Saheb & Ors Vs. A.P. Public Service Commission & Ors  INSC 114 (19 February 1998)
V. Manohar, D.P. Wadhwa D.P. Wadhwa. J.
appellants, numbering three, were directly recruited as Assistant Directors of
Sericulture under The Andhra Pradesh Industries Service Rules by the Andhra
Pradesh Public Service Commission after following the procedure prescribed.
Their appointments were challenged before the Andhra Pradesh Administrative
Tribunal (for short `the Tribunal') by Inspectors of Sericulture, being
respondents 4 to 7. Under the relevant Andhra Pradesh Industries Service Rules
post of Assistant Director Sericulture is a promotional post from the Inspector
4 to 7 who challenged the appointment of the appellants were also candidates
for appointment as Assistant Directors Sericulture by direct recruitment but
they were not able to quality. They challenged the appointment of the
appellants on the following three grounds:
According to the Rules, the question of direct recruitment arises only if there
are more than five permanent vacancies. If direct recruitment is to be made for
three posts, therefore should be 15 permanent vacancies. There were not so many
will not be in public interest to recruit candidates to the posts of Assistant
Directors of Sericulture without practical experience when candidates with
practical experience were available.
The proposal to make direct recruitment affects the right of the petitioners
who are fully qualified and eligible for promotion.
2 and 3 were not considered by the Tribunal in any detail as those appeared to
be meaningless. As a matter of fact respondents 4 to 7 were initially appointed
as Assistant Inspectors of Sericulture and subsequently promoted as Inspectors
of Sericulture. These respondents when they were appointed as Assistant
inspectors of Sericulture had not practical experience in Sericulture industry
as envisaged in the Service Rules yet they were sent for 15 months training for
a Diploma in Sericulture. It is not that the appellants did not possess the
qualification prescribed for appointment to the post of Assistant Director of
Sericulture, the only ground which found favour with the Tribunal in quashing
their appointment was that there were no permanent posts of Assistant Director
of Sericulture under the Rules and as such the appointment of the appellants
was not legal. The impugned judgment of the Tribunal is dated March 27. 1989.
The appellants filed a review petition before the Tribunal which was dismissed
by the Tribunal by order dated August 9. 1989. The Tribunal affirmed its view
that a substantive vacancy and a permanent post were not the same. In the
impugned judgment dated March
27, 1989, the Tribunal
observed as under:
according to Rules, appointment to the posts of Assistant Sericulture Experts redesignated
as Assistant Director of Sericulture can be made either by direct recruitment
or by transfer from A.P. Industries Subordinate Services. Appointment by direct
recruitment can be made only when there are moer than five permanent posts.
According to the Respondents, there are 30 posts of Assistant Directors of
have not stated how many of these are permanent posts. They have however stated
that 17 posts of Assistant Directors are continuing for more than 10 years.
course of the hearing the learned G.P. stated that there were only two
permanent posts. According to the explanation below Rule 6 of the A.P. State and
subordinate Service Rules these are in the nature of substantive vacancies and
direct recruitment can be made against such posts. But the question is whether
substantive vacancies are synonymous with permanent posts. In the course of the
hearing, the counsel for the petitioner argued that a permanent vacancy is
different from a substantive vacancy as defined in the Explanation below Rule 6
of the A.P. State and Subordinate Service Rules. On the other hand, the
counsel for the Respondents argued that there is no such difference and that a
substantive vacancy should be deemed to be a permanent post for purposes of the
rules. In this connection, they referred to the Webster Dictionary
(Encyclopedic Edition) in which the word `substantive' is said to mean
permanent. It seems to me however, the explanation below Rule 6 of the State
and Subordinate Service Rules makes a distinction between vacancies in the
permanent cadre and other substantive vacancies.
all vacancies in the permanent cadre are substantive it cannot be said that all
substantive vacancies are permanent. The term `substantive' seems to be broader
in connotation than the terms `permanent post'. The term `substantive
vacancies' cannot therefore be regarded as synonymous with permanent posts.
While Rule 8 of the General Rules permits direct recruitment against
substantive vacancies, according to the proviso (6) below Rule 2 of the
Industries Service Rules direct recruitment can be made only when there are
more than five permanent posts. It is well established that where there is a
difference between a General Rule and a Special Rule the latter will prevail.
In the circumstance, I am of the opinion that unless it is established that
there are more than five permanent posts as distinguished from 5 substantive vacancies
direst recruitment is not permissible in terms of these rules." It is this
reasoning of the Tribunal which is challenged before us and it is submitted by
the appellants that this led to miscarrige of justice.
this stage we may refer to the relevant Rules on the subject .
Andhra Pradesh Industries Service Rules Rule 1. Constitution:- The service
shall consist of the following categories of Officers, namely:- Assistant Sericultural
1. By direct recruitments; or Expert 2. By transfer from category-I (redesignated
as Assistant (Sericultural Inspector/ Director of Sericulture) Supervisors) or
Class IX of the A.P. Industries Subordinate Service.
Appointment to the post of Sericulture Export by direct recruitment shall be
made only when there are more than 5 permanent posts. Our of every four
permanent vacancies of Asstt. Sericulture Export the third vacancy shall be filled
or reserved to be filled by direct recruitment.
by B.O.Ms. No 315, Inds, Dt. 26.4.1973 w.e.f. 26 (2) Andhra Pradesh State and Subordinate Service Rules Rule
6. Method of Recruitment:- Where the normal method of recruitment to any
service, class or category is neither solely by direct recruitment nor solely
by transfer but is both by direct recruitment and by transfer –
the proportion or order in which the special rules concerned may require
vacancies to be filled by persons recruited direct and by those recruited by
transfer shall be applicable only to substantive vacancies in the permanent
person shall be recruited direct only against a substantive vacancy in such
permanent cadre and only if the vacancy is one which should be filled by a
direct recruit under the special rules referred to in clause (a);
that for special reasons, direct recruitment may also be made against the
temporary posts.(Added by G.O.Ms. No.739, GA (Ser-A), Dt.22-12.1984).
to all other vacancies shall be made by transfer:
that nothing in this rule shall adversely affect any person who on the date of
issue of the special rules referred to in clause (a) was a probationer in such
service, class or category, as the case may be.
For the purpose of this rule, notwithstanding anything contained in these rules
or special or ad hoc rules `substantive vacancies' shall mean all vacancies in
the permanent cadre, all vacancies in the posts which have been in existence
for more than 10 years. All vacancies in 75% of the posts which have been in
existence for more than 3 years but less than 10 years and all vacancies in 50%
of the posts which have been in existence for more than one year but less than
3 years. (G.O.Ms.No. 310, G.A. (Ser.D). Dt.24.5.1984 w.e.f. 8-3-1983).
these Rules we think there can be hardly any scope for controversy raised in
the matter. Requirements of filling up of three posts of Assistant Director
Sericulture by direct recruitment are
Existence of more than 5 permanent posts in the cadre and
Possession of prescribed qualifications by the incumbent.
is no dispute that the appellants did possess the prescribed qualifications.
Tribunal has noted that the State Government stated that there were 30 posts of
Assistant Directors Sericulture but it was not stated as how many of these were
of permanent posts though 17 posts had been continuing for the last more than
10 years. That being so under Explanation (amended w.e.f. 8.3.1983) to Rule 6
of the A.P. State and Subordinate Service Rules these 17 posts would
certainly be permanent posts in the permanent cadre of Assistant Director
Sericulture and any vacancy in these posts would be a substantive vacancy to be
filled by a direct recruit under Rule 6. Three vacancies for direct recruitment
were thus clearly available. Contention raised by the respondents 4 to 7
therefore that there were no permanent posts of Assistant Director of
Sericulture and therefore the direct recruitment by the A.P. Public Service
Commission was illegal was not correct. Thus, while notifying the 3 vacancies
for direct recruitment the ratio fixed in sub-rule II (f) of Rule 2 of the A.P.
Industries Service Rules was followed keeping in view the availability of such
number of permanent posts. As a matter of fact, it is the stand of the State
Government that there were 4 posts of Assistant Director of Sericulture as
against 3 which were available for direct recruitment and the A.P. Public
Service Commission was informed accordingly on October, 31, 1988. It has also
been pointed out by the State Government that there are standing orders issued
by GOMs No.47 dated January 31, 1987 where in it was provided that there should
be at least 30% of the posts were to be earmarked for direct recruitment and
that there is yet another GOMs No. 739 dated 22.12.1984 which provides for
direct recruitment for special reasons even against temporary posts. To this
again the Tribunal was of the view that these GOMs could not be made applicable
unless special rules were suitably amended.
qualifications required for the post of Assistant Director Sericulture under
direct recruitment are a degree in Botany, Zoology, Agriculture of any recognised
University with Diploma in Sericulture of a recognised Institute. The State
Government has also pointed out that the contention of the respondents 4 to 7
that it would not be in public interest to recruit Assistant Director of
Sericulture by direct recruitment without having practical experience was also
not correct as by GOMs 315 dated April 16, 1973 in Rule 7(ii) it had been added
that the candidate selected by direct recruitment to the post of Assistant
Sericulture Expert Assistant Director of Sericulture) shall during the period
of probation and before posted with regular duty would undergo a course of
training for a period of 6 months in Mulberry cultivation, silkworm rearing and
noted above post of Assistant Director of Sericulture is a promotional post
from Inspector of Sericulture and respondents 4 to 7 would certainly be
considered for promotion in due course on merit to fill up the post of
Assistant Director of Sericulture available to be filled for by promotion.
There is no dispute that post of Assistant Sericulture Expert is redesignated
as Assistant Director of Sericulture and in our view the Tribunal unnecessarily
raised this controversy. In the petition filed by the respondents before the
Tribunal they themselves sought a declaration that the rights of the
petitioners and other to have their cases considered for promotion to the post
of Assistant Director of Sericulture (Assistant Sericulture Expert) could not
be taken away by making direct recruitment to the said posts contrary to the
Statutory Rules and they had also sought quashing of the advertisement No. 3/88
dated 7.5.88 of the Andhra Pradesh Public Service Commission published in Deccan
Chronicle dated 12.5.88 so far as it related to the filling up of the posts of
Assistant Director of Sericulture. Thus the whole controversy which arose
before the Tribunal was if the substantive vacancies were synonymous with
permanent posts. The Tribunal held that the term `substantive' seemed to be
broader in connotation and substantive vacancies could not therefore be
regarded as synonymous with permanent posts under the Rules. This, according to
us, is not correct. The Tribunal, in our view, quite unnecessarily raised of
its own difference between special and general laws. Constriction of A.P.
Industries Service Rules and the A.P.
State and Subordinate Service Rules has
to be done harmoniously and as a matter of fact there is no conflict between
the two set of Rules. The appellants are right in their submission that
substantive vacancies are synonymous with the vacancies in permanent posts. The
three appellants, being the directly recruited Assistant Director Sericulture,
have filled the substantive vacancies in the permanent cadre of the Assistant
this view of the matter 3 posts of Assistant Director of Sericulture were
clearly available to be filled by direct recruitment to which the appellants
have been appointed. We, therefore, allow the appeals, set aside the impugned
order of the Tribunal holding otherwise and would dismiss the petitions filed
by the respondents 4 to 7 before the Andhra Pradesh Administrative Tribunal.