various categories of posts in all Government Departments and allotment of personnel was made as per the guidelines contained in paragraph-4 of the said order.

In the representation 4th cited, the President, Telangana Non-Gazetted Officers’ Unions has represented that certain allotments have been made in violation of the provisions of the Presidential Order.

The Government after carefully examining the issues raised in the representation and after having vide ranging discussions with the representatives of the union have entered into an agreement with the Telangana Non-Gazetted Officers Union on 7.12.1985.

As per the terms of agreement the following Orders are issued:

“(1) The employees allotted after 18-10-1975 to Zones V to VI in violation of zonalisation of local cadres under the Six Point Formula will be repatriated to their respective zones by 31.03.1986 by creating supernumerary posts wherever necessary.

(2) In Respect of Jurala, Srisailam Left Canal and Sriramsagar Project Stage II, all the staff in the Non-Gazetted categories both technical and non-technical including Asst. Executive Engineers (formerly J.Es) coming under zonalisation of local cadres under the Presidential Order of 1975 who were posted to the Projects from outside zones V and VI after 1-3-1983, will be re-transferred to their respective zones and posted either in existing vacancies in supernumerary posts where vacancies are not available. Towards this the Government will also move the Government of India for seeking amendment to Government of India's notification GSR 525-E dated 28-6-1985 to give retrospective effect to this order with effect from 1-3-1983.

(3) (a) In respect of appeals filed against orders of allotment made under paragraph 4 of the Presidential Order of 1975 to the competent authority in time and where such appeals are still pending disposal, all such cases where details are furnished by the T.N.G.O's Union or individuals, shall be disposed of by 31.3.1986.

(b) As a result of the above exercise, consequential vacancies

42

if any, arising shall be filled up as per the procedure laid down under the Presidential Order.

(4) In respect of first level Gazetted posts in certain Departments which are outside the purview of the Presidential Order, action should be taken to review the question of inclusion of such posts also in the scheme of localization and the matter should be taken up review the question of inclusion of such posts also in the scheme of localization and the matter should be taken up with the Government of India for suitable amendment to the said order.

(5) The posts in Institutions/Establishment notified in GSR No. 526 (E) dated : 18-10-1975 shall be filled up by drawing persons on tenure basis from different local cadres on an equitable basis as per the orders issued in the G.Os. 3rd read above.

(6) Provision in Para (5)2(c) of the Presidential Order relating to inter-local cadre transfers shall be strictly implemented and such transfers shall b effected only under exceptional circumstances in public interest.

(7) Action will be initiated in the concerned departments in cases brought to their notice regarding bogus registration in Employment Exchanges.

(8) On receipt of complaints, if any, made by the TNGOs Union relating to irregular allotments of candidates particularly to Zone V and VI in the category of Village Assistants the concerned Department shall take up the matter with the A.P. Public Service Commissioner and take such measures as may be necessary to rectify the irregular allotments made if any.

(9) The possibility of allotting persons from within the same zone multi-zone against non-local vacancy in a particular local cadre will be examined in consultation with the APPSC.

(10) The T.N.GOs. Union will furnish to Government the service categories where for want of trained personnel, non local candidates are being appointed in zones. V and VI so that Government can provide training facilities in respect of such services/categories with a view to providing adequate opportunities for recruitment and appointment of local candidates in zones V and VI

(11) The Departments of Secretariat shall complete the review of appointments/promotions made under the Presidential Order as required under Para 13 of the said order, by 30.06.1986

(12) (a) Immediate action will be taken to finalise the common

43

Gradation list in respect of former Assistant Engineers (Present Dy. EES) as on 01.11.1956, following the prescribed procedure under the S.R. Act. 1956.

(b) In respect of former Junior Engineers (Present Asst E.E.s) the common gradation list published by the Government was quashed by the A.P. Administrative Tribunal and the Government had gone in appeal to the Supreme Court. Effective measures will be taken for the disposal of the matter before the Supreme Court, Expeditiously.

(13) The matter relating to allotment of 7 non-local personnel in the cadre of Inspector of Local Funds Audit belonging to zones 1 to IV, will be considered by the Department concerned keeping in view the provisions of the Presidential order.

(14) The question of repatriation of 13 Deputy Executive Engineers of the Public Health Department working in the city of Hyderabad to zones I to IV be considered by the Department concerned keeping in view the provisions of the Presidential Order.

G.O.Ms.No.674 GAD dt.07.09.2007 read as follows:

“GO.Ms.No.674 Date:7.9.2007

Read the following:

1. Circular Memo No.9543/MC/2007-11, General Administration (MC)

Department, dated 2.7.2007.

2. Circular Memo No.9543/MC/2007-13 , General Administration (MC)

Department, Dated: 2.7.2007.

ORDER:

The Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 provides for reservation in the matter of direct recruitment for Local Candidates in the different categories of post specified therein.

44

2. In 1985 Government had issued Go.Ms.No.610 in order to rectify certain deviations in the implementation of the provisions of the Presidential Order in Zones V and VI and again in 2001 Government constituted the One Man Commission (The Girglani Commission) to receive representations and sort out the anomalies in the implementation of the Go.Ms.No.610 General Administration (SPF-A) Department, dated 30.12.1985 and take up follow up action for the rectification of defects, anomalies and irregularities in the implementation of the Presidential Order and to suggest remedial actions in matters relating to the Public Employment and it submitted report on 2.9.2004. The recommendations of the Girglani Commission were considered and accepted by the Government and in pursuance thereof, Government directed that a review be conducted for direct recruitments made from 1975 onwards in order to ensure that the provisions of the Presidential Order, 1975 are strictly implemented.

3. Government had issued GO.Ms.No.763 General Administration (SPF-A) Department Dated.15.11.1975 laying down the procedure to be followed in the manner of selections of local candidates. Subsequently, Government revised the procedure of selection of local candidates and issued Go.Ms.No.8 General Administration (SPF-A) Department, dated 8.1.2002 and also decided that the revised procedure should be made applicable to all direct recruitments in the State. It was also noticed that in some direct recruitments, the reservation for locals was reduced to 70% as against the originally provided 80%.

4. The procedure required to be followed for filling up the posts for open competition, consistent with the provisions of the Presidential Order is that all the candidates will be considered adhering to the roster points as applicable and these should be filled first on the basis of merit. After filling these posts, the remaining posts are to be reserved for Local Candidates (80% , 70% or 60 % , as the case may) and shall be filled up exclusively by local candidates.

5. By following this procedure and adhering to the prescribed percentages, the review of appointments conducted has shown that the appointment of non-locals made in certain Units of appointment in the recruitment conducted in specified years has not been strictly in accordance with the percentages and procedures as prescribed.

6. Government have now decided that the non-local candidates appointed in deviation of the Presidential Order, as identified by the respective departments by reviewing the direct recruitments made from 1975 onwards be repatriated to their respective local cadres to which the candidates would otherwise belong to.

45

7. After such specific identifications, non-locals who had been appointed in deviation shall be repatriated to their respective local cadres by transfer. The transfers shall be ordered in public interest as provided under Para 5(2)(c ) of the Presidential Order.

8. The employees covered by such transfers shall be eligible for TA and protection of seniority since the transfers are made in public interest.

9. Illustration: In District Selection Committee 2000 recruitment for the post of Secondary Grade Teacher (SGT), Telugu medium, 1340 vacancies were notified. Out of these, 1185 vacancies were filled up which comprised of 834 vacancies for Government Schools and 351 vacancies for Zilla Parishad Schools. The vacancies meant for open competition in this selection are 167 for Government Schools and 75 for Zilla Parishad Schools. The remaining vacancies reserved for local candidates of Mahboobnagar District comprised of 667 vacancies for Government Schools and 276 vacancies for Zilla Parishad School. The list showing details of this selection is annexed to this order for the sake of clarity and uniformity.

10. It is advised that the respective Departments should prepare statements as shown in the illustration such that process can be implemented through transparent manner. It is further raised that the statements as shown in the illustration should be made available in the Web. Copies should be displayed in the Notice Board and also be made available to those who wish to have them.

11. The Ban on transfer of employees address are not applicable to transfers effected in pursuance of these orders, as per para 3(11) of Go.Ms.No.154 Finance (W&M) Department, Dated:4.7.2007.

12. The orders shall be issued by the concerned Secretary to government since it is an inter local cadre transfer.”

21. On a plain reading of the aforesaid GOs, it is seen that certain

allotments have been made in violation of the provisions of the

Presidential Order. There was hue and cry by the Telangana Non Gazetted

Officers Union and other Unions and the Government have issued

G.O.Ms.No.610 dt.30.12.1985, at the first instance and subsequently, One

46

Man Commission was constituted (Girglani Commission) to receive the

representations and to take up follow up action for rectification of defects

and anomalies and irregularities in the implementation of the Presidential

Order and to suggest remedial actions in the matter. The Committee had

wide ranging discussions and recommended that a review of the direct

recruitments made from 1975 onwards be conducted, in order to ensure

that provisions of the Presidential Order, 1975 are strictly implemented.

Thereafter, Go.Ms.No.674 dt.7.9.2007 was issued accepting the

recommendations and worked out modalities.

22. The basis for contention that the impugned GOs are violative of

Presidential Order is based on Paragraph-3 and 4 of the Presidential Order,

which reads as follows:

“3. Organization of local cadres: (1) The State Government

shall within a period of *twenty-seven months from the

commencement of this Order, organise classes of posts in the

civil services of and classes of civil posts under the State into

different local cadres for different parts of the State to the

extent and in the manner, hereinafter provided.

(*Vide GO.Ms.No.728, G.A. (SPF.A) Dept, dt.27.10.1977).

Provided that, notwithstanding the expiration of the said

period, the President may by order, require the State

Government, whenever he considers it expedient so to do, to

organise any classes of posts in the civil services of and clauses

47

of civil posts under the State into different local cadres or

different parts of the State.

(Vide GO.Ms.No.34 G.A. (SPF.A) Dept., date 24.1.81)

(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 organised 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

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 organised into a

separate cadre.

(5) Notwithstanding anything contained in sub-paragraph (3)

and (4), the State government may where it considers it

expedient so to do and with the approval of the Central

Government, organised the posts belonging to any of the

categories referred to therein, in any department, or any

establishment thereof, in two or more contigeous zones into a

single cadre.

48

(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 organised 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 organise into a separate cadre

and the posts so organised in pursuance of this paragraph or

Constituted otherwise and comprising posts belonging to the

category in that department.

(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.

(8) Where the Central Government is satisfied that it is not

practicable or expedient to organise local cadres under this

paragraph in respect of any non gazetted category of posts in

any department, it may, by notification, make a declaration to

that effect and on such declaration the provisions of this

paragraph shall not apply to such category of posts.

4.Allmotment of Persons: -

(1) Persons holding posts required to be organised into

local cadres shall be allotted to such cadres by the State

Government or any officer or authority authorised by it in this

behalf in accordance with the principles and procedure

hereinafter specified.

49

(2) In allotting persons to local cadres due regard shall

be had to all or any of the following, namely:

(a)the administrative needs of the posts in the local cadres:

(b)the need for the composition of balanced local cadres

with reference to age and seniority groups;

(c)the length of service of the persons concerned in the

part of the State for which the local cadre is organised.

(d)knowledge of the persons concerned of the language

spoken and the law in force in the part of the State for

which the local cadre is organised:

(e)preference of the persons concerned for allotment to

any local cadre, where feasible.

(3) The State Government may, in respect of different

departments and different categories of posts, constitute

committees to advice on the allotment of persons to local

cadres.

(4) Any person aggrieved by an order allotting him to

any local cadre may submit a representation to the State

Government within a period of sixty days from the Date of

communication of the order.

(5) The State Government shall on receipt of such

representation and after consultation with the appropriate

committee constituted under sub-paragraph(3) make such

order as it deems fit.

Provided that wherever such an order is likely to result in the

change of allotment of any other person, no such order shall

be made without giving an opportunity to that other person

to make a representation.

50

(6) Every order passed by the State Government under

sub-paragraph (5) shall subject to the provisions of clause (3)

of article 371-D of the Constitution of India, be final.”

23. The Pragraph-3 deals with organization of local cadres and the

paragraph-4 deals with allotment of persons. The impugned GOs in the

present batch of cases is neither concerning Organization of the local

cadre nor the allotment of personnel to the local cadres. Certain

aggrieved service unions felt that there is fallacy in implementation of the

provisions of the Presidential Order. GO.Ms.No.763 dt.15.11.1975

prescribed the procedure of selection of local candidates. If the said

procedure is followed where hundred posts were to be filled up and the

reservation in respect of locals is 80%, the procedure that has been

followed would stop at the merit list at 100. The test prescribed in

GO.Ms.No.763 dt.15.11.75 would apply, it is found to satisfy the

requirement as contemplated in Annexure-I of the said GO, the list would

become final and the appointments would be made as per the said list.

The reasoning of this procedure is that in a given case, persons who are

non locals are found in the merit list commencing from 80 to 100, they

would have to be selected. By virtue of this procedure, the non-locals

who cannot be said to be meritorious would still be appointed and thereby

the locals in whose favour the Presidential Order provides for a reservation

51

would be denied the benefit of the same, this would be violative of the

same. If the Presidential Order is followed strictly for achieving the

purpose for which it has been made, local candidates ranking from 101 to

120 in the merit list would be deprived of being appointed and in other

procedure for the purpose of appointment would render the Presidential

Order nugatory and this fallacy has been corrected by issuing the

impugned orders. In fact, the appointments which were made right from

1975 were not in consonance with the letter and spirit of the Presidential

Order. The error which has crept-in in the implementation of the

Presidential Order is being rectified and the exercise of power by the State

is not at all contrary to the provisions of the Presidential Order.

24. It is a settled proposition of law that a common merit list will have to

be prepared irrespective of caste, community, creed or region, from which

a person comes from, would have been accommodated in the general

merit quota. It has been held that merely because persons belonging to

such streams earn a superior merit, the percentage of reservation would

not be diminished. The contentions of the applicants that GO.Ms.No.763

would satisfy that 80% be filled up first is a statement without any legal

basis and a reading of the said GO would make it very clear that that

contention is not at all tenable. In support of this contention, Sri Mr.

52

Surender Rao, Counsel, relied upon the Judgment of the Hon’ble Single

Judge in the case of PADMANABHA REDDY VS. STATE reported in AIR

1984 AP 129 and argued that this Judgment would be the last word on the

controversy, which reads as follows:

“16. Now, the Presidential Order defines local area and local

candidates and also provides for reservation in favour of local

candidates, at the same time providing for the President,

requiring the State Government to issue appropriate directions

for the purpose of giving effect to the Presidential Order. The

State Government has, accordingly, issued the directions

contained in G.O.P.No.646, dated 10.7.1979. These

instructions not only reiterate the definitions of local area and

local candidates, but also prescribe the “manner of

implementation of reservation in favour of local candidates

provided in the Presidential order”. Annexure-III to

G.O.P.No.646 expressly sets out the manner of implementation

of reservation. It must, therefore, follow that these

instructions contained in Annexure-III must prevail, and must

be followed even in case the Rules of Admission contained in

G.O.Ms.No.549 say to the contrary, in any respect. The fact

that the Rules of Admission contained in G.O.Ms.No.549 are

statutory, has no relevance, because these Rules must also be

read consistent with, and subject to the Presidential Order, and

the directions issued by the State Government in pursuance

thereof, so long, of course, as the directions given by the State

Government are within the four-corners of the Presidential

Order. In the face of the instructions contained in Annexure-III

to G.O.P.No.646, it is not possible to say that the method

suggested by Mr.H.S.Gururaja Rao should be followed in the

matter of making selections.

53

17. Mr. Gururaja Rao sought to contend that the State

Government is empowered to give directions only in the matter

of implementation of reservation in favour of local candidates,

but is not empowered to lay down how the 15% of the un-

reserved seats should be filled up and that, therefore, the

directions of the State Government in Annexure-III cannot

apply in the matter of filling up the said 15% seats. A

moment’s scrutiny would expose the fallacy in the argument.

What the State Government has done is to specify the manner

in which the reservation in favour local candidates should be

worked out; the State Government has not purported to lay

down the method of filling up the 15% unreserved seats. It is

not also suggested that, by following the formula contained in

Annexure-III, the rule of reservation in favour of local

candidates is in any manner being defeated, or curtailed.”

25. We have perused the Judgments. The States contention now made

was already rejected by the Hon’ble High Court dealing with the AP

Educational Institution (Regulation of Admissions) Order, 1974. The said

judgment is not at all applicable to the facts and circumstances obtaining

in the present case. The contention before the Court in that case was that

the rules made regarding admission contained in GO.Ms.No.549 would

have to be followed and the procedure as contemplated in GO.Ms.No.646

is not in consonance with the statutory rules of admission. Under such

circumstances, the Hon’ble High Court held that the orders passed in

pursuance of the Presidential Order deal with admissions will have to

54

prevail. The supremacy of the Presidential Order was upheld. The

validity of GO.Ms.No.646 was not adjudicated. Therefore, the said

judgment is of no avail to the applicants.

26. The applicants contended that the impugned GOs are issued

without any direction either from the Central Government or the

President. It is also contended that following of GO.Ms.No.763 dt.15.11.75

was not in proper implementation of the Presidential Order, was not even

the finding of any judicial forum as well, and as such there was no

necessity to change the procedure established in the said GO. The

scheme of the Presidential Order was also sought to be pressed into

service to state that the State had no role to play except in consonance

with the directions of either the Central Government or the President.

This argument seems to be not a plausible one. It is an admitted fact that

Presidential Order has neither prescribed any procedure for ensuring the

reservation contemplated therein is correctly implemented nor did it

authorize any agency to do that. Obviously, the Presidential Order has not

thought it necessary to do so as it deals with the recruitment to the Civil

Services of the State. The Presidential Order has left the power to the

State to decide and workout the modalities of recruitment and to

implement the Presidential Order in its true letter and spirit. Therefore,

55

the contention that GO.Ms.No.763 is issued without the directions of the

President and same cannot be said to be the part of the Presidential Order,

does not hold water.

27. Another contention is also raised that since the President has not

required the State to issue direction as contemplated under Para-10,

GO.Ms.No.763 itself would not have been issued by the State

Government. This argument virtually cuts through the main argument

that appointments made in accordance with GO.Ms.No.763 have attained

finality and it cannot be reviewed now. Since this argument would run

contrary to the main argument , no credence can be given to this point.

28. We have perused the following judgments relied upon by the

learned counsel for the applicants on this point:

(a) In the case of S.PRAKASHA RAO VS. COMMISSIONER

OF COMMERCIAL TAX AND OTHERS reported in AIR

1990 SC 997.

(b) In the case of M.KESHAVULU vs. STATE OF A.P.

reported in 2003 (6) ALD 522.

(c) In the case of GOVERNMENT OF ANDHRA PRADESH

vs. P. VEMA REDDY reported in 2007 (3) ALT 287.

56

(d) In the case of V.JAGANNADHA RAO AND OTHERS vs.

STATE OF AP AND OTHERS reported in AIR 2000 (2) SC

77.

(e) In the case of M. SHYAM SUNDER vs. STATE OF A.P.

TR & B DEPARTMENT reported in 2001 (6) ALD 87.

29. The Hon’ble Supreme Court has decided the case of S.PRAKASHA

RAO VS. COMMISSIONER OF COMMERCIAL TAX AND OTHERS reported in

AIR 1990 SC 997 in the back drop of factual aspects obtaining in that case

and held as follows:

6. Thus, it is seen that pursuant to the power given

under cls . (1) & (2) of Art. 371-D the President had issued

the order organising local cadres and zone consists of

Adilabad , Warangal, Karimnagar and Khammam revenue

districts. It is the local area for the local cadres. The post of

the Junior Assistant is the district cadre post and the post of

Senior Assistant and Assistant Commercial Taxes Officers, etc.

are the zonal posts. The State Government is empowered

under the Presidential Order to organise the local cadres

within a period of twelve months from October 20,

1975. In pursuance thereof the State Government in

Commercial Taxes Department issued order G.O.Ms. No. 581

dated May 24, 1976 organising zones for the purpose

of Commercial Taxes Department, namely, Visakhapatnam,

Kakinada, Krishna, Guntur, Triputhi, Karnool,

Warangal, Hyderabad - 1 and Hyderabad-II.

Warangal zone consists of revenue districts of Adilabad,

57

Karimnagar, Warangal and .Khammam. Thus, the Warangal

zone of Commercial Taxes Department for the purpose of

recruitment, seniority, promotion, transfer, etc. of local

cadres is co-terminus with the zone V of the Presidential

Order. The Junior Assistant in each revenue district in

Warangal zone is a separate district post , but for

the purpose of promotion to the post of Senior

Assistants and Assistant Commercial Taxes Officers, which

are zonal posts common seniority of the Junior

Assistants, Senior Assistants working in all the four

revenue districts shall have to be maintained and promotions

made in accordance with Ministerial Service Rules or the

Commercial Taxes Subordinate Service Rules issued under

proviso to Art. 309 of theConstitution as the case may be.

It would be subject to rule of reservation for local

candidates as adumbrated in para 8 of the Order and

the general rule of reservation made in Rule 22 in Andhra

Pradesh State and Subordinate Service Rules.

7. It would appear from the record that the

Government intended to reorganise, for the purpose of

efficient administration of the Commercial Taxes

Department and create separate divisions within the

zones and issued through G.O.Ms. No. 1900 dated

December 22, 1981 carving out Adilabad and Karimnagar as

Adilabad division and Warangal and Khammam as

Warangal division with the administrative control

of the concerned Dy. Commissioner of Commercial

Taxes at Adilabad and Warangal. As a follow up action

options have been called for from the employees and

they have been allotted in G.O.Ms. No. 1648 dated

November 22, 1982 to the respective divisions. It is not

disputed that the allotment and transfer were not made

58

in terms of Para 4 of the Order. As stated earlier this action

had given rise to the above . Representation Petitions and

the orders passed by the Tribunal and the results ensued

thereunder.

8. Dr. L.M. Singhvi, the learned Senior Counsel for the

appellants, contends that paragraph 3(7) of the Order

empowers the State Government to create a zone within the

Warangal zone for the purpose of recruitment, seniority and

promotion. The State Government has inherent power

in that regard. There is no express prohibition in that

regard in the order. The phrase 'or constituted otherwise'

engrafted in the definition of local cadre in paragraph 2(e)

read with paragraph 3(7) gives ample power to the State

Government to organise any local cadre within the

zone for the Commercial Taxes Department. The

action thus, taken by the State Government is clearly within

its power. The contra finding recorded by the

Tribunal is illegal. He placed strong reliance on a decision

of a single member Tribunal made in R.P. No. 101 of 1982

and batch dated April 1, 1982. He further contended that

in maintaining harmony in Centre-State relationship, the

State Government shall continue to have its inherent

power to organise its local cadre to meet the exigencies

of its administrative needs. The prior approval or concurrence

of the Central Government is redundant. We find no force in

these contentions. It is already seen that in exercise of the

power under paragraph 3(1) of the Order the State

Government shall, within a period of twelve months from the

date of the commencement of the Order, organise class or

classes of posts in the civil services of, and class or classes

of civil posts, under the State into different local cadres for

different parts of the State in the manner therein provided.

59

It is already seen that through G.O. Ms. No. 581, the

State Government in fact had organised the

Commercial Taxes Departments by constituting different

local cadres and Warangal zone comprised of the four

revenue districts, namely, Adilabad, Karimnagar, Khammam

and Warangal was declared as local area for local cadres

of the Department. Having done so, the question

emerged whether the State Government has further power to

reorganise the local cadre within the zone. In our

considered view, we have no hesitation to hold that once the

State Government has organised the class or classes of

posts in the civil services of and class or classes of civil posts,

under the State as local cadres, it ceases to have any power to

bifurcate or reorganise a zone within a zone, cadre or cadres

therein. In exercise of the power under proviso to paragraph

3(1), it is for the President notwithstanding the expiry of the

period of twelve months prescribed in sub-paragraph (1) of

paragraph 3, by an order require the State

Government whenever he considers it expedient so to do to

have the power under paragraph 3(1) exercised. Thereby, it

is clear that the State Government shall have to place

necessary material before the President; the President shall

consider that it is expedient to organise any class or

classes of 573 posts in the civil services of and class or classes

of civil posts, under the State into a further local cadre within

the local cadre in the zone already prescribed and to pass an

order in that regard requiring the State Government to so

organise it. It is made clear that for the purpose of efficient

administration or convenience, the State Government may

create division/divisions within the local area or local cadre.

But for the purpose of recruitment, seniority, promotion,

discharge, etc. the local cadre once organised under para

60

3(1) shall be final and continue to be operative until action is

taken under proviso to subparagraph (1) of paragraph 3 of

the Order. When we enquired the learned counsel for the

State, Shri Madhava Reddy candidly conceded that no order

of the President, as provided under the proviso, was made.

Therefore, the action taken by the State Government in

issuing G.O.Ms. No. 1648 dated November 20, 1982 is clearly

illegal and invalid contravening the proviso to sub-

paragraph (1) of paragraph 3, undoubtedly it contravened

para 4 of the Order.”

30. It was contended that for promotion from the post of Senior

Assistant to the post of Assistant Commercial Tax Officer, zonal seniority of

Warangal local area comprising of Warangal, Khammam, Karimnagar and

Adilabad is the criteria. Adilabad Division consisting of Adilabad and

Karimnagar districts of Commercial Tax department cannot be treated to

be a zone and divisional seniority prepared by the department is bad in

law. The Hon’ble Supreme Court has held that creation of a Division and

maintaining separate seniority of Junior Assistants and Senior Assistants

for Adilabad and Warangal Division are illegal and contrary to the orders

issued in GO.Ms.No.581 and the AP Public Employment (Organization of

local cadres and Regulation of Direct Recruitment) Order, 1975. The State

had attempted to meddle with organized zonal cadre and intended to

carve out zone within a zone. Under these circumstances, the Hon’ble

Supreme Court held that State has no power to meddle with the posts

61

organized under the Presidential Order. No such attempt is made in the

case on hand.

31. The Government of AP intended to bring out a unified cadre of

teachers in the government, Mandal Parishad and Zilla Parishad schools.

In fact, in the earlier round of litigation i..e, in the case of M.KESHAVULU

vs. STATE OF A.P. reported in 2003 (6) ALD 522 and in the case of

GOVERNMENT OF ANDHRA PRADESH vs. P. VEMA REDDY reported in 2007

(3) ALT 287, the Hon’ble High Court interfered with the matter and the

matter is carried in appeal to the Hon’ble Supreme Court and pending

before the Hon’ble Supreme Court. The Hon’ble High Court has struck

down Act.27/2005 which intended to integrate cadres of teachers and

other employees in Government, Mandal Parishad and Zilla Parishad

schools.

32. It further held that Section 3(1) and 4(1) of the Act 27/2005 in effect

abolish local cadres through a circuitous process of abolishing cadres

which were organized into local cadres and in effect abolishing the local

cadres themselves.

62

33. These Judgments cannot be of any relevance. It is a settled principle

in the law of precedents that judgments are to be read in the context in

which they have been rendered. Phrases and sentences cannot be picked

up and read in isolation. Thus, these two Judgments would also be of no

avail to the applicants.

34. Further, the applicants placed reliance on the decision in the case of

V.JAGANNATH RAO AND OTHERS vs. STATE OF AP AND OTHERS reported

in AIR 2000 (2) SC 77 wherein it has been held as follows:

“14. In Sadanandam s case, while considering the legality

of amended provisions of the Rules framed by the State

Government and in sustaining the same, this Court was of the

opinion that as the aforesaid rules had been framed under

Section (3) of the Andhra Pradesh Ordinance 5 of 1983 read

with paragraph 5(2)(a) of the Presidential Order, the

conclusion of the Tribunal in striking down the rule is

erroneous. The Court was of the opinion that mode of

recruitment and category from which the recruitment to a

service should be made are policy matters exclusively within

the purview and domain of the executive and it would not be

appropriate for judicial bodies to sit in judgment over the

wisdom of the executive in choosing the mode of recruitment

or the categories from which the recruitment should be made.

In our considered opinion, both the aforesaid reasons do not

constitute a true interpretation of the provisions of the

Presidential Order. At the outset, it may be noticed that Article

371-D (10) of the Constitution unequivocally indicates that the

63

said Article and any order made by the President thereunder

shall have effect notwithstanding anything in any other

provision of the Constitution or in any other law for the time

being in force. Necessarily, therefore, if it is construed and

held that the Presidential Order prohibits consideration of the

employees from the feeder category from other units then such

a rule made by the Governor under the proviso to Article 309

of the constitution will have to be struck down. Then again in

exercise of powers under paragraph 5(2) of the Presidential

Order if the State Government makes any provision, which is

outside the purview of the authority of the government under

para 5(2) of the Order itself, then said provision also has to be

struck down. Having construed the rules framed by the

Governor under proviso to Article 309 of the Constitution from

the aforesaid stand point, the conclusion is irresistible that the

said rule to the extent indicated by the Tribunal is

constitutionally invalid and its conclusion is unassailable. In the

case in hand, the impugned provisions do not appear to have

been framed in exercise of powers under paragraph 5(2) of the

Presidential Order and as such the same being a rule made

under proviso to Article 309 of the Constitution, the

Presidential order would prevail, as provided under Article 371-

D (10) of the Constitution. Even fit is construed to be an order

made under Paragraph 5(2) of the Presidential Order, then also

the same would be invalid being beyond the permissible limits

provided under said paragraph. In this view of the matter, the

Tribunal rightly held the provision to the extent it provides for

consideration of employees of the Factories and Boilers units to

be invalid, for the purpose of promotion to the higher post in

the Labour unit and as such we see no justification for our

interference with the said conclusion of the Tribunal and the

earlier judgment of this Court in Sadanandam s case(supra)

64

must be held to have not been correctly decided. As a

consequence, so would be the case with Satyanarayana Rao s

case (supra).

15. Notwithstanding our aforesaid conclusion, it would be in

the interest of the administration to have a channel of

promotion for every service, so as to avoid stagnation at a

particular level, subject however to the condition that the

incumbents of a service are otherwise qualified to shoulder the

responsibilities of the higher promotional post. The

appropriate authority of the Government, therefore, should

bear this in mind and consider the feasibility and desirability of

continuing the supernumerary posts already created in the

Boilers and Factories Department on a permanent basis, so that

the employees from the lower echelon in the said Department

have a promotional channel or, to make suitable promotional

avenue at least upto some level, so that there would not be any

discontentment amongst the employees in the concerned

Department.

The appeals are without any merit and are accordingly

dismissed.”

35. In the above case, the Hon’ble Supreme Court was considering the

validity of the rule which provided for transfer of employees from the

subordinate officers to the Heads of the Departments under the rule which

contemplate promotion in the form of appointment by transfer. It was in

that background, the Hon’ble Supreme Court held that giving a wider

meaning to the term transfer as contained in Para-5 (2) would be

65

rendering the Presidential Order nugatory. This is not the position in the

present case.

36. The matter in the case of SHYAM SUNDER vs. STATE OF AP. TR & B

DEPARTMENT reported in 2001 (6) ALD 87 pertains to the question of

determination of seniority of the Engineers in the AP Roads and Buildings

Engineering Service, wherein it has been held as follows:

“42. FURTHER more, those DEEs belonging to other zones who

want to be impleaded in these Writ Petitions were not before

the tribunal and they did not choose to file any such petitions

before the tribunal. This is another distinction from Vittals case

(supra) and this case. Be that as it may we allowed the learned

counsel for the proposed respondents to make their

submissions and also file written submissions. We have

considered these submissions and they have no bearing on the

points we have framed for consideration. We accordingly

decide Point No.1 in favour of the writ petitioners and against

the proposed respondents holding that the proposed

respondents are neither necessary parties nor proper parties.

The miscellaneous petitions, filed for impleadment are

dismissed. In Re Point Nos.2 and 4:

43. WHETHER the government is not justified in reviewing the

seniority list of DEEs in Zones V, VI and VII, issued in

G.O.Ms.No.314, dated 29.11.1994 purporting to act on the

directions issued by the Division Bench of this court in

W.P.No.5834 of 1994?

66

44. WHAT is the scope and power of para 13 of A.P. Public

Employment (Organisation of Local Cadres and Regulation of

Direct Recruitment) Order, 1975 and Rule 36 of the A.P. State

and Subordinate Service Rules?

45. THESE two points can be considered together. Before the

tribunal it was contended on behalf of the Government that

earlier on a premise known that the cadre strength in zones V,

VI and VII have not been properly filled G.O.ms.Nos.259 and

260 and G.O.Ms.No.18 were issued. These two orders were

upheld by the Tribunal. Though the S.L.P. against that

judgment was dismissed, no order on merits was passed and

therefore, the Government has power to review the panels,

which was already modified/reviewed in the two government

orders. It was also the submission that final seniority list in

G.O.Ms.No.314 was issued based on the earlier two

Government orders which were not correct. Therefore, after

the judgment of the Full Bench in O.A.No.41796 of 1997 and

batch which was modified by this court in W.P.No.5834 of

1998 the government thought it fit that it is now permissible to

rectify the mistakes and review/revise the seniority list which is

not illegal nor contrary to Special rules or general rules. The

same position is reiterated before us. Sri P.Balakrishna Murthy,

however, submits that G.O.Ms.Nos.259 and 260 were issued in

exercise of power conferred in paragraph 13 of the Presidential

Order and therefore it is not permissible for the government to

resort to review for second time. It is further contended that as

the Tribunal has confirmed the validity of the G.Os.259 and 260

it is not open to the Government to again revise the final

seniority list issued in G.O.Ms.No.314 dt.29.11.1994.

46. THE seniority list of DEEs from 1.4.1965 to 31.12.1982 and

thereafter till 31.12.1987 has been subject-matter of litigation.

67

At no point of time till issuance of G.O.Ms.No.314 there was

seniority list, which could be called final. When the matter was

pending at various stages of litigation, the Presidential Order

came into force. As noticed supra clause(10) of Article 371-D of

the Constitution of India gives an overriding effect to Article

371-D as well as “any order made by the President

thereunder”. Therefore, the Presidential Order insofar as

recruitment, appointment, discharge, seniority, promotion and

transfer and in respect of such other matters, as may be

specified by the State Government, has overriding effect.

Indeed, para 5 of the Presidential Order says that each part of

the state for which local cadre has been organized shall be

separate unit for the purpose of conditions of service referred

to herein. As a necessary corollary, even in matters of

appointment, promotion and seniority, Presidential Order

alone shall prevail. The Special Rules had not contemplated

the method and manner of preparing the seniority list and only

general rules deal with the same. When there is overlapping

between the General rules and the Presidential Order, the

presidential Order alone shall have to be given full effect.

47. AS required under para 3 of the presidential Order, the

State Government within a period of 18 months from the

commencement of the Presidential Order i.e., from 18.10.1975

shall have to organized classes of posts in the civil service into

different local cadres in different parts of the State. If the local

cadres are not organized under para 3 of the Presidential Order

within a period of 18 months, then what would happen? The

proviso to para 3 states that notwithstanding the expiration of

the period of 18 months, the President may require the State

Government to organize any classes of posts into civil services

and classes of civil posts in the State into different local cadres

for different parts of the State. This aspect of the matter was

68

considered by a three-Judge Bench of the Supreme Court in

Prakash Rao v. Commissioner of Commercial Taxes. The

relevant observations are as follows:….. In our considered

view, we have no hesitation to hold that once the State

government has organized the class or classes of posts in the

civil services of and class or classes of civil posts, under the

State as local cadres, it ceases to have any power to bifurcate

or reorganize a zone within a zone, cadre or cadres therein. In

exercise of the power under proviso to paragraph 3(1), it is for

the President notwithstanding the expiry of the period of

twelve months prescribed in sub-paragraph (1) of paragraph 3,

by an order require the State Government whenever he

considers it expedient so to do to have the power under

paragraph 3(1) exercised. Thereby, it is clear that the State

Government shall have to place necessary material before the

President; the President shall consider that it is expedient to

organize any class or classes of posts in the civil services of and

class or classes of civil posts, under the State into a further local

cadre within the local cadre in the zone already prescribed

and to pass an order in that regard requiring the State

government to so organize it. It is made clear that for the

purpose of efficient administration or convenience, the State

government may create division/divisions within the local area

or local cadre. But for the purpose of recruitment, seniority,

promotion, discharge etc., the local cadre once organized under

para 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 Order.”

37. Though an issue as to what is the scope and extent of power under

paraghraph-13 of the Presidential Order was framed, this case will not be

69

applicable as it is not a case of State Government that the appointments

made from 18.10.75 were provisional. Thus, this Judgment cannot be

pressed into service when factually this Tribunal is called upon to deal with

an issue totally different from what was considered by the Division Bench

of the Hon’ble High Court. It is the case of all the parties here-to that

Presidential Order is supreme. Therefore, the aforesaid Judgments which

were rendered in factually different context cannot be made applicable to

the present case.

38. The next contention that para-8 of the Presidential Order cannot be

imported in para-5 is also not acceptable. Paragraph-5 would deal with

the consequence of being appointed to a local cadre and transfer of

persons from one cadre to the other, whereas para-8 deals with

reservation to the local candidates. The respondents have invoked

paragraph-5 in the present case for the purpose of ensuring that the

Presidential Order is properly implemented in the letter and spirit of the

Presidential Order. Reservation is undoubtedly provided in para-8 but

the modalities for ensuring that is made in consonance with the

Presidential Order and any order issued for the purpose of setting right the

maladies that occurred in implementation of the same would undoubtedly

be in the public interest. As per Para-5(2)(c ) of the Presidential Order,

70

transfer of persons from one local cadre to another local cadre is

permissible. This power vested in the said clause cannot be curtailed by

reading only a part of it. We have examined the provisions of

G.O.Ms.No.610 dt.30.12.85 and G.O.Ms.No.674 dt.7.9.2004. The

provisions of the said GOs do not violate the provisions of the Presidential

Order. Therefore, this point is held against the applicants.

39. POINT NO.2: On perusal of GO.Ms.No.8 dt.8.1.2002 and

GO.Ms.No.124 dt.7.3.2002, it is clear that provisions contained in para-3

and 4 of the Annexures to GO.Ms.No.763 dt.15.7.1975 have been

substituted by new provisions. It is a settled principle of statutory

interpretation that substitutions made to the statutory instruments would

have to date back to the date of giving effect to the main provision.

GO.Ms.No.763 dt.15.11.75 which details procedure now stands

substituted by GO.Ms.No.8 and as such the procedure of appointments

must be governed by the provisions of GO.Ms.No.763 dt.15.7.1975 as

substituted by GO.Ms.No.8.

40. There are plethora of decisions of Hon’ble Supreme Court on this

point. The Hon’ble Supreme Court in the case of GOVT. OF INDIA vs.

71

INDIAN TOBACCO ASSOCIATION reported in 2005 (7) SCC 396 has held as

follows:

“2. Interpretation of the expression "substitute" falls for

determination in this appeal which arises out of a judgment and

order dated 30.01.2004 passed by a Division Bench of the Andhra

Pradesh High Court in Writ Petition No.21674 of 2002.

15. The word "substitute" ordinarily would mean "to put (one) in

place of another"; or "to replace". In Black's Law Dictionary, Fifth

Edition, at page 1281, the word "substitute" has been defined to

mean "To put in the place of another person or thing". or "to

exchange". In Collins English Dictionary, the word "substitute" has

been defined to mean "to serve or cause to serve in place of

another person or thing"; "to replace (an atom or group in a

molecule) with (another atom or group)"; or "a person or thing that

serves in place of another , such as a player in a game who takes

the place of an injured colleague".

16. By reason of the aforementioned amendment no substantive

right has been taken away nor any penal consequence has been

imposed. Only an obvious mistake was sought to be removed

thereby.

41. In the case of ZILE SINGH vs. STATE OF HARYANA AND OTHERS

reported in (2004) 8 SCC 1, it has been held as follows:

“4. It took more than six months for the State Legislature to

realise its error. The Haryana Municipal (Second Amendment)

Act, 1994 (Act 15 of 1994) was enacted by the legislature which

received the assent of the Governor of Haryana on 3.10.1994

and was published in the Haryana Gazette (Extraordinary)

72

dated 4.10.1994. Section 2 of the Second Amendment reads as

under:

“2. In the proviso to clause (c) of sub-section (1) of Section 13-A

of the Haryana Municipal Act, 1973 (hereinafter called the

principal Act), for the word ‘after’, the word ‘upto’ shall be

substituted.”

….

8. At the very outset we may state that the retrospectivity in

operation of the text as amended by the Second amendment

came up for the consideration of a two-Judge Bench of this

Court in Sunil Kumar Rana v. State of Haryana [(2003) 2 SCC

628]. This Court held that the legislative intent to compute the

period of one year under the proviso is from the

“commencement of this Act” meaning thereby from the date of

coming into force of Haryana Act 3 of 1994 and not Haryana Act

15 of 1994 which merely substituted the word “after” by the

word “upto”. The result of the substitution was to read the

provision as amended by the word ordered to be substituted.

……

14. The presumption against retrospective operation is not

applicable to declaratory statutes… In determining, therefore,

the nature of the Act, regard must be had to the substance

rather than to the form. If a new Act is “to explain” an earlier

Act, it would be without object unless construed

retrospectively. An explanatory Act is generally passed to

supply an obvious omission or to clear up doubts as to the

meaning of the previous Act. It is well settled that if a statute

is curative or merely declaratory of the previous law

retrospective operation is generally intended… An amending

Act may be purely declaratory to clear a meaning of a provision

73

of the principal Act which was already implicit. A clarificatory

amendment of this nature will have retrospective effect.

15. Though retrospectivity is not to be presumed and rather

there is presumption against retrospectivity, according to

Craies (Statute Law, 7th Edn.), it is open for the legislature to

enact laws having retrospective operation. This can be

achieved by express enactment or by necessary implication

from the language employed. It is a necessary implication from

the language employed that the legislature intended a

particular section to have a retrospective operation, the courts

will give it such an operation. In the absence of a retrospective

operation having been expressly given, the courts may be

called upon to construe the provisions and answer the question

whether the legislature had sufficiently expressed that

intention giving the statute retrospectivity. Four factors are

suggested as relevant: (i) general scope and purview of the

statute; (ii) the remedy sought to be applied; (iii) the former

state of the law; and (iv) what it was the legislature

contemplated. The rule against retrospectivity does not

extend to protect from the effect of a repeal, a privilege which

did not amount to accrued right.

17. Maxwell states in his work on interpretation of Statutes

(12th Edn.) that the rule against retrospective operation is a

presumption only, and as such it “may be overcome, not only

by express words in the Act but also by circumstances

sufficiently strong to displace it”. If the dominant intention of

the legislature can be clearly and doubtlessly spelt out, the

inhibition contained in the rule against perpetuity becomes of

doubtful applicability as the “inhibition of the rule” is a matter

of degree which would “vary secundum materiam”.

74

Sometimes, where the sense of the statute demands it or

where there has been an obvious mistake in drafting, a court

will be prepared to substitute another word or phrase for that

which actually appears in the text of the Act.

18. In a recent decision of this Court in National Agricultural

Coop. Marketing Federation of India Ltd. V. Union of India

{2003) 5 SCC 23 , it has been held that there is no fixed formula

for the expression of legislative intent to give retrospectivity to

an enactment. Every legislation whether prospective or

retrospective has to be subjected to the question of legislative

competence. The retrospectivity is liable to be decided on a

few touchstones such as: (i) the words used must expressly

provide or clearly imply retrospective operation; (ii) the

retrospectivity must be reasonable and not excessive or harsh,

otherwise it runs the risk of being struck down as

unconstitutional; (iii) where the legislation is introduced to

overcome a judicial decision, the power cannot be used to

subvert the decision without removing the statutory basis of

the decision. There is no fixed formula for the expression of

legislative intent to give retrospectivity to an enactment. A

validating clause coupled with a substantive statutory change is

only one of the methods to leave actions unsustainable under

the unamended statute, undisturbed. Consequently, the

absence of a validating clause would not by itself affect the

retrospective operation of the statutory provision, if such

retrospectivity is otherwise apparent.”

75

42. In the case of JOSE DA COSTA AND ANOTHER vs. BASCORA

SADASIVA SINAI NARCORNIM AND OTHERS reported in (1976) 2 SCC 917,

it has been held as follows:

“31. Before ascertaining the effect of the enactments

aforesaid passed by the Central Legislature on pending suits or

appeals, it would be appropriate to bear in mind two well-

established principles. The first is that while provisions of a statute

dealing merely with matters of procedure may properly, unless

that construction be textually inadmissible, have retrospective

effect attributed to them, provisions which touch a right in existence

at the passing of the statute are not to be applied retrospectively in

the absence of express enactment or necessary intendment …

The second is that a right of appeal being a substantive right the

institution of a suit carries with it the implication that all successive

appeals available under the law then in force would be preserved

to the parties to the suit throughout the rest of the career of the

suit. There are two exceptions to the application of this rule, viz

(1) when by competent enactment such right of appeal is taken

away expressly or impliedly with retrospective effect and (2) when

the Court to which appeal lay at the commencement of the

suit stands abolished (Garikapati Veeraya v. N. Subbiah

Choudhary : AIR 1957 SC 540 and Colonial Sugar Refining Co. Ltd. v.

Irving : 1905 AC 369).

43. In the case of GURBACHAN SINGH vs. SATPAL SINGH AND OTHERS

reported in (1990) 1 SCC 445, it has been held as follows:

“37. The provisions of the said Section do not create any new offence

and as such it does not create any substantial right but it is merely a

matter of procedure of evidence and as such it is retrospective and will

be applicable to this case. It is profitable to refer in this connection to

76

Hals-bury's Laws of England, (Fourth Edition), Volume 44 Page 570

wherein it has been stated that:

"The general rule as mat all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication,

it appears that this was the intention of the legislature....”

38. It has also been stated in the said volume of Halsbury's Law of England

at page 574 that:

"The presumption against retrospection does not apply

to legislation concerned merely with matters of

procedure or of evidence; on the contrary, provisions of

that nature are to be construed as retrospective unless

there is a clear indication that such was not the intention

of Parliament."

44. The aforesaid decision is followed in the case of ARVIND KUMAR

AND ANOTHER vs. STATE OF MADHYA PRADESH reported in (2007) 12

SCC 681.

45. In the case of RAJENDRA KUMAR vs. KALYAN (DEAD) BY LRS. reported

in (2000) 8 SCC 99, it has been held as follows:

“22. The law thus seems to be well settled that no person has, in fact, a vested right in procedural aspect one has only a right of prosecution or defence in the manner as prescribed by the law for the time being and in the event of any change of procedure by an Act of Parliament one cannot possibly have any right to proceed with the pending excepting as altered by the new legislation and as such we need not dilate on the issue any further.”

77

46. The Division Bench of the Hon’ble High Court in the case of

DIRECTOR OF HEALTH, A.P., HYDERABAD AND OTHERS vs.

DR.P.VEERABHADRA RAO AND OTHERS reported in 2008 (4) ALT 744

considering the Judgments of the Hon’ble Supreme Court in the case of

GOVT. OF INDIA vs. INDIAN TOBACCO ASSOCIATION reported in 2005 (7)

SCC 396, in the case of WEST U.P. SUGAR MILLS ASSOCIATION vs. STATE

OF U.P. reported in (2002) 2 SCC 645, in the case of UNION OF INDIA vs. C.

RAMA SWAMY reported in (1997) 4 SCC 647 has held that an amendment

to State and Subordinate Service Rules by way of substitution would date

back to the date on which the main instrument was given effect to.

47. Another reason on which the theory of prospectivity and

retrospectivity cannot be pressed into service is that provisions in the

nature of clarifications or supplying an obvious omission must be

considered as being retrospective. On this principle, the Hon’ble Supreme

Court in the following cases has held as follows:

(a) In the case of Jose Da Costa and Another v.Bascora

Sadasiva Sinai Narcornim and Ors reported in 1976 ( 2)

SCC 917 , it has been held as follows:

“31. Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind two well-

78

established principles. The first is that while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment …

The second is that a right of appeal being a substantive right the

institution of a suit carries with it the implication that all successive

appeals available under the law then in force would be preserved

to the parties to the suit throughout the rest of the career of the

suit. There are two exceptions to the application of this rule, viz

(1) when by competent enactment such right of appeal is taken

away expressly or impliedly with retrospective effect and (2) when

the Court to which appeal lay at the commencement of the suit

stands abolished (Garikapati Veeraya v. N. Subbiah Choudhary

: AIR 1957 SC 540 and Colonial Sugar Refining Co. Ltd. v. Irving :

1905 AC 369).

(b) In the case of GURBACHAN SINGH vs. SATPAL SINGH

reported in (1990) 1 SCC 445, it has been held as follows:

“37. The provisions of the said section do not create any new offence

and as such it does not create any substantial right but it is merely a

matter of procedure of evidence and as such it is retrospective and

will be applicable to this case. It is profitable to refer in this

connection to Halsbury’s Laws of England, Fourth Edition, Volume 44

page 570 wherein it has been stated that:

“The general rule is that all statutes, other than those which are

merely declaratory or which relate only to matters of procedure or of

evidence, are prima facie prospective, and retrospective effect s not

79

to be given to them unless, by express words or necessary

implication, it appears that this was the intention of the legislature…”

48. Thus, it is a settled proposition of law relating to interpretation of

statutes that provisions which have the nature of supplying an obvious

omission, clearing of doubts and curative amendments would have to be

considered as retrospective. In the case on hand, procedure which was

adopted resulted in the Presidential Order not being properly

implemented. This error which frustrates the very scheme of the special

provision, was sought to be cured by specifying a procedure which would

help in furtherance of the avowed object for which constitutional

amendment was made by inserting Article 371(D). The mistake has been

cured by issuing GO.Ms.No.8 dt.8.1.2002 according to which open

category vacancies were to be filled up in the first instance which may also

include meritorious local candidates besides non local candidates. In a

given situation it would also result in all the open seats being filled up by

meritorious local candidates. Any contra distinction to the said procedure

while filling up of local candidates at the first instance would result in

meritorious open candidates being left out of consideration and that hits

the equitable distribution contemplated in the Presidential Order. The

procedure substituted by GO.Ms.No.8 has cured this illness and in

80

accordance with law it is to be given effect from the date on which the

Presidential Order has been given effect to i.e., 18.10.1975.

49. Any principle of interpretation consistently followed by the court is

that, that is a general presumption of prospectivity in favour of legislative

instruments unless expressly provided that it would be retrospective is

untenable. Such a presumption is liable to be made only in cases where

statutes and amendments thereto which are of substantive nature. Such

a presumption does not exist in respect of procedural amendments.

Assuming for the sake of argument that amendment has to be presumed

to be prospective, in the present case the amendment being only

procedural in nature, such a presumption cannot be pressed into service in

the light of following dicta of the Hon’ble Supreme Court:

(a) In the case of ARVIND KUMAR vs. STATE OF M.P.

reported in (2007) 12 SCC 681, wherein it has been held as

follows:

“15. The contention of the learned counsel for the accused that

the presumption enumerated under Section 113-A of the

Evidence Act is not attracted in the present case does not merit

acceptance. It is well-settled law that presumption with

respect to the procedural matters is normally to be construed

as prospective (sic retrospective). Section 113-A does not

create any new offence or makes it punishable. It only deals

with presumption which the court may draw in particular fact

81

situation. This court in Gurbachan Singh held in Air para 36 as

under:

“37[36]. The provisions of the said section do not create any

new offence and as such it does not create any substantial right

but it is merely a matter of procedure of evidence and as such it

is retrospective and will be applicable to this case. It is

profitable to refer in this connection to Halsbury’s Laws of

England, Fourth Edition, Volume 44 page 570 wherein it has

been stated that:

“The general rule is that all statutes, other than those which

are merely declaratory or which relate only to matters of

procedure or of evidence, are prima facie prospective, and

retrospective effect s not to be given to them unless, by express

words or necessary implication, it appears that this was the

intention of the legislature…”

(b) The Supreme Court relied on its earlier decision in the

case of RAJENDRA KUMAR vs. KALYAN reported in

(2000) 8 SCC 99, wherein it has been held as follows:

“21. Still later this Court in Gurbachan Singh v. Satpal Singh & Others ( AIR 1990 SC 209) expressed in the similar vein as regards the element of retrospectivity. The English Courts also laid that the rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect the vested rights: It does not apply to statutes which alter the form of procedure or the admissibility of evidence, or the effect which the courts give to evidence: If the new Act affects matters of procedure only, then, prima facie, it applies to all actions pending as well as future (see in this context the decisions of the House of Lords in the case of Blyth v. Blyth (1966)1 All ER 524: A.G. v. Vernazza: (1960) 3 All ER). In Halsburys Laws of England (4th Edition: Vol.44: para 925 page 574) upon reference to Wright v. Hale (1860) 6 H & N 227 and Gardner v. Lucas

82

(1878) 3 Appeal Cases 582 along with some later cases including Blyth v. Blyth (supra) it has been stated:

“The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.

22. The law thus seems to be well settled that no person has, in fact, a vested right in procedural aspect one has only a right of prosecution or defence in the manner as prescribed by the law for the time being and in the event of any change of procedure by an Act of Parliament one cannot possibly have any right to proceed with the pending excepting as altered by the new legislation and as such we need not dilate on the issue any further.”

50. Even though the issue relates to criminal trial and the procedure

adopted for correction of evidence, the principle laid down is that

amendments to procedure would not affect a vested right. In the case on

hand, by virtue of changing the procedure, no person who has been

appointed would be terminated and thus, vested right of employee is not

adversely affected. However, no employee can validly be heard to plea

that he would have a vested right to serve at a particular place more

importantly when it would be violating the implementation of the

Presidential Order. Thus, the ratio of the aforesaid judgments would

justify the stand of the State that amendment which modify the procedure

can be retro-active. In this connection, it would be necessary to recall the

decision of the Full Bench of this Tribunal rendered in OA.562/2002 and

83

batch. The issue was framed by the Full bench which did not consider the

same relating to retrospectivity of GO.Ms.No.8 dt.8.1.2002 but held that

as per existing law, ratio of 80:20 between local and non-local candidates

is to be followed and Full Bench held that GO.Ms.No.2 and 8 were held

valid. The respondents cannot rely upon the Full Bench decision which will

not come to their rescue. However, judicial review of the said orders

passed by the Full Bench was before the Hon’ble High Court but Hon’ble

High Court also did not decide the issue of relating to prospectivity or

otherwise of GO.Ms.No.8 dt.8.1.2002.

51. It would be necessary to recall another judgment of Full Bench

which deals with the issue as to selections which were made by District

Selection Committee in 1998 need not be reviewed and the percentage of

local candidates that is liable to be treated as reserved is 80% as against

70% followed then. This Bench also never dealt with the operation of

GO.Ms.No.8 whether it is prospective or retrospective in its operation. In

view of this, the contention of the applicants that GO.Ms.No.8 dt.8.1.2002

is prospective in operation, cannot be accepted by this Tribunal as it is a

fact that GO has been issued for the purpose of correcting an erroneous

procedure stipulated in GO.Ms.No.763 retro activity is evident by

implication.

84

52. It is also settled principle of law that legislative and rule making

authority can correct such errors. It is also a constitutionally recognized

principle that executive power is co-terminus with that of legislature and

what can be done in the form of legislation could also be done through

executive instructions. The only embargo is that field should not have

been occupied either by a statute or by statutory instruments like the

rules. In the present case there is neither a statute nor the rules and the

Presidential Order is silent about the same. This power exercised by the

State cannot be construed as violative of the provisions of the Presidential

Order. Earlier, the procedure was evolved by the Government in

GO.Ms.No.763 and the same has been substituted by GO.Ms.No.8 which

cannot be found fault with. Therefore, we un-hesitatingly hold that

GO.Ms.No.8 dt.8.1.2002 and GO.Ms.No.124 dt.7.3.2002 are retrospective

in operation and the action of the State in reviewing the appointments

made right from 18.10.1975 till to date are not illegal.

53. POINT NO.3:

As far as invocation of power contained in para-5 of the Presidential Order

is concerned, GO.Ms.No.674 dt.7.9.2007 would protect the interest of the

individuals who are now transferred like applicants pursuant to the

85

decision to implement the Presidential Order in its full spirit. On perusal of

para-7 of the said GO which states that after specific identification of non-

locals who have been appointed in deviation shall be repatriated to their

respective local cadres by transfer. The transfer so ordered shall be in

public interest as provided in paragraph-5(2)(c ) of the Presidential Order.

Further more, paragraph-8 of the GO goes to state that all the employees

so transferred shall be eligible for TA and protection of seniority as

transfers have been made in public interest. It is a settled proposition of

law that when action of an administrative authority does not visit the

employee with civil consequence or any way prejudices him, no notice

need be given. The paramount importance of the State is implementation

of the Presidential Order in its true letter and spirit. Under such

circumstances, private interest will have to give room to the public

interest. Following decisions will support the contention of the

respondent State:

(a) In the case of UNION OF INDIA vs. MUSTAFA & NAJIBAI

TRADING CO., reported in (1998) 6 SCC 79, wherein it has

been held as follows:

“Insofar as the rule of audi alteram partem is concerned, the

position is well settled that an order passed in disregard of the

said principle would not be invalidated if it can be shown that

as a result of denial of the opportunity contemplated by the

86

said rule, the person seeking to challenge the order has not

suffered any prejudice.”

(b) In the case of ALIGARH MUSLIM UNIVERSITY vs. MANSOOR

ALI KHAN (2000) 7 SCC 529, it has been held as follows:

“21. As pointed recently in M.C. Mehta Vs. Union of India (1999 (6) SCC 237), there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary.

Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao vs. Government of Andhra Pradesh [1966 (2) SCR 172 = AIR 1966 SC 828], it is not necessary to quash the order merely because of violation of Principles of natural justice.

22. In M.C.Mehta it was pointed out that at one time, it was held in Ridge vs. Baldwin ( 1964 AC 40) that breach of principles of natural justice was in itself treated as prejudice and that no other 'defacto' prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor Vs. Jagmohan ( 1980 (4) SCC 379), Chinnappa Reddy, J. followed Ridge vs. Baldwin and set aside the order of supercession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.

23. Chinnappa Reddy,J. in S.L.Kapoor's case, laid two exceptions (at p.395) namely, " if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of

87

natural justice. Of course, this being an exception, great care must be taken in applying this exception.

24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases.In K.L. Tripathi Vs. State Bank of India (1984(1) SCC 43), Sabyasachi Mukherji, J. ( as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed: quoting Wade Administrative Law, (5th Ed.PP.472-475) as follows: ( para 31)

"....it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent ....There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with and so forth".

Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala Vs.S.K. Sharma ( 1996(3) SCC 364). In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh Vs. State of M.P. ( 1996(5) SCC 460).”

(c) In the case of COMPETITION COMMISSION OF INDIA vs. SAIL reported in (2010) 10 SCC 744, it has been held as follows:

“ However, the exclusion of the principles of natural justice is also an equally known concept and the legislature has the competence to enact laws which specifically exclude the application of principles of natural justice in larger public interest and for valid reasons.

68. Generally, we can classify compliance or otherwise, of these principles mainly under three categories. First, where application of principles of natural justice is excluded by specific legislation; second, where the law contemplates strict compliance to the provisions of principles of natural justice and default in compliance thereto can result in vitiating not only the

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orders but even the proceedings taken against the delinquent; and third, where the law requires compliance to these principles of natural justice, but an irresistible conclusion is drawn by the competent court or forum that no prejudice has been caused to the delinquent and the non-compliance is with regard to an action of directory nature. The cases may fall in any of these categories and therefore, the Court has to examine the facts of each case in light of the Act or the Rules and Regulations in force in relation to such a case. It is not only difficult but also not advisable to spell out any straight jacket formula which can be applied universally to all cases without variation.

(d) The Division Bench of the Hon’ble High Court in W.P.No.23391/2009

between Government of A.P. represented by its Principal

Secretary, Education Department , Secretariat, Hyderabad and

others and B.V.N. Malleshwari and Others has held as follows:

“30. With respect to the contention of the learned counsel for the respondent that the said impugned GO violates the principles of natural justice, as countenanced by the learned Additional Advocate General by stating that all the earlier GO’s which are referred to are, in fact, covered by the policy decision of the State under G.O.Ms.No.610 dated 30.12.1985, which in turn is based upon the Presidential Order. The implementation of the said policy, therefore, is not required to be preceded by any notice. WE are also of the view and it is now well settled that principles of natural justice cannot apply in straightjacket formula in each and every situation. Even if a prior notice had been given in the present case, the fact situation being the admitted appointment of the respondent against a reserved local post, no useful purpose would have been served as the said factual aspect, as stated above, is not controverted even in the OA nor could have been controverted by the respondent in the reply to such a notice, if it had been given. The formality of notice would have been wholly redundant and unnecessary on the facts and circumstances of the present case. The contention of the respondent, therefore, that the principles of natural justice are violated is also liable to be rejected.”

Thus, the Division Bench of the Hon’ble High Court has held that the

various GOs issued are covered by policy decision of the State Government

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under GO.Ms.NO.610 dt.30.12.1985 which is again based upon the

Presidential Order. It is a policy decision which is not required to be

preceded by any notice while issuing the consequential repatriation

orders. The endeavour of the State Government was to bring the

appointments totally inconformity with the provisions of the Presidential

Order. Therefore, the action of the respondent State in exercising the

powers conferred under para-5 of the Presidential Order is not violative of

principles of natural justice.

54. Therefore, the respondent State has rightly exercised the power

conferred under para-5 of the Presidential Order, it cannot be construed

as illegal.

55. POINT NO.4:

The impugned GOs do not tinker with the rankings assigned by the

selecting agencies like APPSC and District Selection Committees. It is a

well known principle that selection agencies carried out conducting of

selections and preparing a merit list. After preparation of merit list, they

have no role to play. The respondent State has not tampered with the

merit list prepared either by PSC or DSC. As the list is available with the

State, the State has to give effect to the merit list in accordance with the

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Presidential Order. Under such circumstances, it cannot be said that

respondent State has tampered with the merit list prepared by the

selecting agency and it is not necessary for the State to consult the

selecting agencies. Therefore, this point also answered in favour of the

State.

56. POINT NO.5:

All the counsel have also argued that promotion is a vested right and

it is sought to be taken away. The applicants have challenged the validity

of repatriation orders on the ground that their promotional prospects

would be adversely affected. This ground cannot be accepted by this

Tribunal as it is a settled proposition of law in catena of decisions of the

Hon’ble Supreme Court that mere chances of promotion are not

conditions of service and the fact that there was reduction in chances of

promotion do not tantamount to a change in the conditions of service.

The principle has been reviewed by the Hon’ble Supreme Court extensively

in the case of CHANDRA GUPTA, I.F.S. v. SECY., GOVT. OF INDIA,

MINISTRY OF ENVIRONMENT & FORESTS reported in (1995) 1 SCC 23,

wherein it has been held as follows:

“It is well settled in law that no employee has a right or

vested right to chances of promotion as held by this Court in

Ramchandra Shankar Deodhar vs. State of Maharashtra.

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“It is now well settled by the decision of this Court in State

of Mysore v. G.N. Purohit that though a right to be considered

for promotion is a condition of service, mere chances of

promotion are not. A rule which merely affects chances of

promotion cannot be regarded as varying a condition of service.

In Purohit case the district wise seniority of Sanitary Inspectors

was changed to State wise seniority, and as a result of this

change the respondents went down in seniority and became

very junior. This, it was urged, affected their chances of

promotion which were protected under the proviso to Section

115, sub-section (7). This contention was negative and

Wanchoo, J., speaking on behalf of this Court observed:

“It is said on behalf of the respondents that as their chances

of promotion have been affected their conditions of service

have been changed to their disadvantage. We see no force in

this argument because chances of promotion are not

conditions of service.”

26. The same principle is reiterated in the following cases:

27. In MOHD. SHUJAT ALI vs. UNION OF INDIA , this Court held

thus:

“It is true that a rule which confers a right of actual

promotion or a right to be considered for promotion is a rule

prescribing a condition of service. This proposition can no

longer be disputed in view of several pronouncements of this

Court on the point and particularly the decision in

MOHAMMAD BHAKAR vs. Y.KRISHNA REDDY where this Court,

speaking through Mitter, J., said:

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‘Any rule which affects the promotion of a person relates to

his condition of service.’

But when we speak of a right to be considered for

promotion, we must not confuse it with mere chance of

promotion – the latter would certainly not be a condition of

service.”

Again, in RESERVE BANK OF INDIA VS. C.T. DIGHE this Court

held thus:

“It is well settled that a rule which affects the promotion of a

person relates to his condition of service but this is not so if

what is affected is a chance of promotion only. This Court in

Mohd. Shujat Ali vs. Union of India held:

‘But when we speak of a right to be considered for

promotion, we must not confuse it with mere chance of

promotion – the latter would certainly not be a condition of

service.. that though a right to be considered for promotion is a

condition of service, mere chances of promotion are not.’

In SHUJAT ALI case, the respondents went down in seniority

and it was urged that this affected their chances of promotion.”

Again, in State of Maharashtra vs. Chandrakant Anant

Kulkarni, this Court held thus:

“Mere chances of promotion are not conditions of service

and the fact that there was reduction in the chances of

promotion did not tantamount to a change in the conditions of

service. A right to be considered for promotion is a term of

service, but mere chances of promotion are not.”

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Again, in Reserve Bank of India v. C.N. Sahasranaman, this

Court held thus:

“This Court had also observed that the right of promotion

should not be confused with mere chance of promotion.

Though the right to be considered for promotion was a

condition of service, mere chances of promotion were not. See

Mohd. Shujat Ali v. Union of India. See also in this connection

the observations in R.S. Deodhar vs. State of Maharashtra and

Reserve Bank of India vs. C.T. Dighe.”

Again, in Paluru Ramkrishnaiah vs. Union of India, this

Court held thus:

“In the case of Ramchandra Shankar Deodhar the

petitioners and other allocated Tehsildars from ex-Hyderabad

State had under the notification of the Raj Pramukh dated

15.9.1955 all the vacancies in the posts of Deputy Collector in

the ex-Hyderabad State available to them for promotion but

under subsequent rules of 30.7.1959, 50 per cent of the

vacancies were to be filled by direct recruitment and only the

remaining 50 per cent were available for promotion and that

too on divisional basis. The effect of this change obviously was

that now only 50 per cent vacancies in the post of Deputy

Collector being available in place of all the vacancies it was to

take almost double the time for many other allocated

Tehsildars to get promoted as Deputy Collectors. In other

words it resulted in delayed chance of promotion: It was, inter

alia, urged on behalf of the petitioners that the situation

brought about by the rules of 30.7.1959 constituted variation

to their prejudice in the conditions of service applicable to

them immediately prior to the reorganisation of the State and

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the rules were consequently invalid. While repelling this

submission, the Constitution Bench held:

“All that happened as a result of making promotions to the

posts of Deputy Collectors division wise and limiting such

promotions to 50 percent of the total number of vacancies in

the posts of Deputy Collector was to reduce the chances of

promotion available to the petitioners. It is now well settled by

the decision of this Court in State of Mysore v. G.B. Purohit that

though a right to be considered for promotion is a condition of

service, mere chances of promotion are not. A rule which

merely affect chances of promotion cannot be regarded as

varying a condition of service. In Purohit case the district wise

seniority of Sanitary Inspectors was changed to State wise

seniority, and as a result of this change the respondents went

down in seniority and became very junior. This, it was urged,

affected their chances of promotion which were protected

under the proviso to Section 115, sub-section (7). This

contention was negative and Wanchoo, J., speaking on behalf

of this Court observed.

“It is said on behalf of the respondents that as their chances

of promotion have been affected their conditions of service

have been changed to their disadvantage. We see no force in

this argument because chances of promotion are not

conditions of service.

It is therefore, clear that neither the rules of 30.7.1959, nor

the procedure for making promotions to the posts of Deputy

Collector division wise varies the conditions of service of the

petitioners to their disadvantage.”

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Again in K.Jagadeesan vs. Union of India this Court held

thus:

“A right to be considered for promotion is a term of service,

but mere chances of promotion are not.”

Thus, this point is also held against the applicants.

57. Having regard to the facts and circumstances of the cases and for

the foregoing reasons, it is held as follows:

i) G.O.Ms.No.610 dt.13.12.1985 and G.O.Ms.No.674 dt.7.9.2007

and the consequential repatriation orders passed by the

respondent State are not violative of any of the provisions of

the Presidential Order.

ii) The amendments issued by way of substitution as per

GO.Ms.No.8 dt.8.1.2002 and GO.Ms.No.124 dt.7.3.2002 are

undoubtedly retrospective in operation.

iii) Invoking the provisions of paragraph-5 of the Presidential

Order need not be preceded by any notice or observance of

principles of natural justice.

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iv) The action of the respondents in issuing consequential

repatriation orders in furtherance of GO.Ms.No.610

dt.30.12.85 does not amount to tinkering with the ranking

assigned by the selecting bodies like Andhra Pradesh Public

Service Commission or any other selection committees.

v) Finally, the right of promotion is not at all a vested right.

58. In the result, the applications are dismissed. The interim orders

shall stand vacated. VMAs allowed, M.As. and CAs. stand closed. No

orders as to cost.

Sd/- P.SUBBA RAO DY. REGISTRAR

//TRUE COPY//

ASSISTANT REGISTRAR