IMPORTANT POINT
The Administrative Tribunal was wrong in taking the stand that Rule 22 of A.P. Commercial Tax Subordinate Service Rules would apply only to reservation for appointment by direct recruitment. This equally applies for appointment by promotion.

Headnote:A. P. Commercial Tax Subordinate Service Rules-Rules 5 and 22-Administrative Tribunal holding that though the posts of Asstt. Commercial Tax Officer etc. are governed by Rules made under Proviso to Art. 309 of Constitution, Rule 22 of the Rules is not applicable to the recruitment by transfer and promotion-Whether the view taken by the Tribunal is correct ? (No, in view of special rules holding the field) (Para 4 r/w para 11)-Appeal allowed. (Constitution of India-Articles 136, 141B, 16(1) and 16(4)).

ORDER

Leave granted.

2. Though the respondents have been served with notice they are not appearing either in person or through counsel.

3. We have heard Sri Ram Kumar, learned counsel for the appellants.

4. This appeal by special leave arises from the order of the Administrative Tribunal of Andhra Pradesh passed on December 2, 1992 in O.A. No. 5158/92. The Tribunal in the impugned order has held that though the posts of Assistant Commercial Tax Officers etc. are governed by rules made under proviso to Article 309 of the Constitution issued in G.O. Ms. No. 107 dated January 30, 1962 and G.O. Ms. No. 8 revenue, dated February 3, 1990, Rule 22 of the A.P. State and Subordinate Service Rules is not applicable to the recruitment by transfer and promotion. Consequently, the Government was not justified in applying the rule to the above services. The view taken by the Tribunal is not correct in view of special rules holding the field.

5. Rule 5 of the A.P. Commercial Tax Subordinate Service Rules (the special Rules) reads thus :

"Special Representation:-Except in so far as it relates to physically handicapped persons the rule of special representation (General Rule 22) shall apply separately to the appointment of Commercial Tax Officers by direct recruitment and to their appointment by transfer."

6. Rule 22 of the State and Subordinate Service Rules, which is the general rule, which alone is relevant for the purpose of this case reads thus :

"22. Special Representation : All appointment to a service, class or category.

(i) by direct recruitment, except where the Government by a general or special order made in this behalf except such service, class or category ;

(ii) otherwise than by direct recruitment, where the special rules lay down that the principle of reservation of appointments shall apply to such service, class or category ; shall be made on the following basis;

"Provided further that the carry forward vacancies and current reserved vacancies in a recruitment year shall be available for utilisation even where the total number of such reserved vacancies exceeds (52%) of the vacancies filled that year in case the overall representation of the Scheduled Castes and Scheduled Tribes in the total strength of the concerned grade or cadre, has not reached the prescribed percentage of reservation of (15%) for the Scheduled Castes and (6%) for the Scheduled Tribes respectively."

7. Rule 5 of the Special Rules envisages applicability of Rule 22 of the State and Subordinate Service Rules (General Rules) for apointments to the above service. The relevant proviso to rule 22 extracted hereinbefore postulates that the carry forward vacancies and current reserved vacancies in a recruitment year shall be available for utilisation even where the total number of such reserved vacancies exceeds 52% of the vacancies filled that year in case the overall representation of the Scheduled Castes and Scheduled Tribes in the total strength of the concerned grade or cadre, has not reached the prescribed percentage of reservation of 15% (subsequently increased to 16%) and for the Scheduled Tribes 6% (subsequently increased to 7%), as the case may be.

8. In General Manager, Southern Railway v. Rangachari1, the Constitution Bench per majority had held that the matters relating to employment cannot mean merely matters prior to the act of appointment nor can appointment to an office mean merely the initial appointment but must include all matters relating to employment whether prior or subsequent to the employment that the either incidental to such employment or form part of its terms and conditions and also include promotion to a selection post. This principle was reiterated by a bench of 7 Judges of this Court in State of Kerala v. N.M. Thomas & Ors.2. The same was followed per majority in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India & Ors.3. It was thus interpreted by this Court that appointment would include p

Click Here to Read the rest of this document

1996 Supreme(SC) 124

IMPORTANT POINTThe Administrative Tribunal was wrong in taking the stand that Rule 22 of A.P. Commercial Tax Subordinate Service Rules would apply only to reservation for appointment by direct recruitment. This equally applies for appointment by promotion.

Cases Referred (2)

IMPORTANT POINT
The Administrative Tribunal was wrong in taking the stand that Rule 22 of A.P. Commercial Tax Subordinate Service Rules would apply only to reservation for appointment by direct recruitment. This equally applies for appointment by promotion.