advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, February 19, 2015

In any case, the State Government cannot pass any order amending a procedural law regarding reservation in the matter of selection to posts, with retrospective effect, once the procedure of selection starts. 21. For the reasons aforesaid, we hold that the G.O.Ms.No.124 dated 7th March, 2002 is prospective and is not applicable to the process of selection started pursuant to Advertisement No.10 of 1999 including the 973 executive posts which were ordered to be filled up by the High Court pursuant to the advertisement. The Tribunal erred in directing the APPSC to re-caste the merit list pursuant to G.O.Ms.No.124 dated 7th March, 2002. The High Court by the impugned judgment dated 27th December, 2004 rightly held that the order passed by the Court will not affect the appointments already made to the executive post between 2001-2002 but erred in holding that the selection is to be made in accordance with G.O.Ms.No.124 dated 7th March, 2002 22. For the reasons aforesaid, we set aside the orders passed by the Andhra Pradesh Administrative Tribunal and the impugned common judgment dated 27th December, 2004 and the impugned common order dated 28th December, 2004 passed by the Division Bench of the High Court of Judicature, Andhra Pradesh at Hyderabad in Writ Petition Nos. 20106 of 2004, 21558 of 2004, etc. In view of the foregoing discussions, we direct the respondents to fill up the rest of the posts including the posts of Municipal Commissioners Grade-III, Asstt. Commercial Tax Officers, Asstt. Labour Officers in executive cadre and Asstt. Section Officers in non executive cadre, which are vacant, as per President Order, 1975 and the Government orders in consonance with the Presidential Order which were prevailing in the year 1999 when the Advertisement was issued. The inter se seniority between the persons appointed in the 1st round and the persons appointed afterwards in the same cadre, if any, shall be decided by the appropriate authority in accordance with the rules, depending on the merit ranking obtained by them. 23. We direct the authority to complete the process of selection expeditiously preferably within three months. The appeals are allowed with aforesaid observations and directions.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.5099 OF 2006


M. SURENDER REDDY                                     ... APPELLANT

                                   VERSUS

GOVT. OF ANDHRA PRADESH AND ORS.                ... RESPONDENTS

With
C.A. No.5100 of 2006 and
C.A. No.5101 of 2006

                               J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.


      These appeals have been preferred by  the  appellants  against  common
judgment dated 27th December, 2004 passed by   the  Division  Bench  of  the
High Court of Judicature, Andhra Pradesh at Hyderabad in Writ Petition  Nos.
20106, 20350, 20539 and 21554 of 2004 and common order dated 28th  December,
2004 passed by the same High Court in Writ Petition Nos.20215, 20305,  21558
and 23173 of  2004.   By  the  impugned  common  judgment,  the  High  Court
dismissed the writ petitions, upheld  the  finding  of  the  Andhra  Pradesh
Administrative Tribunal (hereinafter referred  to  as  the  "Tribunal")  and
held as follows:

"26.  In view of our foregoing discussions,

    we record the following conclusions:

The finding of the  Tribunal  that  the  selection  process  has  to  be  in
accordance with the G.O.Ms. No.124, dated 8.8.2002  cannot  be  said  to  be
erroneous or contrary to law.

But, however, the direction that the entire select list has to  be  reviewed
clubbing the appointments under 1st round selection is not  sustainable  and
accordingly the procedure as contemplated under G.O.Ms.  No.124  has  to  be
followed only in  respect  of  the  candidates  excluding  the  appointments
already made in 2001 and 2002 namely Asstt. Municipal  Commissioners  Grade-
III, Asstt. Commercial Tax  Officers,  Asstt.  Labour  Officers  and  Asstt.
Section Officers  in  non-executive  cadre  in  view  of  the  peculiar  and
circumstances of this case.

The inter se seniority between the 1st round appointees and  later  inducted
persons under second round selection in the  same  cadre  if  any  shall  be
decided by the appropriate authority in accordance with rules, depending  on
the merit ranking obtained by them.

The Reservation to PHC category  wherever  it  is  not  provided  under  the
Special Rules cannot be claimed and hence the findings of  the  Tribunal  do
not call for any interference.

27.    We  do  hope  that  the  process  of  selection  would  be  completed
expeditiously without further hurdles. Subject  to  the  above  conclusions,
the Writ Petitions stand dismissed."



By the impugned common order, the High  Court  disposed  of  the  said  writ
petitions in terms of the common judgment dated 27th December, 2004 in  Writ
Petition No.20106 of 2004.

2.    The brief facts of the case are as follows:

      The President of India in exercise of powers conferred by  Clause  (1)
and (2) of Article 371-D of Constitution of India made  the  Andhra  Pradesh
Public Employment (Organization of Local Cadres  and  Regulation  of  Direct
Recruitment) Order, 1975 dated 20th October, 1975 (hereinafter  referred  to
as "Presidential Order"). Sub-Paragraph(1) of Paragraph 3 of the said  order
gives power to the State Government to 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  within  27  months  from  the
commencement of the said order. Paragraph 8 relates to  reservation  in  the
matter of direct recruitment. Relevant portion of which reads as follows:

      "8. Reservation in the matter of Direct Recruitment:- (1) 80%  of  the
posts to be filled by direct recruitment any time-

(a)  in  any  local  cadre  under  the  State  Government  comprising  posts
belonging to the category of lower division clerk or a  Category  equivalent
to or lower than that lower division clerk; and

(b) in any cadre under a local authority comprising post  carrying  a  scale
of pay the minimum of which, or a  fixed  pay  which  does  not  exceed  the
minimum of the scale of pay or a lower division clerk, shall be reserved  in
favour of local candidates in relation to the local area in respect of  such
cadre.

(2) 70% of the posts to be filled by direct recruitment at any time-

(a)  in  any  local  cadre  under  the  State  Government  comprising  posts
belonging to non-gazetted categories other than those referred  to  in  item
(a) of sub-paragraph (1); and

(b) in any cadre under a local authority comprising posts carrying  a  scale
of pay, the minimum of which, 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 mensum on any amount corresponding to it as may  be  specified  in  this
regard in the successive revisions  of  pay  scales  granted  by  the  State
Government  from  time  to  time  shall  be  reserved  in  favour  of  local
candidates in relation to the local area in respect of such cadre."


3.    In exercise of  the  powers  under  sub-para(1)  Paragraph  3  of  the
'Presidential Order,  1975'  the  Andhra  Pradesh  State  Government  issued
G.O.P. No.729 dated 1st Novemer,1975, whereby 70% of  non-gazetted  category
posts other than Lower Division Clerk or equivalent posts were  reserved  in
favour of local candidates. By G.O.P. No.763 dated 15th November,  1975  the
State Government prescribed certain procedures to be followed in  conducting
recruitment to the posts. Annexure III to the said  G.O.P.  deals  with  the
procedure to be followed for selection of candidates for recruitment to  the
categories of posts for which multiple cadre recruitment  is  made.  As  per
paragraph 5 of the annexure a combined merit  list  a  local  and  non-local
candidates  shall be drawn up to fill up the vacancies.

4.    Later, the Andhra  Pradesh  State  Government  issued  G.O.Ms.  No.124
dated 7th March, 2002, whereby G.O.P. No.763 dated 15th November,  1975  was
amended by bifurcating combined merit list into two parts i.e. one  reserved
for local candidates and another for both local and non-local candidates.

5.    On 28th December, 1999, the Andhra Pradesh Public  Service  Commission
(hereinafter referred to as the "APPSC") issued Advertisement NO.10 of  1999
to fill up certain Executive  and   Non-Executive  Posts  of  27  categories
under Group-II services of State Government. As per the  said  Advertisement
selection was to be made on the basis of  marks  obtained  in  written  test
plus oral test for executive posts and only on the basis of  marks  obtained
in the interview, the written test for non-executive posts. Later the  State
Government  withdrew  that  part  of  the  advertisement  which  called  for
applications  to  141  vacant   posts   of   Assistant   Section   Officers.
Accordingly,  more  than  3  lacs  candidates  appeared   in   the   written
examination and among  them  269  persons  were  called  for  interview  for
appointment to the executive posts on the basis of  marks  obtained  in  the
written  examination.  After  concluding  interviews,  104  candidates  were
selected for executive posts in December 2000. Subsequently, in view  of  an
order passed by the Tribunal in O.a.No.7443 of 2000, filed against the  non-
exclusion  of  141  posts  of  Assistant  Section  Officers  113  candidates
including the appellants  were  recommended  for  non-executive  posts  i.e.
Asstt. Sections Officers in  February,  2002  based  on  marks  obtained  in
written test.

Subsequently, as per the directions of the High Court, 973  Executive  posts
were included in Advertisement No.10 of 1999 and more than  2000  candidates
along with the appellants were called for interview  on  the  basis  of  the
marks obtained in the written examination. Thereafter,  the  APPSC  selected
973 candidates for executive posts on the basis of written  plus  oral  test
and prepared common merit list by including 104 candidates who were  already
appointed against executive posts.

6.     Some  of  the  candidates  filed  applications  before  Tribunal   to
implement G.O.Ms. No.124 dated 7th March, 2002  which  was  allowed  by  the
Tribunal with a direction to  the  APPSC  to  re-caste  the  merit  list  by
implementing the G.O.Ms. No.124. Being  aggrieved  by  the  said  direction,
when the appellants filed Writ Petitions, the  High  Court  while  dismissed
the same directing to exclude the present appellants and other  A.S.Os  from
consideration to the executive posts.

As  the  above  said  direction  of  the  High  Court  created  an   anomaly
restricting the meritorious candidates, already  appointed  Asstt.  Sections
Officers who were appointed to the to lower  non-executive  posts  and  less
meritorious candidates were to get higher posts  in  executive  cadres,  the
appellants have challenged the same.

7.    Learned counsel for  the  appellants  submitted  that  G.O.Ms.  No.124
dated 7th March, 2002 cannot be applied  retrospectively  to  the  selection
already in process or selection already made, particularly  when  the  State
Government's order is a part of substantive law and not procedural  law.  It
is further contended that G.O.Ms.124 dated 7th March, 2002 is null and  void
having issued after lapse of period of limitation prescribed in  sub-para(1)
of Paragraph 3 of the Presidential Order, 1975. Further,  according  to  the
counsel for the appellants, G.O.Ms.124 dated 7th March, 2002 is ultra  vires
of Presidential Order, 1975 and G.O.P. No.729 dated 1st November,  1975  and
G.O.P. No.763 dated 15th November, 1975 issued  in  pursuance  of  Paragraph
3(1) of the Presidential Order, 1975.

8.    We have heard learned counsel for the  parties,  perused  the  records
and relevant notifications relating to  reservation  of  posts  issued  from
time to time.

The questions that arise for determination  in  this  case  are:  (a)whether
G.O.Ms.124 dated 7th March, 2002 is retrospective  in  nature  in  order  to
make it applicable to the posts for  which  selection  process  has  already
started pursuant to 1999 advertisement, and  (b)  If  the  said  G.O.Ms.  is
retrospective, whether it is required  to  review  the  entire  select  list
disturbing the appointments already made during the period between the  2001
and 7th March, 2002.

9.    The Presidential  Order,  1975  by  virtue  of  sub-paragraph  (1)  of
Paragraph 3 empowers the State Government to organize classes  of  posts  in
civil services under the State into  different  local  cadres  in  different
parts of State within 27 months from the commencement  of  the  said  order.
Paragraph 3 of the order empowers the State to organize Local Cadres,  which
is as follows:

"3. Organization of local cadres :- (1) The State Government shall within  a
period of * twenty-seven months [Vide G.O. Ms. No. 728, G.A.  (SPF.A)  Dept,
dt. 27-10-1977]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, hereinafter provided.

Provided that, notwithstanding  the  expiration  of  the  said  period,  the
President may by order, require the State Government, whenever he  considers
it expedient so to do, to  organize  any  classes  of  posts  in  the  civil
services of and classes of civil posts under the State into different  local
cadres or different parts of the State.(Vide G.O. Ms. No. 34,  G.A.  (SPF.A)
Dept, date 24-1-81)

(2) The posts belonging to the category of lower division clerk and each  of
the other categories equivalent to, or lower than that of a  lower  division
clerk, in each department in each district shall be organized into  separate
cadre.

Explanation:- For the purposes of this  sub-paragraph,  sub-paragraph(1)  of
paragraph 6, and sub-paragraph (1)  of  paragraph  8  a  category  shall  be
deemed to be equivalent to or lower than that of a lower division  clerk  if
the minimum of the scale of pay of a post  belonging  to  that  category  or
where the post carries a fixed pay, such fixed pay  is  equal  to  or  lower
than the minimum of the scale of pay of a lower division clerk.

(3) The posts belonging to each non  gazetted  category,  other  than  those
referred to in sub-paragraph (2), in each department in each zone  shall  be
organized into a separate cadre.

(4) The  posts  belonging  to  each  specified  gazetted  category  in  each
department in each zone shall be organized into a separate cadre.

(5) Notwithstanding anything contained in sub-paragraph  (3)  and  (4),  the
State Government may where it considers it expedient so to do and  with  the
approval of the Central Government, organized the posts belonging to any  of
the categories referred to therein, in any department, or any  establishment
thereof, in two or more contiguous zones into a single cadre.

(6) Notwithstanding anything contained in sub Paragraphs (2), (3),  (4)  and
(5), the Central Government; may notify the departments in which
and the categories of posts for which a separate cadre has to  be  organized
for the City of Hyderabad and on such notification, the posts  belonging  to
each such category in each such department in  the  said  City  (other  than
those concerned with the administration of areas falling outside,  the  said
City) shall be organize into a separate cadre and the posts so organized  in
pursuance of this paragraph or Constituted otherwise  and  comprising  posts
belonging to the category in that department.

(7) In organising a separate cadre in respect of any category  of  posts  in
any department for any part of the State, nothing in  this  Order  shall  be
deemed to prevent the State Government from organising  or  continuing  more
than one cadre in respect of such category is such department for such  part
of the State.

(8) 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."

      Each district is regarded as a 'Local area' as per paragraph 6,  which
is as follows:

"6. Local areas:- (1) 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.

(ii) for direct recruitment to posts in any cadre under any local  authority
within under 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.

(2) Each Zone shall be regarded as a local area-

(1) 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 sub paragraph (1);

(ii) for direct recruitment to posts in any local cadre  comprising  all  or
any of the post in any department in that zone belonging to  the  categories
of Tehsildars,  Asst. Executive Engineers, Assistant Agricultural  Officers,
Inspectors of Police  and  Motor  Vehicle  Inspectors  (Vide  G.O.  Ms.  No.
498,dt. 16-7-1977 G.O.Ms. No. 34, dt. 24-1-1981  and  G.  O.  Ms.  No.  635,
G.A.(SPF. A) Dept. dated 30-11-1993)

(iii) 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 mensum 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 mensum or any amount corresponding to it as may  be  specified  in  this
regard in the successive revisions  or  pay  scales  granted  by  the  State
Government from time of time. (G.O.Ms. 635, G.A. (SPF.A) Dept. dated  30-11-
93.17)

Provided that where a single cadre has been organized for two or more  zones
under sub-paragraph (5) of paragraph 3 of posts  belonging  to  any  of  the
categories referred to in clause (i) or  clause  (ii)  each  of  such  zones
shall be regarded as separate local area in respect of such cadre.

(3) Notwithstanding anything contained in sub-paragraphs (1) and (2),-

(i) the City of Hyderabad 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 the said City in the  departments  and
belonging to the categories notified under Sub-paragraph (6) of paragraph  3
and the said City shall be excluded from the local  area  relatable  to  any
other local cadre comprising posts in the departments and belonging  to  the
categories so notified; and

(ii) the City of Hyderabad shall be regarded as  a  local  area  for  direct
recruitment to posts in any cadre under a local authority  within  the  said
City comprising posts carrying a scale of pay the minimum of which does  not
exceed Rs. 480/- per mensum or any amount corresponding  to  it  as  may  be
specified in this  regarded  in  the  successive  revisions  of  pay  scales
granted by the State Government from time  to  time,  or  a  fixed  pay  not
exceeding that amount, and the said City shall be excluded  from  the  local
area relatable to any cadre under any local authority not  within  the  said
City. (G.O. Ms.No. 635, G. A. (SPF. A) Dept. dated 30-11-93)

(4) Notwithstanding anything contained sub-paragraphs (1), (2) and (3).
(1) the districts of Medak, Ranga Reddy and Hyderabad shall be  regarded  as
a local area for  direct  recruitment  to  posts  in  any  cadre  under  the
Hyderabad Urban Development Authority comprising posts, carrying a scale  of
pay, the minimum of which does not exceed the minimum of
the scale of pay of lower division clerk or a fixed pay not  exceeding  that
amount.

(ii) Zone VI shall be regarded as a local area  for  direct  recruitment  to
posts in any cadre under the Hyderabad Urban Development Authority
comprising posts, carrying a scale of pay, the minimum of which exceeds  the
scale of pay of a lower division clerk but does not  exceed  Rs.  480/-  per
mensum, or a fixed pay which exceeds the minimum of the scale of the pay  of
a lower division clerk but does not exceed Rs. 480/-  per  mensum  J-698/318
or any amount corresponding to it as may be specified in this regard in  the
successive revisions of pay scales granted  by  the  State  Government  from
time to time.(Vide G.O.Ms. No. 498, G. A. (SPF. A)  Dept.  dt.  16-7-77  and
G.O. Ms.No. 34, G. A. (SPF. A.) Dept, dt. 24-1-1981.)"

      "Local candidates" for direct recruitment to any post in  relation  to
the local area is defined in paragraph 7 as follows:

"7. Local Candidate:- (1) A candidate for direct  recruitment  to  any  post
shall be regarded as a local candidate in relation to a local area.-

(a) in cases where a minimum educational qualification has  been  prescribed
for recruitment to the posts-

(i)  If  he  has  studied  in  an  educational  institution  or  educational
institutions in such  local  area  for  a  period  of  not  less  than  four
consecutive academic years  ending  with  the  academic  year  in  which  he
appeared or, as the case may be, first appeared for the relevant  qualifying
examination; or

(ii) where during the whole or any part of  the  four  consecutive  academic
years ending with the academic year in which he appeared or as the case  may
be, first appeared for  the  relevant  qualifying  examination  he  has  not
studied in any educational institution, if he  has  resided  in  that  local
area for a period of not less than  four  years  immediately  preceding  the
date of commencement of the qualifying examination in which he  appeared  or
as the case may be, first appeared.

(b) In cases where no minimum educational qualification has been  prescribed
for recruitment to the post, if he has resided in  that  local  area  for  a
period of not less than four years immediately preceding the date  on  which
the post is notified for recruitment.

Explanations:- For the purpose of this paragraph.-

(i)  'educational  institution'  means  a  University  or  any   educational
institution recognised by  the  State  Government,  a  University  or  other
competent authority;

(ii) 'relevant qualifying examination' in relation to a post means;

(A)  the  examination,  a  pass  in  which  is   the   minimum   educational
qualification prescribed for the post;

(B) the Matriculation examination or an examination declared  by  the  State
Government to be equivalent to the Matriculation examination;
which is lower ; and

(iii) in reckoning the consecutive academic years during which  a  candidate
has studied, any period of interruption  of  his  study  be  reason  of  his
failure to pass any examination shall be disregarded.

(iv) the question, whether any candidate for direct recruitment to any  post
has resided in any local area shall be  determined  with  reference  to  the
places where the candidate actually resided and not with  reference  to  the
residence of his parents or other  guardian  (Vide  G.O.Ms.  No.  168,  G.A.
(SPF.A) Dept. dt.10-3-77).

(2) A candidate for direct recruitment to any  post who is not  regarded  as
a local candidate under sub-paragraph (1) in  relation  to  any  local  area
shall.-
(a) in cases where a minimum educational qualification has  been  prescribed
for recruitment to the post.

(i) If he has studies in  educational  institutions  in  that  State  for  a
period of not  less  than  seven  consecutive  academic  years  ending  with
academic year in which he appeared or as the case  may  be,  first  appeared
for the relevant qualifying examination be regarded as a local candidate  in
relation to

(1) Such local area where he has studied for the maximum period out  of  the
said period of seven years; or

(2) where the period of his study in two or  more  local  areas  are  equal,
such local areas where he has studied last in such equal periods;

(ii) If during the whole or any  part  of  the  seven  consecutive  academic
years ending with the academic years in which he appeared  or  as  the  case
may be first appeared for the relevant qualifying examination,  he  has  not
studied in the educational institutions in any local areas, but has  resided
in the State during the  whole  of  the  said  period  of  seven  years,  be
regarded as a local candidate in relation to

 (1) such local area where he has resided for a maximum period  out  of  the
said period of seven years : or (2) where the periods of  his  residence  in
two or more local areas are equal, such local  area  where  he  has  resided
last in such equal periods ;

(b) in cases where no minimum educational qualification has been  prescribed
for recruitment to the post, if he has resided in the State  for  period  of
not less than seven years immediately preceding the date on which  the  post
is notified for recruitment, be regarded as a local  candidate  in  relation
to

(i) such local area where he has resided for the maximum period out  of  the
said period of seven years ; or (ii) where the periods of his  residence  is
two or more local areas are equal such local area where he has resided  last
in such equal periods.(G.O.Ms. No. 168, dated 10-3-1977)"

      Paragraph 8 mandates reservation in the matter of  direct  recruitment
relevant of which is quoted below:

      "8. Reservation in the matter of Direct Recruitment:- (1) 80%  of  the
posts to be filled by direct recruitment any time-
(a)  in  any  local  cadre  under  the  State  Government  comprising  posts
belonging to the category of lower division clerk or a  Category  equivalent
to or lower than that lower division clerk; and
(b) in any cadre under a local authority comprising post  carrying  a  scale
of pay the minimum of which, or a  fixed  pay  which  does  not  exceed  the
minimum of the scale of pay or a lower division clerk, shall be reserved  in
favour of local candidates in relation to the local area in respect of  such
cadre.
(2) 70% of the posts to be filled by direct recruitment at any time-

(a)  in  any  local  cadre  under  the  State  Government  comprising  posts
belonging to non-gazetted categories other than those referred  to  in  item
(a) of sub-paragraph (1); and

(b) in any cadre under a local authority comprising posts carrying  a  scale
of pay, the minimum of which, 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 mensum on any amount corresponding to it as may  be  specified  in  this
regard in the successive revisions  of  pay  scales  granted  by  the  State
Government  from  time  to  time  shall  be  reserved  in  favour  of  local
candidates in relation to the local area in respect of such cadre.  (G.O.Ms.
No. 635, G. A. (SPF.A) Dept, dated 30-11-93).

(3) 60 % of the posts to be filled by direct recruitment at any time in  any
local cadre under the State Government comprising  posts  belonging  to  the
categories  of  Tehsildars,   Assistant   Executive   Engineers,   Assistant
Agricultural Officers, Inspector of  Police  and  Motor  Vehicle  Inspectors
shall be reserved in favour of local candidates in  relation  to  the  local
area in respect of such cadre.(G.O.Ms. No. 498, G.A. (SPF. A) Dept, Dt.  16-
7-1977)(G.O.Ms. No. 34, G.A. (SPF. A) Dept, Dt. 24-1-1981)(G.O.Ms. No.  635,
G.A. (SPF. A) Dept, Dt. 30-11-1993).

(4)  Notwithstanding  anything  contained  in  sub-paragraph  (2)  or   sub-
paragraph(3) where, in respect of any of the categories referred to  in  the
said paragraph a single cadre has been  organized  for  two  or  more  zones
under sub-paragraph (5) of paragraph 3, 70% or as the case may be, 60  %  of
the posts to be filled by direct recruitment at anytime in such cadre  shall
be reserved in favour of and  allocated  amongst  the  local  candidates  in
relation to each of the local areas in respect of such cadre  in  the  ratio
specified in the Second Schedule  against  the  zone  comprising  each  such
local area.

(5) 60% of the posts under the State Government belonging  to  the  category
of Civil Assistant Surgeons to be filled by direct recruitment at  any  time
shall be reserved in favour of and allocated amongst  the  local  candidates
in relation to the local area specified in column (1)  the  Table  below  in
the respective ratios specified in the corresponding  entry  is  column  (2)
thereof."


      Paragraph 9  deals  with  carry  forward  of  reserved  posts,  if  no
candidate is available, which is as follows:

"(9) Carry forward of reserved posts:- If a  qualified  local  candidate  in
respect of a local area is  not  available  to   fill  a  post  reserved  or
allocated in favour of a local candidate in  respect  of  that  local  area,
such post shall be carried forward for recruitment of a local  candidate  in
respect of that local area for period not exceeding three years;

Provided that pending recruitment of a local candidate,  such  post  may  be
filled in temporarily by borrowing the service of a person  holding  a  post
of the same category in any other local  cadre  or  under  any  other  local
authority as the case may be (Vide G.O. Ms. No. 34,dt. 24-1-1981)."


      Paragraph 11 stipulates that the order to have overriding effect  over
Statute, Ordinance, Rule, Regulation or other order  made  before  or  after
the commencement of the said Order  in  respect  of  direct  recruitment  to
posts under the State Government or any local authority.

10.   After publication of the Presidential Order  1975  the  Government  of
Andhra Pradesh by G.O.P. No.729 dated  1st  November,  1975,  intimated  the
Scheme of the Order and directed the authorities  to  furnish  District-wise
list in case of categories of  Lower  Divisional  Clerk  and  equivalent  or
lower categories and Zone-wise list in the case of higher categories.

11.   Referring to  the  Presidential  Order,  1975,  Government  of  Andhra
Pradesh issued G.O.P No.763 dated  15th  November,  1975  communicating  the
Scheme and the procedure  to  be  followed  in  such  appointments  relevant
portion of which reads as follows:

"2.   Recruitment of candidates is basically of two types size, single  unit
i.e. single  cadre  recruitment  and  multiple  unit  i.e.,  multiple  cadre
recruitment. Where recruitment is made to fill vacancies in a  single  cadre
i.e., single unit of appointment comprising posts in a given category for  a
particular department, it can be categorized as  single  cadre  recruitment.
Where recruitment is made to fill vacancies in more than  one  cadre  (i.e.,
for than one unit of appointment in the  same  or  different  parts  of  the
State) comprising posts in a given category or different categories  in  one
or more department, such recruitment will  be  multiple  units  or  multiple
cadre recruitment. For example when recruitment is made  to  fill  vacancies
of Lower Division Clerk in a district in one department, it  becomes  single
cadre recruitment. Where, however, a combined recruitment is  made  to  fill
up the posts of Lower Division  Clerks  in  a  district  in  more  than  one
department of where  a  combined  recruitment    to    fill   vacancies   in
similar categories like Lower Division Clerks, Typists, Stenographers  etc.,
in one district in one or more departments  is  made,  it  becomes  multiple
cadre recruitment.

      3.    Recruitment to a single  multi-zonal  cadre  contemplated  under
the Presidential Order and to the category of Civil Assistant Surgeons  will
also come under the category  of  single  cadre  recruitment  but  with  the
difference that preference in the  matter  of  direct  recruitment  in  such
cases is to be given to local candidates not  one  local  area  but  of  the
different local areas covered by such cadre in the ratio prescribed  in  the
Presidential Order.

      4.    Multiple cadre recruitment may take different  forms  especially
in  the  implementation  of  the  proposed   Presidential   Order   on   the
organization of local cadres. It may take the form of:

      (a)   Recruitment to fill up the vacancies in a  single  category  for
different local cadres or different parts of the State (local areas) in  one
department, e.g. recruitment  of  Clerks  in  the  Judicial  Department  for
Courts in the districts undertaken by  the  Andhra  Pradesh  Public  Service
Commission.

      (b)   Recruitment to fill up the vacancies in identical  or  different
categories in different local cadres in different departments  in  one  part
of the State (local area) e.g., recruitment of Group-IV services  undertaken
by the Collectors now.

      (c)   Recruitment to fill up the vacancies in different categories  in
different local cadres in different departments of different  parts  of  the
Ste (local areas) e.g. recruitment of Group-II Services  undertaken  by  the
Andhra Pradesh Public Service Commission.

      5.    The State Government have considered the  manner  in  which  the
scheme of reservation in favour of local candidates provided in  the  Andhra
Pradesh Public Employment (Organization of Local Cadres  and  Regulation  of
Direct Recruitment) Order, 1975 should be implemented  taking  into  account
the provisions  made  in  regard  to  appointments  in  favour  of  Backward
Classes, the Scheduled Castes and the  Scheduled  Tribes  and  have  decided
that the procedure set out in the Annexure to this order may be followed  in
this regard.

6.    The procedure set out in Annexure-I to this order is  to  be  followed
for selection of candidates for recruitment of the categories  of  posts  of
which single cadre recruitment is made. The procedure set out  in  Annexure-
II will apply to selection of candidates of recruitment  of  every  category
of posts for which a Multi-zonal cadre is set up and also in the  matter  of
recruitment of the category of Civil  Assistant  Surgeons  where  the  posts
reserved in favour of local candidates are required to be appointed  in  the
prescribed ratio among local candidates of different local areas covered  by
such cadre. The procedure set out in Annexure-III to this  order  is  to  be
followed for selection of candidates for recruitment to  the  categories  of
posts for which multiple cadre recruitment is made.

7.     All  the  recruiting  authorities  and  appointing  authorities   are
requested to follow the instructions  annexed  to  the  said  G.O.P.  No.763
dated 15th November, 1975  while  making  recruitment  either  temporary  or
regular, to posts coming within the ambit  of  paragraph  8  of  the  Andhra
Pradesh Public Employment (Organization of Local Cadres  and  Regulation  of
Direct Recruitment) Order, 1975."



12.   On 13th December, 2001, the President of India  in   exercise  of  the
powers  conferred  by  clauses  (1)  and  (2)  of  Article  371-D   of   the
constitution  of  India,  amending  the  Andhra  Pradesh  Public  Employment
(Organization of Local Cadres and Regulation of Direct  Recruitment)  Order,
1975 namely - the Andhra Pradesh Public Employment  (Organization  of  Local
Cadres  and  Regulation  of  Direct   Recruitment)Amendment)   Order,   2001
published by  the  Government  of  India,  Ministry  of  Home  Affairs  S.O.
1219(E). The said Amendment Order reads as follows:

"2.   In the Andhra Pradesh Public Employment (Organization of Local  Cadres
and Regulation of Direct Recruitment) Order 1975:-

(1)   In paragraph 2 in Sub-Paragraph  (1),  to  clause  (a)  the  following
shall be added namely:-

      "The territorial Jurisdiction in respect of  the  posts  belonging  to
the Department  of  School  Education  shall  be  the  Revenue  District  of
Hyderabad."

(2)   In paragraph 8, in Sub-paragraph(1)  after  item  (b),  the  following
item shall be deemed to have been added with effect from the 1st June  2001,
namely;-

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

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

(3)   In paragraph 8, in Sub-paragraph (2) in item (a)  for  the  words  and
figure "in item (a) of Sub-paragraph (1)", the words  and  figure  "in  item
(a) or in item (c) of sub-paragraph (1)", shall be substituted."



13.   The Government of Andhra Pradesh by G.O.Ms. No.8  dated  8th  January,
2002  referring  to  paragraph  8  of  the  Presidential  Order,  1975  made
amendment in the procedure prescribed in paragraph 3 and 4 of Annexure-I  to
G.O.P.No.763 dated 15th November, 1975. The said GOMs. Reads as follows:

                        "GOVERNMENT OF ANDHRA PRADESH

GENERAL ADMINISTRATION (SPF-A) DEPARTMENT

G.O.Ms.No.8            Dated:08.01.2002

                          Read the following



G.O.Ms.No.674, GA(SPF-A) Department, dated 20.10.1975

G.O.P.No.729, GA(SPF-A) Department, dated 01.11.1975.

G.O.P.No.763, (SPF-A) Department, dated 15.11.1975

U.O. Note NO.237/SPF-A/85-2, GA(SPF-A) Department, dated 20.05.1985

G.O.Ms.No.2, G.A.(SPF-A) Department, dated 03.01.2002.

                                  O R D E R

       In  terms  of  para-8  of  the  Andhra  Pradesh   Public   employment
(Organization of Local Cadres and Regulation of Direct  Recruitment)  Order,
1975, i.e, Presidential Order, referred  to  in  the  reference  first  read
above, in the case of  District  Cadres,  80%  of  the  posts  under  Direct
Recruitment are reserved for local candidates, as defined in para-7  of  the
Presidential Order. The remaining 20% of the posts are open posts for  which
local and non-locals have to be considered on the basis of  combined  merit.
This aspect has already been clarified in the U.O. Note fourth  read  above.
The Government have also issued instructions in the G.O.  third  read  above
in the manner in which the posts have to be filled up.

2.    Government have re-examined the matter of filling up of the  posts  as
prescribed in the G.O. third read above.  Accordingly  it  is  decided  that
while filling up of the posts under Direct Recruitment,  the  first  20%  of
posts should be filled following combined merit  list  of  locals  and  non-
locals and, thereafter, the remaining 80% of the posts shall  be  filled  up
by locals  only.  However,  while  filling  up  of  the  posts  the  special
representation under Rule 22 of  the  A.P.  State  and  Subordinate  Service
Rules shall be followed suitably.

3.    Accordingly  the  following  amendment  is  issued  to  the  procedure
prescribed in paras 3 and 4  of  the  Annexure  I  to  the  G.O.(P)  No.763,
General Administrative (SPF.A) Department, dated 15th November, 1975.

4.     In respect of the Annexure-II &  III  to  the  G.O.  3rd  read  above
orders will be issued separately.



                                  AMENDMENT

5.    In the said orders, in the Annexure-I,

      (i)   for paragraphs 3  and  4  the  following  shall  be  substituted
namely,

"Para 3:    The provisional list shall be divided into two parts. The  first
part will comprise first 20% of the list. The second part will comprise  the
balance 80%. In case the provisional list does  not  contain  any  non-local
candidate in the second part the list shall be approved.

Para 4:     If, however, on the scrutiny referred to in para 3 it  is  found
that there are non-local candidates in the second part  of  the  list,  then
these candidates shall be removed and replaced by local candidates  ensuring
that the rule of reservation is followed.

(ii) the illustrations thereunder shall be omitted.

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)"

14.   It was followed by G.O.Ms.No.124 dated 7th March,  2002,  whereby  the
Government of Andhra Pradesh amended the procedure  prescribed  in  Annexure
II and III of  G.O.Ms.No.763  dated  15th  November,  1975  which  reads  as
follows:

                        "GOVERNMENT OF ANDHRA PRADESH

O R D E R

      In the G.O. 6th read above, orders were issued that while  filling  up
of the posts under Direct Recruitment, the first  20%  of  posts  should  be
filled following combined merit list of locals  and  non-locals  (i.e.  Open
Category) and, thereafter, the remaining 80% of the posts  shall  be  filled
up by locals only. While filling up of the posts the special  representation
under Rule 22 of the A.P. State  and  Subordinate  Service  Rules  shall  be
followed strictly. It was also ordered therein that the  amendments  to  the
Annexures II and III to the G.O. third read above be issued separately.

2.    Accordingly, the following amendments  are  issued  to  the  procedure
prescribed in the Annexures II and III  to  the  G.O.Ms.No.763,  G.A.(SPF-A)
Department, dated 15th November, 1975.

                             A M E N D M E N T S

In the said Government orders,

(1) In the Annexure - II,

(i)   for paragraphs 3 and 4, the following shall be substituted, namely,

      "3:   The Provisional list shall be divided into two parts. The  first
part shall comprise 30% of the posts consisting of combined merit  lists  of
locals as well as non-locals and the remaining second  part  shall  comprise
the balance 70% of the posts consisting of locals only and the  posts  shall
be filled duly following the rule of reservation."

(2)   in the Annexure -  III,  for  paragraph  3,  the  following  shall  be
substituted, namely,

      "3:   The provisional list shall be divided into two parts. The  first
part shall comprise 40% of the posts consisting of combined merit  lists  of
locals as well as non-locals and the remaining second part  shall  comprises
the balance 60% of the posts consisting of locals only and the  posts  shall
be filled duly following the rule of reservation."



15.   The applicability of the  aforesaid  G.O.Ms.No.124  dated  7th  March,
2002 is in dispute in the present case.

16.   In Shah Bhojraj Kuverji Oil  Mills  and  Ginning  Factory  v.  Subhash
Chandra Yograj Sinha, AIR 1961 SC  1596,  the  Constitution  Bench  of  this
Court while considering the question as to whether an  Act  is  to  be  made
operative prospectively or retrospectively held:

"12............  a  section  may  be   prospective   in   some   parts   and
retrospective  in  other  parts.  While  it  is  the  ordinary   rule   that
substantive rights should not be held to be taken  away  except  by  express
provision or clear implication, many Acts, though prospective in form,  have
been given retrospective operation, if the intention of the  legislature  is
apparent."



17.   In  Mst. Rafiquennessa vs. Lal Bahadur Chetri and others, AIR 1964  SC
1511, another  five-Judge  Bench  of  this  Court  while  dealing  with  the
question of effect of retrospective legislation on vested  rights  observed:


"It is not disputed by him that the legislature is competent  to  take  away
vested  rights  by  means  of  retrospective  legislation.  Similarly,   the
legislature is  undoubtedly  competent  to  make  laws  which  override  and
materially affect the terms  of  contracts  between  the  parties;  but  the
argument is that unless a clear and unambiguous intention  is  indicated  by
the legislature by adopting  suitable  express  words  in  that  behalf,  no
provision of a statute should be given retrospective operation  if  by  such
operation vested rights are likely to  be  affected.  These  principles  are
unexceptionable and as a matter of law, no objection can be taken to them."



18.   In absence of any express or  necessarily  implied  provision  in  the
statute, normally statute affects the rights prospectively.

      A statutory provision is held to be retrospective either  when  it  is
so declared by  express  terms,  or  the  intention  to  make  retrospective
clearly follows from the relevant  words  and  the  context  in  which  they
occur.

19.   The Presidential Order, 1975 was issued in exercise  of  powers  under
clauses (1) and (2) of Article 371-D  of  the  Constitution  empowering  the
State Government under sub-paragraph (1) of paragraph 3 of  the  said  order
to organize any class of posts in the civil services under  the  State  into
different local cadres in different parts of  the  State  within  27  months
from the commencement of the said order. Under proviso to sub-paragraph  (1)
it is stated that notwithstanding the expiration of  the  said  period,  the
President may by order, require the State Government whenever  he  considers
it expedient to do so to organize any class of posts in  civil  services  of
and any class of civil posts under the State into different local cadres  or
different parts  of  the  State.  By  Presidential  order,  1975  the  State
Government has not been empowered to pass any order under sub-paragraph  (1)
of paragraph 3 or paragraph 8 with  retrospective  effect.  Apart  from  the
fact that the State Government was not empowered by the Presidential  Order,
1975 to pass any orders with retrospective date, in absence of any terms  or
the intention to make it retrospective date, the G.O.Ms.  No.124  dated  7th
March, 2002 cannot be given effect from a retrospective date.

20.   In any case, the State Government cannot pass  any  order  amending  a
procedural law regarding reservation in the matter of  selection  to  posts,
with retrospective effect, once the procedure of selection starts.

21.   For the reasons aforesaid, we hold that the  G.O.Ms.No.124  dated  7th
March, 2002  is  prospective  and  is  not  applicable  to  the  process  of
selection started pursuant to Advertisement No.10 of 1999 including the  973
executive posts which were ordered  to  be  filled  up  by  the  High  Court
pursuant to the advertisement. The Tribunal erred in directing the APPSC  to
re-caste the merit list pursuant to G.O.Ms.No.124  dated  7th  March,  2002.
The High Court by the impugned judgment dated 27th  December,  2004  rightly
held that the order passed by the Court will  not  affect  the  appointments
already made to the executive post between 2001-2002 but  erred  in  holding
that the selection is to be made in accordance with G.O.Ms.No.124 dated  7th
March, 2002

22.   For the reasons aforesaid, we set  aside  the  orders  passed  by  the
Andhra Pradesh Administrative Tribunal  and  the  impugned  common  judgment
dated  27th  December,  2004  and  the  impugned  common  order  dated  28th
December, 2004  passed  by    the  Division  Bench  of  the  High  Court  of
Judicature, Andhra Pradesh at Hyderabad  in  Writ  Petition  Nos.  20106  of
2004, 21558 of 2004, etc.

      In view of the foregoing discussions, we  direct  the  respondents  to
fill  up  the  rest  of  the  posts  including  the   posts   of   Municipal
Commissioners Grade-III,  Asstt.  Commercial  Tax  Officers,  Asstt.  Labour
Officers in executive cadre and Asstt. Section  Officers  in  non  executive
cadre, which are vacant, as per President Order,  1975  and  the  Government
orders in consonance with the Presidential Order which  were  prevailing  in
the year 1999 when the Advertisement was  issued.  The  inter  se  seniority
between the persons appointed in the 1st round  and  the  persons  appointed
afterwards in the same cadre, if any, shall be decided  by  the  appropriate
authority in accordance with the  rules,  depending  on  the  merit  ranking
obtained by them.

23.    We  direct  the  authority  to  complete  the  process  of  selection
expeditiously preferably within three months. The appeals are  allowed  with
aforesaid observations and directions.


                         .................................................J.
                               (SUDHANSU JYOTI MUKHOPADHAYA)


                         .................................................J.
NEW DELHI;                                (V. GOPALA GOWDA)
FEBRUARY 18, 2015.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.