Government
of Andhra Pradesh & Anr Vs. A. Suryanarayanarao & Ors [1991] INSC 231 (12 September 1991)
Reddy,
K. Jayachandra (J) Reddy, K. Jayachandra (J) Pandian, S.R. (J)
CITATION:
1991 AIR 2113 1991 SCR Supl. (1) 27 1991 SCC Supl. (2) 367 JT 1991 (4) 206 1991
SCALE (2)548
ACT:
Constitution
of India, 1950: Article 371D--Object and scope of---Issuance of Presidential
Order 1975--Effect on A.P. Panchayati Raj Engineering Service Rules, 1963--Rule
2A--Assistant Engineers (Deputy Executive Engineers)--Wheth- er applicable for
direct recruitment only or for promotion also.
Civil
Services: .A.P. Panchayati Raj Engineering Service Rules, 1963: Rule
2A--Promotion-Junior Engineer to Assistant Engineer--Whether to be made on the
basis of zonal seniority or statewide seniority.
HEAD NOTE:
Article
371D of the Constitution of India, which is peculiar to the State of Andhra Pradesh only, empowers the President to
provide by order for equitable opportunities and facilities for the people
belonging to different parts of the State in the matters of public employment
and educa- tion. As provided therein the President of India made the Andhra
Pradesh Public Employment (Organisation of Local Cadres and Regulation of
Direct Recruitment) Orders, 1975, by virtue of which the State was divided into
six zones, and local cadres of posts in respect of the local areas were
created. In respect of Andhra Pradesh Panchayati Raj Engi- neering Service the
two such zonal posts were Junior Engi- neer and Assistant Engineer. Before the
Administrative Tribunal, some promotions made from Junior Engineer to Assistant
Engineer were questioned, and the Tribunal held that promotions should be made
on the basis of the Statewide list and directed the State Government to redetermine
the position of the petitioners before it, in the seniority list.
Aggrieved
by the Tribunal's order, the State Government and the affected officials have
approached this Court by way of the present appeals and special leave
petitions.
On
behalf of the State Government, it was contended that both the posts of Junior
Engineer and Assistant Engineer were zonal posts under the Presidential Order
and the zonal seniority list had to be followed in the 28 matter of promotions
from Junior Engineer to Assistant Engineer and not the Statewide seniority list
of Junior Engineers.
On
behalf of the Respondents it was contended that Article 371D (2) of the
Constitution refers only to direct recruitment and the Presidential Order made
under the said Article cannot make a departure and cannot be made applica- ble
for promotions also. It was further contended that it is the Statewide list
that should be the basis for promotion.
Disposing
of these matters, this Court, HELD: 1. Notwithstanding anything contained in
the A.P. Panchayati Raj Engineering Service Rules, 1963 the promo- tions have
to be based on zonal list; otherwise the very object sought to be achieved as
per Article 371D of the Constitution of India and the Presidential Order issued
thereunder would be defeated. The word 'employment' should be interpreted in a
broad and general manner. The expression 'in the matter of public employment'
in clause (1) of Arti- cle 371D is of wider import. The public employment can
be by way of direct recruitment or by promotion. The Presidential Order would
apply both for direct recruitment and for promo- tion in respect of categories
specified in the Third Sched- ule. Article 371D (2) does not make any departure
from this principle. The words 'in particular, therein only lay empha- sis on
the aspect of creating local cadres for different parts of the State for the
purpose/of direct recruitment and treat such parts as local areas. This does
not in any manner restrict the scope of Article 371D wherein it is clearly
declared that in the matter of public employment, the Presi- dent is empowered
to make an order in the manner stated therein and the public employment cannot
but be interpreted to include promotion also. It, therefore, emerges that
Article 371D is in general terms and applies to the public employment as whole
and Article 371D(2) in particular ap- plies to direct recruitment. It is only
complementary to clause (1) and particularises the matters which an order made
under clause (1) provides for. Any other interpretation would defeat the object
underlying these two provisions. [42 D-H, 43 A] The General Manager, Southern
Railway v. Rangachari, [1962] 2 SCR 586, relied on.
2.1.
Article 371D is of exceptional nature and the objective is to provide equal
opportunities in the backward areas in respect of the specified posts mentioned
in the Third Schedule which are included in the local cadres which thus became
zonal posts. As mentioned in para 5 of the 29 Presidential Order and Rule 2-A
of the A.P. Panchayati Raj Engineering Service Rules, such zones should be
treated as separate units for the purpose of promotions also. There- fore,
there is valid nexus to the object that is sought to be achieved and even if
there is some anamoly it cannot on that basis be said that such promotions for
zonal posts on the basis of the zonal seniority list amounts to discrimina- tion.
[44 D-E] 2.2. Rule 2-A makes it abundantly clear that for the purpose of
recruitment, appointment, promotion, transfer etc. each zone shall be a
separate unit. Para 5 of the Presidential Order is also
to the same effect. When once each zone is treated as separate unit for the
purpose of promotion also in respect of zonal posts then by virtue of Article
371D and the Presidential Order, the promotion from the post of junior Engineer
to the post of Assistant Engi- neer which are both zonal posts, should be on
the basis of the zonal seniority list inasmuch as the post of Junior Engineer
and the next promotion post namely Assistant/Engi- neer are included in the
local cadres and the zonal list in the Third Schedule. With regard to the
higher post which included in the local cadre and which are Statewide posts, it
becomes obvious that the Statewide seniority list of the Assistant Engineer of
all zones should be prepared and that should be the basis of promotion to the
post of Executive Engineer which is not a zonal post. Therefore, the direc- tions
given by the Tribunal to ensure that no Junior Engi- neer is promoted earlier
than their seniors in the Statewide seniority list to the post of Executive
Engineer, should be quashed. [43 F-H, 44 A-B] S. Prakasha Rao and Anr. v.
Commissioner of Commercial Taxes and Ors., [1990] 2 SCC 259, relied on.
High
Court of Andhra Pradesh and Ors. v. V.V.S. Krishna- murthy and Ors., [1979] 1
SCR 26, referred to.
3.1.
All promotions of Junior Engineers (redesignated as Assistant Executive
Engineers) to the next higher post of Assistant Engineers (redesignated as
Deputy Executive Engi- neers) have to be made on the basis of the zonal
seniority list and not on the basis of the Statewide seniority list of Junior
Engineers. [44 F] 3.2. Having regard to the historical background and the
object underlying Article 371D and the Presidential Order and in particular para
13 of the Presidential Order, the promotions, if any made should be 30 treated
only as provisional. If Rule 2-A is viewed from this angle particularly in the
light of paras 5 and 13 of the Presidential Order it becomes clear that the
said Rule has to be given retrospective effect so that the promotions to the junior
posts can be brought in conformity with Articles 371D and the Presidential Order.The
promotions made after the Presidential Order dated 18.11.1975 should be treated
as provisional and the Government is permitted to review these promotions on
the basis of zonal seniority lists and re- adjust the same all the future
promotions. from the post of Junior Engineer to the post of Assistant Engineer
should necessarily be made on the basis of the zonal seniority lists. For the
purpose of promotion to the post of Executive Engineer, which is not a zonal
post, a Statewide seniority list of the Assistant Engineers of all zones should
be prepared and such statewide seniority list should form the basis of
promotion to the post of Executive Engineer. The State Government is
accordingly directed to prepare such lists i.e. zonal seniority lists of
various zones for the purpose of promotions from Junior Engineers to Assistant
Engineers within the zones and also the statewide seniority list of the
Assistant Engineers of all zones for the purpose of promotions to the post of
Executive Engineer. Such of the directions given by the Tribunal in the
matters, which are contrary to and different from the conclusions now reached,
shall remain quashed. [44 D-E; 44 D-H; 45-A-B] 3.3. The inter-se seniority and
the consequent promo- tions of Respondent Nos. 1 to 5 in Civil Appeal No.
3935/88 as well as the petitioners in Special Leave Petition (Civil) No.
2150/87 shall be determined subject to the directions, now given. [45 B-C] Y..N.
Rangiah and Ors. etc. v.J. Sreenivasa Rao and Ors. etc., [1983]3 SCC 284; N.T.
Devin Katti and Ors. v. Karnata- ka Public Sen,ice Commission and Ors., [1990]
3 SCC 15, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No.3985 of 1988.
From
the Judgment and Order dated 31.12.1987 of the Andhra Pradesh Administrative
Tribunal, Hyderabad in R.P.No. 967 of 1987.
WITH S.L.P.
(C) No. 9290 of 1988 with S.L.P (C) No. 2150/87 CMP No. 25521/88 and
C.A.1342/86 K.Madhava Reddy, C. Sitaramiah, P.P.Rao, G. Prabhakar, K.R. 31 Nagaraja,
P.K. Rao, Ms. C.K. Sucharita, B. Kanta Rao, K. Ram Kumar, B. Krishna Prasad and
T.V.S.N. chari (N.P.) for the appearing parties.
The
Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. The questions
that arise for consideration in all these connected cases are confined only to
some of the posts of civil services of Andhra Pradesh in view of certain
special provisions applicable to these services. Article 371D of the
Constitution of India is peculiar to the State of Andhra Pradesh due to
historical background. It was enacted by the Constitution (Thirty- Second)
Amendment Act which applied only to the State of Andhra Pradesh, with a view to
give effect to certain safe- guards in the matter of employment opportunities
for resi- dents of Telangana region. This Article empowers President to provide
by order for equitable opportunities and facili- ties for the people belonging
to different parts of the State of Andhra Pradesh in the matter of public
employment and in the matter of education. This Article also provides for
constitution of an Administrative Tribunal to receive representations for the redressal
of the grievances and for passing necessary orders. Accordingly the President
of India made Andhra Pradesh Public Employment (Organisation of Local Cadres
and Regulation of Direct Recruitment) Order, 1975 ('Presidential Order' for
short) by virtue of which the State of Andhra Pradesh has been divided into six
zones and local cadres of posts in respect of the local areas were created. In
respect of Andhra Pradesh Panchayati Raj Engi- neering Service the two such
zonal posts are junior Engineer and Assistant Engineer. The main question that
arises for consideration in these cases is whether the promotion from Junior
Engineer to Assistant Engineer should be on the basis of Statewide list or the
zonal list. Some of the promotions made were questioned by the affected persons
before the Administrative Tribunal which disposed them of indicating that such
promotions should be made on the basis of the Statewide list. The State of
Andhra Pradesh has questioned the same in C.A.No. 1342/86, C.A.No. 3985/88 and
S.L.P. (Civil) No. 9290/88 mainly on the ground that promotions should be
confined to only within local cadres and zonal posts. S.L.P. (Civil) No.
2150/87 is filed by two such Engineers whose representation was disposed of by
the Tribu- nal directing the Government to redetermine their positions in the
Seniority list instead of giving a definite declara- tion as prayed for by
them.
Shri K.Madhava
Reddy, learned counsel appearing for the State of Andhra Pradesh, submitted
that both the posts of Junior Engineer and Assistant Engineer are zonal posts
under the Presidential Order and the zonal seniority list has to be followed in
the matter of promotions from 32 Junior Engineer to Assistant Engineer and not
the Statewide seniority list of Junior Engineers. He also submitted that all
promotions made so far pursuant to certain orders should be treated as
provisional and that the State Government should be permitted to review these
promotions on the basis of the zonal seniority list and that all further
promotions shall be made on the basis of the zonal seniority list.
According
to the learned counsel, for the purpose of promo- tion to the higher post of
Executive Engineer which is not a zonal post, a Statewide seniority list of
Assistant Engi- neers of all zones should be prepared on the basis of which
promotion to the post of Executive Engineer will be made.
Shri Sitaramiah,
learned counsel appearing for respondents, submitted that Article 371D(2)
refers only to direct re- cruitment and the Presidential Order made under the
said Article cannot make a departure and cannot be made applica- ble for
promotions also. On the other hand, it is the State- wide list that should be
the basis for promotions. In sup- port of his submissions he invited our
attention to the provisions of Article 371D and the Presidential Order and emphasised
the word 'employment' as occurring in the Article should be confined only to
direct recruitment. Shri P.P. Rao, learned counsel appearing for other set of
respondents in the appeals filed by the State of Andhra Pradesh, submit- ted
that even if either of the lists is to form the basis for promotions his
clients are not affected and their promo- tions are being unnecessarily
delayed. Some of the Engineers of the Andhra Pradesh Panchayati Raj Engineering
Service got themselves impleaded in the appeal filed by the State of Andhra
Pradesh and Shri B. Kanta Rao appearing on their behalf supported the stand
taken by the Government of Andhra Pradesh.
To
appreciate these rival contentions it becomes neces- sary to refer to some of
the relevant provisions of Article 371D as well as the Presidential Order and
some of the notifications made there under and the relevant provisions of the
A.P. Panchayati Raj Engineering Service Rules. On Novem- ber 1, 1956 as a
result of reorganisation of the States the erstwhile State of Hyderabad was
trifurcated and Telangana region became a part of the newly formed State of
Andhra Pradesh. Certain safeguards were envisaged for the Telangana area in the
matter of development and also in the matter of employment opportunities and
education facilities for the residents of that area. In the year 1957 the
Public Employ- ment (Requirement as to Residence) Act was enacted inter alia to
provide for employment opportunities for residents of Telangana area. Some of
the relevant provisions were held to be unconstitutional by the Supreme Court
due to a variety of causes. The working of the safeguards gave rise to dis-
satisfaction sometimes in the Telangana area and sometimes in the other areas
of the State and even led to violent agitations. A consensus was arrived 33
among several leaders of Andhra Pradesh to make a concerted effort to analyse
the factors which have been giving rise to the dissatisfaction and they
suggested certain measures known as "Six-Point Formula" and the same
has been endorsed by the State Government. A bill was brought forward to
provide for necessary constitutional authority for giving effect to this
formula and the same became the Constitution (Thirty-Second) amendment Act
under which Article 371D was introduced. The relevant provisions of this
Article for our purpose are as under:
"371-D.
Special provisions with respect to the State of Andhra Pradesh-(1) The
President may by order made with respect to the State of Andhra Pradesh
provide, having regard to the requirements of the State as a whole, for
equitable opportunities and facilities for the people belonging to different
parts of the State, in the matter of public employment and in the matter of
education and different provisions may be made for various parts of the State.
(2) An
order made under clause (1) may, in particular:- (a) require the State
Government to organise any class or classes of posts in a civil service of, or
any class or classes of civil posts under, the State into different local
cadres for different parts of the State and allot in accordance with such
principles and procedure as may be specified in the order the persons holding
such posts to the local cadres so organised;
(b)
specify any part or parts of the State which shall be regarded as the local
area- (i) for direct recruitment to posts in any local cadre (whether organised
in pursuance of an order under this article or constituted otherwise) under the
State Government;
(ii) for
direct recruitment to posts in any cadre under any local authority within the
State; and (iii) for the purpose of admission to any University within the
State or to any other educational institution which is subject to the control
of the State Government;
XX XX XX
(10) The provisions of this article and of any order made by the President thereunder
shall have effect notwithstanding anything in any other provision of this
Constitution or in any other law for the time being in force." 34 It may
be noted that clause (3) provides for constitu- tion of an Administrative
Tribunal. Now we may note some of the relevant provision in the Presidential
Order. In para 2 definitions of the various expression used in the Order are
given. They read thus:
"Para
2. Interpretations: - (1) In this Order, unless the co text otherwise requires:-
(a) xx xx xx (b) 'direct recruitment' includes recruitment made on a temporary
basis but does not include recruitment made in pursuance of any scheme approved
by the State Government providing for the regularisation of the services of
persons holding posts on a temporary basis before the commencement this order;
(c)
'local area' in relation to any local cadre, means the local area specified in
paragraph 6 for direct recruitment to posts such local cadre, and includes, in
respect of posts belonging the category of Civil Assist- ant Surgeons, the
local area specified in sub-paragraph (5) of paragraph 8 of this Order;
(d) 'local
authority' does not include any local authority which is not subject to the
control of the State Government;
(e)
'local cadre' means any local cadre of post under the State Government organised
in pursuance of paragraph 3, or constituted otherwise for any part of the
State;
(f) 'local
candidate' in relation to any local area, means a candidate who qualifies under
paragraph 7 as a local candidate relation to such local area;
(g) xx
xx xx (h) 'Schedule' means a Schedule appended to this Order;
(i) xx
xx xx (j) 'specified gazetted category' means any gazetted category specified
in the Third Schedule and includes any other gazetted category notifies as such
by the Central Government;
(k) xx
xx xx (l) xx xx xx 35 (m) 'Zone' means a zone specified in the Second Schedule
comprising the territories mentioned therein.
xx xx xx
Para 3. Organisations of Local Cadres:-
(1) The State Government shall, within a period of eighteen 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.
(G.O.
Ms. No. 794, G.A.(A) dated 12.11.1976) "Provided that, notwithstanding the
expira- tions of the said period, the president may by order, require the State
Government, whenever he considers it expedient so to do, to orga- nise any
classes of posts in the civil serv- ices of, and classes of civil posts, under
the State into different local cadres for differ- ent parts of the State."
(Proviso is added as per G.O. Ms. No. 34, G.A.D. (SPFA), dated 24th January,
1981).
(2)
The posts belonging to the category of Junior Assistant, and to each of the
other categories equivalent to, or lower than that of a Junior Assistant in
each department in each district shall be organised into a sepa- rate cadre.
Explanation:-
For the purposes of this sub- paragraph, subparagraph (1) of paragraph 6, and
sub-paragraph (1) of paragraph 8, a cate- gory shall be deemed to be equivalent
to or lower than that of a Junior Assistant if the minimum of the scale of pay,
of a post belong- ing to a category or where the post carries a fixed pay, such
fixed pay equal to or lower than the minimum of the scale of pay of a Junior
Assistant.
(3)
The posts belonging to each non-gazetted category, other than those referred to
in sub-paragraph (2), in each department in each zone shall be organised into a
separate cadre.
(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-paragraphs (3) and (4), the State
Govern- ment may, where it considers it expedient to do so and with the
approval of the Central Government, organise the posts belonging to any of the
categories 36 referred to therein, in any department, or any establishment
thereof, in two or more continu- ous zones into a single cadre.
xx xx xx
Para 4. Allotment 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.
(2) In
allotting persons to local cadres due regards 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
senior- ity, 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 languages spoken and the law in force in the
part of the State lot which the local cadre is organised;
(e) preference
of the persons concerned for allotment to any local cadre, where feasible.
xx xx xx
Para 5. Local cadres and transfer of persons:- (1) Each part of the State for
which a local cadre has been organised in respect of any category of posts,
shall be a separate unit for purposes of recruitment, appointment, discharge,
seniority, promotion and transfer, and such other matters, as may be specified
by the State Government, in respect of that category of posts.
xx xx xx
Para 13. Certain appointments and promotions to be provisional:- Any certain
appointments and promotions made after the commencement of this order or any
order made in pursuance of the proviso to paragraph 3, as the case may be, and
before any local cadre has been orga- nised under the provisions of this Order
made in pursuance of the Proviso to 37 paragraph 3, to any post which is
required to be included in such cadre shall be provisional and shall, within a
period of twelve months after such organisation, be reviewed and readjusted in
accordance with the provisions of this order.
Explanation:-
For the purposes of this para- graph, any local cadre shall be deemed to be organised,
with the allotment of persons to it under paragraph 4. (Substituted as per G.O.
Ms.
No. 234, GAD (SPF-A) Dept., dated 24th Jan., 1981).
xx xx xx
THE SECOND SCHEDULE (See paragraphs 2 (1) (m) and 8 (4) Zones Zone I Shrikakulam
and Visakhapatnam districts.
Zone
II East Godavari, West Godavari and Krishna districts.
Zone
III Gunrur, Prakasam and Nellore districts.
Zone
VI Chittoor, Cuddapah, Anantapur and Kurnool districts.
Zone V
Adilabad, Karimnagar, Warangal and Khammam districts.
Zone
VI Hyderabad, Nizamabad, Mahabubnagar, Medak and Nalgonda districts.
THE
THIRD SCHEDULE [See paragraphs 2(1) (j) and (4) Specified Gazetted Categories
Sr. No. Category Name of the Department (1) (2) (3) xx xx xx
30.
Assistant Engineers Panchyati Raj Enginee- ring Department 30 A. Junior
Engineers do xx xx xx
40.
Junior Engineers Public Works Department (Irrigation)
41.
Assistant Engineers Public Works Department (Irrigation)
42.
Junior Engineers Public Works Department (R&B)
43.
Assistant Engineers - do-" (emphasis supplied ) 38 It is clear from these
provisos that the primary purpose of Article 371D was to promote speedy
development of the backward areas of the State of Andhra Pradesh with a view to
secure balance in the development of the State as a whole and to provide
equitable opportunities to different areas of the State in the matter of
education, employment and career prospects in public service. Accordingly the
Presidential Order was made.
From
the above extracted provisions of the Order it can be seen that State of Andhra
Pradesh was divided into six zones and the 4th zone, with which we are
concerned, com- prises of Chittoor, Cuddapah, Anantpur and Kurnool Dis- tricts.
As noted above Schedule III enumerates various specified gazetted categories
and Junior Engineers and Assistant Engineers in the Panchayati Raj Engineering
De- partment as well as in the Public Works Department (Irriga- tion) and
(Roads and Buildings) are among those various categories mentioned therein.
Paragraph 3 provided for organisation of local cadres in respect of classes of
posts in the civil services in the State of Andhra Pradesh. Under para 3(4) the
posts belonging to each specified category in each department in each zone
shall be organised into a separate cadre. Para 4 provides for the allotment of
persons holding posts into such local cadres to be organised. Para 5 which is
important, lays down that each part of the State for which a local cadre has
been organised in respect of any category of posts, shall be a separate unit
for purposes of not only recruitment etc. but also in respect of promotion.
Para
13 lays down that in certain appointments or promotions after the commencement
of the Presidential Order or any order made in pursuance of the proviso to
paragraph 3 and before any local cadre has been organised, shall be provi- sional
and shall within a period of twelve months after such organisation of local
cadre, be reviewed and readjusted in accordance with the provisions of the
Presidential Order.
A.P. Panchayati
Raj Engineering Service Rules were framed in the year 1963. These Rules provide
for the ap- pointments of different categories of engineers. After the
Presidential Order was issued a new Rule 2-A was introduced on 26.11.79 to
bring the State Rules in conformity with the provisions of the Presidential
Order.
Rule
2-A reads thus:
"Rule
2-A Unit of Appointment: For purposes of recruitment,appointment, discharge for
want of vacancy, re-appointment, seniori- ty, transfer, promotion and
appointment as full member in respect of category 4, Deputy Executive
Engineers, each 39 zone comprising the districts specified against each shall
be a separate unit:
xx xx xx
Zone IV: Chittoor, Cuddapah, Anantpur and Kurnool districts.
xx xx xx
Provided that the post of Deputy Executive Engineers in the office of the Chief
Engineer (Panchayati Raj) shall be filled on a tenure basis by drafting persons
equitably from different units and the period of tenure shall not ordinarily
exceed three years;
Provided
further that the posts of Deputy Executive Engineers in the Rigs Divisions
notified as Special Officers under the Andhra Pradesh Public Employment (Organisations
of Local Cadres and Regulation of Direct Recruit- ment) Order, 1975 shall be
filled by drafting persons from the units over which the respec- tive Rigs Division
is having jurisdiction.
(G.O.
Ms. No. 1024 PR, dated 26.11.1979)." Regarding the scope of this rule it
is the submission of the learned counsel for the State of Andhra Pradesh that a
combined reading of Rule 2-A read with para 13 of the Presi- dential Order
would show that the said Rule has retrospec- tive effect, therefore the
Government is at liberty to revise the promotions made otherwise then on the
basis of the zonal seniority list. But Shri Sitaramiah, learned counsel,
submitted that the said Rule cannot be given retro- spective effect and the
same applies to vacancies arising thereafter and therefore the promotions
already made should not be disturbed.
It is
an admitted fact that there was a Statewide list of Junior Engineers before
28.10.75 namely before the Presi- dential Order was made. Questioning some of
the promotions made by the Government, representation petitions were filed
before the A.P. Administrative Tribunal. In such matters the Tribunal observed
that as a precautionary measure the jun- iors to the petitioners therein in the
Statewide list cannot be promoted before the petitioners' cases are considered
for the appointment to the post of Executive Engineer which is a higher post.
In all the orders passed by the Tribunal there is an indication that the Statewide
list should be the basis for promotion. Though they appear to be in the nature
of interim 40 directions but the ratio relied upon is that the promotion should
be on the basis of the Statewide list. Therefore the question that has been
canvassed by the State Government in all these matters is that the observation
and the directions given by the Administrative Tribunal are opposed to the very
object underlying the Presidential Order and is contrary to various provisions
therein.
At
this juncture it is essential to note the principle and object underlying the
zonal system as provided for in the Presidential Order. We have already noted
that the object underlying Article 371D is to promote speedy develop- ment of
the backward areas and to provide equal opportuni- ties to different areas of
the State in the matter of em- ployment etc. This Article is a special
provision which makes departure from the general scheme of the Constitution.
In
High Court of Andhra Pradesh and Ors. v. V.V.S. Krishnamurthy and Ors., [1979]
1 SCR 26 after referring to the Statement of Objects and' Reasons of the
Constitution (Thirty-Second) Amendment Act, it was observed as under:
"It
will be seen from the above extract, that the primary purpose of enacting
Article 371D was two-fold; (i) To promote "accelerated development of the
backward areas of the State of Andhra Pradesh so as to secure the balanced
development of the State as a whole". and (ii) to provide "equitable
opportunities" to dif- ferent areas of the State in the matter of
education, employment and career prospects in public service.
(1) To
achieve this primary object, Clause (1) of Article 371D 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 educa- tion." Clause (2) of the Article is
complemen- tary to Clause (1). It particularises the matters which an order
made under Clause (1) may provide. For instance, its sub-clause (c) (i) enables
the President to specify in his Order, "the extent to which, the manner in
which and the conditions subject to which, preference or reservations shall be
given or made in the matter of direct recruitment to posts in any local cadre
under the State Government or under any local authority. Sub clause (c) further
makes it clear that resi- dence for a specified period in the local area, can
be made a condition for recruitment to any such local cadre. Thus, Clause (4) also,
directly is designed to achieve the primary object of the legislation." 41
The Presidential Order was made keeping in view this Object and suitable
provisions are inserted. With a view to achieve this Object and in conformity
with the provisions of the Order, the State is divided into six zones and
certain specified gazetted services are included in the local cadres. The A.P. Panchayati
Raj Engineering Services is one such and two categories of posts namely Junior
Engineers and Assistant Engineers are such zonal posts. It may be men- tioned
here that the validity of the Presidential Order is not being questioned.
Therefore we have to proceed on the basis that all the provisions of the
Presidential Order are valid.
The
further and rather the main submission of the re- spondents is that the
Presidential Order only lays down the criteria for claiming eligibility as a
local candidate on the basis of the period of residence or of stay in that
local area and reservations are meant to be made to the local cadre only in
respect of direct recruitment to the said posts mentioned therein and therefore
the power con- ferred under the Article should be confined only to direct
recruitment. In this context the learned counsel also relied very much on the
expressions used in Article 371D (1) and (2). The learned counsel also
submitted that initially the Junior Engineers are selected by the Public
Service Commis- sion and are given a ranking and they are allotted to the local
cadre and to that extent that may become a zonal post.
But
when it is a question of promotion to the higher post of Assistant Engineer
though shown as a zonal post by virtue of being included in the local cadre, it
should be only on the basis of the seniority in the Statewide list originally
prepared by the public Service Commission. The learned counsel very much relied
on the expression 'in the matter of public employment' and the other
expressions used in Article 371D (1) and (2).
First
we shall consider the submission that the purport of Article 371D and the
Presidential Order in respect of direct recruitment does not apply to
promotion. The expres- sion 'in the matter of public employment' in clause (1),
in our view, is of wider import. The public employment can be by way of direct
recruitment or by promotion. In The General Manager; Southern Railway v. Rangachari,
[1962] 2 SCR 586 this Court considered the scope of Articles 16 (1), (2) and
(4) and it was observed that Articles 16 (1) and (2) of the Constitution are
intended to give effect to Articles 14 and 15(1) of the Constitution and they
arc supplemented to each other. Regarding the meaning of the word
"employment" it is noted that:
"Article
16 (1) should, therefore, be con- strued in a broad and general, and not pedan-
tic and technical way, so construed, "matters relating to employment"
cannot mean merely matters prior to the act of appointment nor can
'appointment' to any 42 office mean merely the initial appointment but must
include all matters relating to employ- ment, whether prior or subsequent to
the employment, that are either incidental to such employment or form part of
its terms and conditions and also include promotion a selec- tion post.
"Although
Article 16(4) which in substance is an exception to Arts. 16 (1) and 16(2) and
should, therefore, be strictly construed, the court cannot in construing it
overlook the extreme solicitude shown by the Constitution for the advancement
of socially and education- ally backward classes of citizens." It is thus
concluded that Article 16(4) authorises the State to provide for reservation of
appointments as well as selection posts. At this juncture it may be noted that
Article 371D (10) declares that any order made by the Presi- dent shall have
effect notwithstanding anything in any other provision of the Constitution or
in any other law for the time being in force. Therefore notwithstanding
anything contained in the A.P. Panchayati Raj Engineering Service Rules, the
promotions have to be based on zonal list other- wise the very object sought to
be achieved as per Article 371D and the Presidential Order would be defeated. Shri
Sitaramiah, however, laid considerable stress on Article 371D (2) which
empowers the President to make an order "in particular" to specify
any part or parts of the State which shall be regarded as the local area for
direct recruitment in any local cadre. It is submitted that if clauses (1) and
(2) of Article 371D are read together the Presidential Order can make provision
only in respect of appointments by way of direct recruitment and cannot be
applied for promotion also.
But as
laid down in Rangachari's case the word "employment" should be
interpreted in a broad and general manner. The ratio therein should be applied
in interpreting the words "in the matter of public employment"
occurring in Article 371D also. Consequently it must be held that Article 371D
and the Presidential Order apply both for direct recruitment and for promotion
in respect of categories specified in the Third Schedule. Article 371D (2) does
not make any departure from this principle. The words "in particular"
therein only lay emphasis on the aspect of creating local cadres for different
parts of the State for the purpose of direct recruitment and treat such parts
as local areas. This does not in any manner restrict the scope of Article 371D
wherein it is clearly declared that in the matter of public employ- ment, the
President is empowered to make an order in the manner stated therein and the
public employment cannot but be interpreted to include promotion also. It
therefore emerges that Article 371D is in general terms and applies to the
public employment as a whole and Article 371D(2) in particular applies to
direct recruitment. It is only comple- mentary to clause (1) and particularises
43 the matters which an order made under clause (1) provides for. Any other
interpretation would defeat the object under- lying these two provisions.
The
other submission of Shri Sitaramiah, as already noted, is that even assuming
that Rule 2 (a) which came into existence in 1979 is valid and applies to
promotion also then it can have only prospective effect and all the promo- tions
prior to this Rule should be only on the basis of the Statewide list. In
considering this argument we have to bear in mind para 13 of the Presidential
Order which specifically lays down that certain appointments and promotions
after the commencement of the Order should be treated as provisional and the
same should be reviewed an readjusted in accordance with the Presidential Order
for the purpos of preparing the local cadres and allotting to the zones. The
learned coun- sel, however, relied on two judgments of this Court in Y. V. Rangiah
and Others etc. v. J. Sreenivasa Rao and Others etc., [1983] 3 SCC 284, and
N.T. Devin Katti and Others v. Karnataka Public Service Commission and Others,
[1990] 3 SCC 157, in support of his submission that the said Rule cannot be
given retrospective effect and that the promotions should be made only in
accordance with the unamended A.P. Pan- chayati Raj Engineering Service Rules,
1963. But having regard to the historical background and the object underly- ing
Article 371D and the Presidential Order and in particu- lar para 13 of the
Order the promotions, if any, made, should be treated only as provisional. If
Rule 2(a) is viewed from this angle particularly in the light of paras 5 and 13
of the Presidential Order it becomes clear that the said Rule has to be given
retrospective effect so that the promotions to the junior posts can be brought
in conformity with Article 371D and the Presidential Order. Accordingly any
promotions made should be treated only as provisional and they should be
reviewed and readjusted.
This
leads us to the question whether the promotions from the post of Junior
Engineer to Assistant Engineer should be based on zonal seniority list or on
the Statewide seniority list. Rule 2(a) makes it abundantly clear that for the
purpose of recruitment, appointment, promotion, transfer etc. each zone shall
be a separate unit. Para 5 of the Presidential Order is also
to the same effect. When once each zone is treated as a separate unit for the
purpose of promotion also in respect of zonal posts then by virtue of Article
371D and the Presidential Order, as observed above, the promotion from the post
of Junior Engineer to the post' of Assistant Engineer which are both zonal
posts, should be on the basis of the zonal seniority list inasmuch as the post
of Junior Engineer and the next promotion post namely" Assistant Engineer
are included in the local cadre and the zonal list as we find-in the Third
Schedule. With regards the higher posts which are not included in the local
cadre and which are Statewide posts, it 44 becomes obvious that the Statewide
seniority list of the Assistant Engineers of all zones should be prepared and
that should be the basis of promotion to the post of Executive Engineer which
is not a zonal post. Therefore it emerges that the directions given by the
Tribunal to ensure that no Junior Engineer is promoted earlier than their
seniors in the Statewide seniority list to the post of Executive Engi- neer,
should be quashed.
Shri Sitaramiah,
however, pointed out certain anamolies if such a principle is to be followed.
According to the learned counsel, if the promotions are to be made only on the basis
of the zonal list than there is every possibility of some of the seniors in the
Statewide list not getting promotions and the same would result in some of the
juniors becoming seniors which would ultimately affect the promo- tional
avenues for the Statewide higher post like Executive Engineer. But it must be
noted that Article 371D is of exceptional nature and the object is to provide
equal oppor- tunities in the backward areas in respect of the specified posts
mentioned in the Third Schedule which are included in the local cadre which
thus became zonal posts. As mentioned in para 5 of the Presidential Order and
Rule 2 (a) of the Engineering Service Rules such zones should be treated as
separate units for the purpose of promotions also. Therefore there is valid
nexus to the object that is sought to be achieved and even if there is some anamoly
it cannot on that basis be said that such promotions for zonal posts on the
basis of the zonal seniority list amounts to discrimination.
In S.Prakasha
Rao and another v. Commissioner of Commercial Taxes and Others, [1990] 2 SCC
259, a Bench of three Judges of this Court affirmed the view taken by the
Administrative Tribunal, Andhra Pradesh that the zonal seniority list prepared
pursuant to the initial organisation and creation of local cadres is to be
maintained and such zonal seniority list is the criteria for promotion.
In the
result we hold that all promotions of Junior Engineers (redesignated as
Assistant Executive Engineers) to the next higher post of Assistant Engineers
(re-designated as Deputy Executive Engineers) have to be made on the basis of
the zonal seniority lists as indicated above and not on the basis of the
Statewide seniority list of Junior Engi- neers. The promotions made after the
Presidential Order dated 18.11.75 should be treated as provisional and the
Government is permitted to review these promotions on the basis of zonal
seniority lists and re-adjust the same. All the future promotions from the post
of Junior Engineer to the post of Assistant Engineer should necessarily be made
on the basis of the zonal seniority lists. For the purpose of promotion to the
post of Executive Engineer, which is not a zonal post, a Statewide seniority
list of the Assistant Engineers of all zones should be prepared and such
Statewide seniority 45 list should form the basis of promotion to the post of
Executive Engineer. The State Government is accordingly directed to prepare
such lists i.e. zonal seniority lists of various zones for the purpose of
promotions from Junior Engineers to Assistant Engineers within the zones and
also Statewide seniority list of the Assistant Engineers of all zones for the
purpose of promotion to the post of Executive Engineer. Such of the Directions
given by the Tribunal in the matters before us which are contrary to or
different from the above conclusions, remain quashed. The inter-se seniority
and the consequent promotions of respondent Nos. 1 to 5 in Civil Appeal No.
3935/88 as well as the petitioners in Special Leave Petition (Civil) No.
2150/87 shall be determined subject to the above directions. All these mat- ters
are disposed of accordingly with the above directions.
In the
circumstances of the cases, there will be no order as to costs.
G.N.
Appeals disposed of.
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