Rao & Ors Vs. State of A.P. & Ors  Insc 606 (7 November 2001)
Pattanaik, Ruma Pal & Arijit Pasayat Arijit Pasayat, J.
J U D
G M E N T
Doubting correctness of the view expressed in two decisions rendered by two Honble
Judges in State of Andhra
Pradesh and Anr. vs.
V. Sadanandam & Ors. (1989 Supp. (1) SCC 574) and Govt. of A.P. & Anr. vs.
B. Satyanarayana Rao (Dead)by Lrs. & Ors. (2000 (4) SCC 262) regarding
scope and ambit of para 5(2) of the Presidential Order issued under Article
371-D of the Constitution of India 1950 (in short the Constitution) a reference
has been made to a three Judges Bench, and that is how the matter was listed
question for consideration in these appeals is whether the judgment of Andhra
Pradesh Administrative Tribunal (in short Tribunal) striking down certain
provisions of the Special Rules framed under Article 309 of the Constitution
holding them to be violative of the Presidential Order issued under Article
371D of the Constitution is correct.
Background facts in a nutshell are as under:- Prior to the formation of the
State of Andhra Pradesh on 1.11.1956 and thereafter, the Labour
and Factories Department consisted of 3 units, namely, Labour, Factories and
Boilers. The employees belonging to the ministerial cadres in all the 3 units
had a channel of promotion to higher non-technical executive posts like
Assistant Inspector of Labour, District Inspector of Labour etc. Further
promotional avenues led to the posts of Assistant Commissioner of Labour,
Deputy Commissioner of Labour, Joint Commissioner of Labour and Additional
Commissioner of Labour. On 16.9.1963 Factories Unit in the department was
bifurcated and subjects relating to Shops and Establishment Act, Minimum Wages
Act, Motor Transport Workers Act and Payment of Wages Act in respect of
non-factory establishments were transferred to the Labour unit. On 8.12.1965
one more unit, namely, Establishment Unit was created in the Labour Department
by transferring non-technical posts of District Inspector of Labour (re-
designated as Labour Officer) and Assistant Inspector of Labour (re- designated
as Assistant Labour Officer) from the Factories Wing. Prior to this arrangement
the aforesaid non-technical posts were under the control of the Factories Wing.
On 15.9.1966 Government issued Rules under the proviso to Article 309 making
Superintendents in the Factories and Boilers Wings and Assistant Inspectors of Labour
retained in that Wing (re- designated as Assistant Inspector of Factories)
eligible for appointment by transfer as District Inspector of Labour (now Labour
Officer). On 28.1.1971 Government ordered that the ministerial staff in all the
4 units, namely, Labour, Factories, Boilers and Establishment at the
headquarters were to be treated as one unit. On 6.8.1974 Government ordered
that the Factories and Boilers units were to function with Chief Inspector of
Factories and Boilers as the head of the department, and the Labour and
Establishment units were to function under the control of Commissioner of Labour.
It was clarified that the ministerial staff in all the 4 units were eligible
for appointment by transfer to the post of Assistant Inspector of Labour
(re-designated as Assistant Labour Officer) and District Inspector of Labour
(re-designated as Labour Officer). On 18.10.1975 the Presidential Order was
issued under Article 371-D of the Constitution to provide for equitable
opportunities and facilities for the people belonging to different parts of the
State in the matter of public employment, education etc. On 20.5.1976
ministerial posts of Factories and Boilers Department were organized into Local
cadres pursuant to the Presidential Order. Similarly, the posts in the Labour
Department were also organised into local cadres. On 11.5.1977 posts of Labour
Enforcement Officer (previously designated as Deputy Inspector of Labour and
subsequently re-designated as Labour Officer) were organized into multi-zone
cadre posts. On 2.9.1977 by the Rules made under proviso to Article 309, UDCs
of the Labour Department and Factories and Boilers Department were made
eligible for recruitment by transfer to the posts of Assistant Inspector of Labour/Assistant
Inspector of Factories. On 20.7.1982 in G.O.503 the Government directed that
the concessions given in G.O.607 dated 6.8.1974 to the effect that the
ministerial staff in the Factories and Boilers Department shall be eligible for
appointment by transfer to the post of Assistant Inspector of Labour (Assistant
Labour Officer) and District Inspector of Labour (Labour Officer) shall
continue to the last person in the department as on 20.7.1982 and the
concession will be withdrawn in respect of persons appointed thereafter in the
Factories and Boilers department. The said concession was extended to the last
person in the department by a memorandum dated 19.5.1983. By G.O.Ms.No.72
Government issued Rules under proviso to Article 309 making Senior Assistant
belonging to the Factories and Boilers departments as well as Labour department
eligible for appointment by transfer to the post of Assistant Labour
Officer/Assistant Inspector of Factories. These were treated to be zonal non-gazetted
posts, unit of appointment being the zone. In G.O. Ms 170 Rules under proviso
to Article 309 were issued constituting the posts of Labour Officer into multi-
zonal cadre posts.
Ministerial employees of the Labour department challenged the Rules issued in G.O.Ms
72 dated 25.2.1986 and G.O.Ms.117 dated 28.5.1986 before the Tribunal. A Full
Bench of the Tribunal allowed the petitions and declared that the impugned
Rules to the extent they enable the ministerial employees of the Factories and
Boilers department or any other department to be considered for appointment to
the posts in Labour department are violative of paras 3 and 5 of the
Presidential Order and, therefore, were void.
liberty was given to the Government to create posts in the Factories and
Boilers Departments for persons who were regularly appointed more than 3 years
prior to the filing of the petitions before the Tribunal in the Executive posts
in Labour Department, without affecting the rights of the employees of the Labour
Department in the respective zones.
Tribunals conclusions essentially are as follows:- The Presidential Order was
enforced on 18.10.1975. The post of Senior Assistant is required to be organised
in a zonal cadre and for the Labour Department there has to be an additional
city cadre. Organising cadre in each department under para 3 includes
determination of cadre strengths both in respect of permanent and temporary
posts. In accordance with definition of cadre in the fundamental rules the
first step which was required to be taken for implementation of the
Presidential Order was localization of cadres by determining cadre strength of
each post required to be organised in local cadre. In Schedule Two of the
Presidential Order, the requirements indicated include geographical spread of
the zone and the ratio and also the administrative needs of the department. The
local cadre is the unit under para 5(1) of the Presidential Order for
recruitment, appointment, seniority, promotion and transfer. Therefore, the
zone is the unit for the organised cadre of the zone. Para 9 speaks of the carry forward of a post and not a
vacancy. According to para 5(1) the essential cadre of the department will be
unit for the purpose of recruitment, appointment, seniority, promotion,
transfer etc. Even a transfer to an equivalent post is required to be
restricted within the zone. Para 5(2) enables to the State Government to make
provisions for transfer of a person from and to a post in a category and a post
in the same category outside the zonal cadre. It is to be noted that the
essential cadre of each department is the unit not only for direct recruitment
but also for recruitment by transfer, seniority and promotion in the
department. An additional feeder category of ministerial employees organised in
six separate cadres of another department will violate the requirements of para
3(3) and 5(1), as the seniority in the departmental cadre should be the
criteria for the purposes of promotion and appointment to higher posts in the
department. Accordingly, the Rules were held to be violative of Article 371-D.
When the matter was placed for hearing after grant of leave reliance was placed
by learned counsel for the appellants on the decisions in V. Sadanandam (supra)
and B. Satyanarayana Rao (supra) to contend that this Court has upheld similar
provisions which have been struck down by the Tribunal as void. However, the
Bench hearing the appeals expressed doubt about the correctness of the view
expressed in these cases and as noted above the appeals were directed to be
placed before a 3 Judges Bench.
P.N. Mishra, learned senior counsel appearing for the appellants submitted that
the two decisions referred to above were squarely applicable to the facts of
this case. In any event the Rules have been made in consonance with the
Presidential Order and there is no inconsistency. Para 5(2) of the Presidential
Order authorises the State Government to pass necessary orders in the
circumstances indicated in the said paragraph.
to him, public interest is paramount in the case and taking into account the
background facts it was felt by the Government that in order to provide for
equitable opportunities and facilities for the people belonging to different
parts of the State in the matter of public employment, impugned Rules were
formulated. If the interpretation by the Tribunal is accepted it would mean the
denial of opportunities and would be against the very spirit of the
Presidential Order. It was also submitted that the expression transfer used in para
5(2) has to be given a wider meaning, and promotional prospects are clearly
inter-linked and cannot be divested from a transfer. If necessary, according to
him, a purposive interpretation has to be made.
contra, learned counsel appearing for the respondents who were the petitioners
before the Tribunal submitted that the very object of the Presidential Order is
to provide better employment facilities to persons of neglected areas and the
scope for a departure is rather limited and if the State wanted to make a
departure it is authorized to do so within the four corners of the
prescriptions in the Presidential Order. Transfer according to him, is
permissible in respect of similar posts, and by no stretch of imagination this
is permissible to include a promotional prospect or avenue.
Learned counsel for the State of Andhra Pradesh submitted that though it is contended by appellant about
States stand before the Tribunal being correctness of the impugned Rules, yet
on a closer reading of the provisions it has been noticed that the Tribunals
Judgment does not suffer from any infirmity and, therefore, appeals were not
filed by the State. It is also pointed out that supernumerary posts have been
created to effectuate the Tribunals judgment.
order to appreciate the rival submissions, it would be necessary to note a few
statutory provisions which have reliance so far as the dispute is concerned.
Article 371-D so far as relevant reads as follows:- 371D.(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.
order made under clause (1) may, in particular .
require the State Government to organize 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 organized;
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
direct recruitment to posts in any cadre under any local authority within the
State; and (iii) for the purposes of admission to any University within the
State or to any other educational institution which is subject to the control
of the State Government;
the extent to which, the manner in which and the conditions subject to which,
preference or reservation shall be given or made (i) in the matter of direct
recruitment to posts in any such cadre referred to in sub-clause (b) as may be
specified in this behalf in the order;
in the matter of admission to any such University or other educational
institution referred to in sub- clause (b) as may be specified in this behalf
in the order, to or in favour of candidates who have resided or studied for any
period specified in the order in the local area in respect of such cadre,
University or other educational institution, as the case may be.
The President may, by order, provide for the constitution of an Administrative
Tribunal for the State of Andhra Pradesh to exercise such jurisdiction, powers
and authority [including any jurisdiction, power and authority which immediately
before the commencement of the Constitution (Thirty-second Amendment) Act,
1973, was exercisable by any court (other than the Supreme Court) or by any
tribunal or other authority] as may be specified in the order with respect to
the following maters, namely:- (a) appointment, allotment or promotion to such
class or classes of posts in any civil service of the State, or to such class
or classes of civil posts under the State, or to such class or classes of posts
under the control of any local authority within the State, as may be specified
in the order;
seniority of person appointed, allotted or promoted to such; class or classes
of posts in any civil service of the State, or to such class or classes of
civil posts under the State, or to such class or classes of posts under the
control of any local authority within the State, as may be specified in the
other conditions of service of persons appointed, allotted or promoted to such
class or classes of posts in any civil service of the State or to such class or
classes of civil posts under the State or to such class or classes of posts
under the control of any local authority within the State, as may be specified
in the order.
Notwithstanding any judgment, decree or order of any court, tribunal or other
authority (a) no appointment, posting, promotion or transfer of any person
made before the 1st day of November, 1956, to any post under the Government of,
or any local authority within, the State of Hyderabad as it existed before that
made before the commencement of the Constitution (Thirty-second Amendment) Act,
1973, to any post under the Government of, or any local or other authority
within the State of Andhra Pradesh; and (b) no action taken or thing done by or
before any person referred to in sub-clause (a), shall be deemed to be illegal
or void or ever to have become illegal or void merely on the ground that the
appointment, posting, promotion or transfer or such person was not made in
accordance with any law, then in force, providing for any recquirement as to
residence within the State of Hyderabad or, as the case may be, within any part
of the State of Andhra Pradesh, in respect of such appointment, posting,
promotion or transfer.
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.
Rules: (so far as relevant read as follows).
D E R
following notification shall be published in the Andhra Pradesh Gazette:-
In exercise of the powers conferred by the proviso to Article 309 of the
Constitution of India, the Governor of Andhra Pradesh hereby makes the
following Special Rules for the posts of Assistant labour Officers in the
Andhra Pradesh Labour Subordinate Services:
rules hereby made shall be deemed to have come into force with effect from the 2nd September, 1985;
1. CONSTITUTION: this category
shall consist of Assistant Labour Officers including Labour Inspectors of
factories in the Andhra Pradesh Labour Subordinate Service.
2. APPOINTMENT: Appointment to
the category shall be made :
recruitment by transfer from the categories of senior assistants and senior
stenographers of the Labour Department and Factories and Boilers Department in
the Andhra Pradesh Ministerial Services restricted to those working in the
zones in which the vacancies arise;
recruitment by transfer from among the personnel working in the Labour Welfare Centres
of the Labour Department under the Andhra Pradesh General Subordinate Service,
restricted to those working in the zones in which the vacancies arise.
that all appointments by transfer to the category shall be made on grounds of
seniority cum efficiency.
further that among the senior assistants, senior stenographers and the
personnel working in the Labour Welfare Centres, in the Labour Department, the
appointment to the post of Assistant Labour Officers shall be made in the ratio
of 8:1:1 respectively in the following rotation:-
Welfare Centre Staff
also that in a unit of 10 vacancies other than leave vacancies, the 1st, 4th,
7th and 10th vacancies shall be filled in by direct recruitment and the
remaining six vacancies shall be filled in the appointment by transfer.
also that among the Senior Assistants and senior Stenographers of the
Directorate and the senior assistants and senior stenographers of the
subordinate offices, the appointment shall be in the ratio of 2:3 respectively
in the following rotations:
vacancy - Subordinate Office 2nd vacancy - Directorate Office 3rd vacancy -
Subordinate Office 4th vacancy - Directorate Office 5th vacancy - Subordinate
Office Provided also that if an eligible candidate belonging to Directorate
Office or Subordinate Office including Labour Welfare Centre Staff, is not
available for appointment in the turn allotted for them in the order of
rotation, the turn allotted for them in the order of rotation, the turn shall
lapse and the vacancy shall be filled in by candidate of next turn in the order
the Deputy Commissioner of Labour in the respective zones concerned shall be
the appointing authority for the posts of Assistant Labour Officers.
UNIT OF APPOINTMENT:
For the purposes of recruitment, appointment, discharge for want of vacancy,
seniority, promotion, transfer and appointment as full member, there shall be
seven separate units as detailed below:
: Comprising the districts of Srikakulam, Vizianagaram and Visakhapatnam.
: Comprising the districts of East Godavari, West Godavari and Krishna.
: Comprising the districts of Guntur, Prakasam
: Comprising the districts of Kurnool, Cuddapah,
Anantapur and Chittor.
: Comprising the districts of Adilabad, Karimnagar, Warangal and Khammam.
: Comprising the districts of Ragareddy, Nalgonda, Mahaboobnagar, Medak and Nizamabad.
: Twin cities of Hyderabad and Secundrabad.
ORDER : (so far as relevant) reads as follows:
following Order of President of India, G.S.R. 524 (E), dated the 18th October, 1975 is republished:- The Andhra Pradesh
public employment (organisation of local cadres and regulation of direct
recruitment) order, 1975. Order G.S.R. 524(e): - In exercise of the powers
conferred by clauses (1) and (2) of articles 371-D of the Constitution, the
President hereby makes, with respect to the State of Andhra Pradesh, the
following Order, namely:-
Short title, extent and commencement (i) This Order may be called the Andhra
Pradesh Public Employment (Organisation of Local Cadres and Regulation of
Direct Recruitment) Order, 1975.
extends to the whole of the State of Andhra Pradesh.
shall come into force at once.
Interpretation (1) In this Order, unless the context otherwise requires (a).
local area, in relation to any local cadre, means the local area specified in
paragraph 6 for direct recruitment to posts in such local cadre, and includes,
in respect of posts belonging to the category of Civil Assistant Surgeons, the
local areas specified in sub-paragraph (5),of paragraph 8 of this Order;
authority; does not include any local authority which is not subject to the
control of the State Government;
cadre means any local cadre of posts under the State Government organised in
pursuance of paragraph 3, or constituted otherwise, for any part of the State;
candidate in relation to any local area, means a candidate who qualifies under
paragraph 7 as a local candidate in relation to such local area;
Schedule means a Schedule appended to this Order;
Government means the Government of Andhra Pradesh.
means a zone specified in the Second Schedule comprising the territories
The General Clauses Act, 1897 (10 of 1897) applies for the interpretation of
this Order as it applies for the interpretation of a Central Act.
of local cadre (1) The State Government shall, within a period of twelve months
from the commencement of this Order, organize 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,
The posts belonging to the category of lower division clerk, and to 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 a 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 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
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.
The posts belonging to each specified gazetted category in each department in
each zone shall be organised into a separate cadre.
Notwithstanding anything contained in sub-paragraphs (3) and (4), the State
Government may, where it considers it expedient so to do and with approval of
the Central Government, organize the posts belonging to any of the categories
referred to therein, in any department, or any establishment thereof, in two or
more continuous zones into a single cadre.
organizing 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 organizing or continuing more than one cadre
in respect of such category in such department for such part of the State.
Where the Central Government is satisfied that it is not practicable or
expedient to organize 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.
Local cadres and transfer of persons:
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 post.
Nothing in this Order shall prevent the State Government from making provisions
transfer of a person from any local cadre to any Office or Establishment to
which this Order does not apply, or vice- versa;
the transfer of a person from a local cadre comprising posts in any Office or
Establishment exercising territorial jurisdiction over a part of the State to
any other local cadre comprising posts in such part, or vice-versa; and the
transfer of a person from one local cadre to another local cadre where no
qualified or suitable person is available in the latter cadre or where such
transfer is otherwise considered necessary in the public interest.
Each district shall be regarded as a local area (i) for direct recruitment to
posts in any local cadre under the State Government comprising all or any of
the posts in any department in that district belonging to the category of a
lower division clerk or to any other category equivalent to or lower than that
of a lower division clerk;
direct recruitment to posts in any cadre under any local authority within that
district, carrying a scale of pay, the minimum of which does not exceed the
minimum of the scale of pay of a lower division clerk or a fixed pay not
exceeding that amount.
Each Zone shall be regarded as a local area;
for direct recruitment to posts in any local cadre under the State Government
comprising all or any of the posts in any department in that zone belonging to
any non-gazetted category other than those referred to in such paragraph (1);
direct recruitment to posts in any local cadre comprising all or any of the
posts in any department in that zone belonging to the categories of Tahsildars
and Junior Engineers;
for direct recruitment to posts in any cadre under any local authority within
that zone, carrying a scale of pay, the minimum of which exceeds the minimum of
the scale of pay of a lower division clerk but does not exceed Rs.480/- per mensem;
or a fixed pay which exceeds the minimum of the scale of pay of a lower
division clerk but does not exceed Rs.480/- per mensem;
object of enacting Article 371-D appears to be two-fold:- (1) To promote equal
development of the backward areas of the State of Andhra Pradesh, so far as to
secure balanced development of the State as a whole.
provide equitable opportunities to different areas of the State in the matter
of education, employment and career prospects in public service.
was observed to be so in Chief Justice of Andhra Pradesh vs. L.V.A. Dikshitulu
(AIR 1979 SC 193).
is to be noted that para 5(1) of the Presidential Order is in terms of para
3(3) thereof. Para 3(3) postulates that each department in each zone shall be organised
into a separate cadre. Para 5(1) speaks of 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 the
category of posts and each part of the State for which local cadre has been organised
in respect of any category of posts is required to have a separate unit for the
aforesaid purposes. Para 5(2) is in the nature of an enabling provision which
authorizes the State Government to make provisions for transfer in certain
specified circumstances. The present dispute relates to para 5(2) ©. It speaks
of a transfer. Attempt of the appellants is to give enlarged meaning to the
expression to include promotional aspects. It has been contended in that
context that though para 5(1) treats promotion and transfer separately, yet
that distinction would not be applicable to cases covered by para 5(2). The
contention is clearly untenable.
Transfer in relation to service reduced to simple terms means a change of place
of employment within an organization, as stated in New Oxford English Dictionary
, 1993 Edition, Vol.2, p.3367. It is an incidence of public service and
generally does not require the consent of the employee. In most service rules,
there are express provisions relating to transfer. For example, Fundamental
Rule 15 provides:
The President may transfer a Government servant from one post to another;
provided that except (1) on account of inefficiency or misbehaviour, or (2) on
his written request, a Government servant shall not be transferred
substantively to, or, except in a case covered by Rule 49, appointed to
officiate in a post carrying less pay than the pay of the permanent post on
which he holds a lien, or would hold a lien had his lien not been suspended
under Rule 14.
Nothing contained in clause (a) of this Rule or in clause (13) of Rule 9 shall
operate to prevent the re- transfer of a Government servant to the post on
which he would hold a lien, had it not been suspended in accordance with the
provisions of clause (a) of Rule 14.
rules sometimes define transfer. For example, supplementary Rule 2(18) of the
Fundamental Rules governing Central Government servants defines transfer in the
2(18): Transfer means the movement of a Government servant from one headquarter
station in which he is employed to another such station, either (a) to take up
the duties of a new post, or (b) in consequence of change of his headquarter.
definitions may differ and in many cases transfer is conceived in wider terms
as a movement to any other place or branch of the organization, transfer
essentially is to a similar post in the same cadre as observed by this Court in
B. Varadha Rao vs. State of Karnataka (AIR 1987 SC 287). It is now well settled
that a government servant is liable to be transferred to a similar post in the
same cadre which is a normal feature and incidence of government service and no
government servant can claim to remain in a particular place or in a particular
post unless, of course, his appointment itself is to a specified
non-transferable post. No transfer is made to a post higher than what a
Government servant is holding. In other words, it is generally a lateral and
not vertical movement within the employers organization.
Strong reliance has been placed in para 15 of Sadanandams case (supra) for
contending that transfer also includes promotion. The para reads as follows:
first place, we must point out that the Tribunal has failed to construe para
5(2) of the Presidential Order in its proper perspective and give full effect
to the powers conferred thereunder on the State Government to make provisions
contrary to the scheme of local cadres prescribed under para 5(1). The words of
sub-para (2) of para 5 viz. nothing in this order shall prevent the State
Government from making provision for sets out the overriding powers given to
the State Government under the sub-para. Such overriding powers have been given
to the State Government in express terms in recognition of the principle that
public interest and administrative exigencies have precedence over the promotional
interests of the members belonging to local cadres and zones. Since para 5(2)
also forms a part of the Presidential Order, it forms part of the scheme
envisaged for creating local cadres and zones. The Tribunal was, therefore, in
error in taking the view that if the State Government was to exercise its
powers under para 5(2) and make provision for promotion of U.D. Assistants in
the Directorate and Assistant Section Officers in the Secretariat to be
transferred to posts in zones I to IV, it will be the very negation of the
creation of cadres and zones under para 5(1) and it will be destructive of the
scheme underlying the Presidential Order. In fact the Tribunal has realized the
operative force of para 5(2) to some extent but it has failed to give full
effect to its realization of the scope of Section 5(2). In para 12 of its
judgment in R.P.No. 1595 of 1983 the Tribunal has stated that since the amended
rule refers to para 5(2) of the Presidential Order it will no longer be open to
the petitioners to attack the amendment as was done in respect of the earlier
amendment in the previous R.P.
Tribunal has thus noticed that the amended rule has been brought about by the
government in exercise of its powers under para 5(2) but it has failed to draw
the logical inference following therefrom.
to be noted that in the second case relied upon by the learned counsel for the
appellants reference was made to Sadanandam case (supra) and there was no
independent analysis of the legal provisions.
find that para 5(2) of the Presidential Order speaks of transfer and not of
promotion. It would be hazardous to accept the contention of the appellants
that promotion is included in the expression transfer and no assistance can be
availed from the distinction made in para 5(1) of the Order.
provisions or word in a statute has to be read in isolation. In fact, the
statute has to be read as a whole. A statute is an edict of the legislature. It
cannot be said that without any purpose the distinction was made in para 5(1)
between transfer and promotion and such distinction was not intended to be
operative in para 5(2). The intention of the legislature is primarily to be
gathered from the language used, which means that attention should be paid as
to what has been said as also to what has not been said. See Mohd. Ali Khan vs.
Commissioner of Wealth Tax, New Delhi (AIR 1997 SC 1165) and Institute of
Chartered Accountants of India vs. M/s. Price Water House (AIR 1998 SC 74). As
a consequence a construction which requires for its support addition or
substitution of words or which resorts for rejection of words as meaningless
has to be avoided. As stated by the Privy Council in Robert Wigram Crawford vs.
Richard Spooner (1846 (6) Moore PC 1) We cannot aid the Legislatures defective
phrasing of an Act, we cannot add or mend and, by construction make
deficiencies which are left there. The aforesaid decision was referred to by
this Court in State of Gujarat and Ors. vs. Dilipbhai Nathjibhai
Patel & Anr. (JT 1998 (2) SC 253). It is contrary to all rules of
construction to read words into an Act unless it is absolutely necessary to do
so. (See Stock vs. Frank Jones (Tiptan) Ltd. (1978  All.ER 948 (HL).
Similarly, it is wrong and dangerous to proceed by Everett (1969  All.ER
257). In other words, there should be no attempt to substitute or paraphrase of
general application. Attention should be confined to what is necessary for
deciding a particular case. Much trouble is made by substituting other phrases
assumed to be equivalent, which then are reasoned from as if they were in the
Act. In Union of India vs. Deoki Nandan Aggarwal (AIR 1992 SC 96), it was
observed that the Court cannot refrain the legislature for the very good reason
that it has no power to legislate. It is incumbent on the Court to avoid the
construction if reasonably permissible on the language which would render a
part of the statute devoid of any meaning or application. In the interpretation
of statutes, the Courts always presume that the Legislature inserted every part
thereof for a purpose and the legislative intention is that every part of the
statute should have an effect.
therefore, find no reasons to accept this stand of the appellant that the
expression transfer takes within its scope a promotion.
may note here that learned counsel for the State of Andhra Pradesh submitted
with reference to the counter affidavit filed in this Court that the impugned
Rules were not intended to carve out a class of employees in terms of para 5(2)for
public interest. That being the position, we need not go into the question
whether a consideration on a case to case basis is called for in terms of para
14. In Sadanandams case (supra), 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 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.
if it 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 Sadanandams case (supra) must be held to have not been
correctly decided. As a consequence, so would be the case with Satyanarayana Raos
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
appeals are without any merit and are accordingly dismissed.