GOVERNMENT OF ANDHRA PRADESH AND ANR. v. A. SURYANARAYANARAO AND ORS. ETC

Citation: [1991] SUPP. 1 S.C.R. 27

Court: Supreme Court of India

Bench: S. RATNAVEL PANDIAN, K. JAYACHANDRA REDDY

Case summary

Article 3710 of the Constitution of India is peculiar to the State of Andhra Pradesh due to historical background.

Judgment text

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 3710 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 safeguards in the matter of employment opportunities for residents of Telangana region. This Article empowers President to provide by order for equitable opportunities and facilities 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 Engineering 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 Tribunal directing the Government to redetermine their positions in the Seniority list instead of giving a definite declaration as prayed for by them. Shri K.

Madhava Reddy, learned counsel appearing for the State of Andhrn 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 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 treat. ed 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 promotion to the higher post of Executive · Engineer which is not a zonal post, a Statewide seniority list of Assistant Engineers 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 3710(2) refers only to direct recruitment and the Presidential Order made under the said Article cannot make a departure and cannot be made applicable for promotions also. On the other hand, it is the Statewide list that should be the basis for promotions. In support of his submissions he invited our attention to the provisions of Article 3710 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, submitted that even if either of the lists is to form the >-basis for promotions his clients are not affected and their promotions 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 eontentions it becomes necessary to refer to some of the relevant provisions of Article 3710 as well as the Presidential Order and some of the notifications made thereunder and the relevant provisions of the A. P. Panchayati Raj Engineering Service Rules. ·On November 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 9f that area.

In the year 1957 the Public Employnient (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 dissatisfaction sometimes in the Telangana area and sometimes in the other areas of the State and even led to violent agitations. A consensus was arrived A. P. oovr. v. SURYANARAyANARAO [REDDY; JI 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 J. 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·3710 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 r;on- .

,, stituted 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. " . , It may be noted that clause (3) provides for constitution of an Administrative Tribunal. Now we may note some of the relevant provisions in the Presidential Order. In para 2 definitions of the various expressions ). _ used in the Order are given. They read thus: "Para 2.

Interpretations: - (1) In this Order, unless the context otherwise requires:- (a) xx xx xx (b) 'direct recruitment' includes recruitment made on a temporary basis but does not include recruitment made in pursuance f)f any scheme approved by the State Government providing for the regularisation of the services of persons holding posts on a temporary basis before the co~encement of this order; (c) 'local area' in relation to any local cadre, means'the local area specified in paragraph 6 for direct recruitu1ent to posts in such local cadre, and includes, in respect of posts belonging to the category of Civil Assistant 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 paragragph 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 in relation to such local area; xx. (g), xx xx . ~ (h) 'Schedule' means a Schedule appended to this Order; (i) xx xx xx G) '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 (I) xx xx xx . L " . A. P. GOVfv. SURYANARAYANA RAO (REDDY,J. ) 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 expirations of the said period, the president may by order, require the State Government, whenever he considers it expedient so to do, to organise any classes'of posts in the civil services of, and classes of civil posts, under the State into different local cadres for different 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 inco a separate cadre. Explanation: - For the purposes of this sub-paragraph, subparagraph (1) of paragraph 6, and sub-paragraph (1) of paragraph 8, a category shall be deemed to be equivalent to or lower than that of a Junior Assistant if the minimum of the scale of pay, of a post belonging 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 e. ach 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 Government 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 referred to therein, in any department, or any establishment thereof, in two or more continuous 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 all0tting persons to local cadres due rei;w:fa shall be had to all or any of the following, namely: - (a) the administrative needs of the posts in the local cadres; (b) the need for the composition of balanced local cadres with reference to age and seniority, groups; (c) the length of service of the persons concerned in the part of the State for which the local cadre is organised; (d) knowledge of the persons concerned of the languages ~ I spoken and the law in force in the part of the State for which the local cadre is organised; (e) preference of the persons concerned for allotment to any local cadre, where feasible. 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 organised under the provisions of this Order made in pursuance of the Proviso to AP. GOVf. v. SURYANARAYANARAO (REDDY, J.

) 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 paragraph, 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. 34, 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 Guntur, Prakasam and Nellore districts. .. Zone VI Chittoor, Cuddapah, Anantapur and Kurnool districts. ' Zone V Adilabad, Karimnagar, Warangal and Khainmam districts. Zone VI Hyderabad, Nizamabad, Mahabubnagar, Medak and Nalgonda districts. THE THIRD SCHEDULE [See paragraphs 2(1) G) and (4) Specified Gazetted Categories Sr.

No. Category Name of the Department (1) (2) (3) xx xx xx 30. Assistant Engi. neers Panchyati Raj Engineering Department 30A. Junior Engineers do -... ,, xx xx xx 40. Junior Engineers Public Works Department (Irrigation) 41. Assistant Engineers Public Works Dep~ent (Irrigation) 41. 'Junior Engineers Public Works Department (R&B) 43. Assistant Engineers - do-" (emphasis suppli~d ) 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 prospc. cts 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, comprises of Chittoor, Cuddapah, Anantpur and Kurnool Districts. As noted above Schedule III enumerates various specified gazetted categories and Junior Engineers and Assistant Engineers in the Panchayati Raj Engineering Department as well as in the Public Works Department (Irrigation) 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 Stale 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 provisional 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 t~e year 1963. These Rules provide for the appointments 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, seniority, transfer, promotion and appointment, as full member in respect of category 4, Deputy Executive Engineers, each ... AP. GOVI'v. SURYANARAYANARAO [REDDY,J. ] 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 -"I· - 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 Recruitment) Order, 1975 shall be filled by drafting persons from the units over which the respective 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 Presidential Order would show that the said Rule has retrospective effect, therefore the Government is at liberty to revise the promotions made otherwise then -tm the basis of the zonal seniority list. But Shri Sitaramiah, learned counsel, s~bmitted that the said Rule cannot be given retrospective 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 18. 10. 75 namely before the Presidential Order was made. Questioning some of the promotions made by the Government, repre- ..... ,,' sentation petitions were filed before the A. P. Administrative Tribunal.

In such matters the Tribunal observed that as a precautionary measure the juniors 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 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 esse~tial 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 3710 is to promote -~. speedy development of the backward areas and to provide equal opportunities to different areas of the State in the matter of employment etc. This Article is a special provision which makes departure from the general scheme of the Constitution. In High Court ofAndhra 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 3710 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 different 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 3710 empowers the President to provide by order, "for equitable oppprtunities and facilities for the people belonging to different parts of the State in the matter of public employment and in the matter of education. " Clause (2) of the Article is complementary 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 residence 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. "