IMPORTANT POINT
Rule of per incurium can be applied where a Court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.

ORDER

Permission to file SLP granted. Impleadment application allowed.

2. Delay condoned.

3. Leave granted.

4. The short question that arises in these appeals is whether the post of Regional Transport Officer in the Department of Transport can be filled in by transfer of Section Officers of the Secretariat and Superintendents of the Office of the State Transport Authority. The recruitment to the posts of Regional Transport Officers are governed by the rules known as Andhra Pradesh Transport Services Rules framed under Article 309 of the Constitution (hereinafter referred to as the rules). Rule 3(a) provides the method of recruitment to the post of Regional Transport Officer. Rule 3(a) reads as under :-

Category IV : Regional Transport Officer-

1. By direct recruitment

2. By promotion from among Motor Vehicles Inspectors

3. By recruitment by transfer from among :

(i) Superintendents of the Office of the State Transport Authority.

(ii) Superintendents of the Sub-ordinate Offices; and

(iii) Section Officers of the Secretariat except Law, Finance and Legislatiure Departments.

5. Rule 3(a) further provides that the first vacancy in the post of Regional Transport Office is to go to the Motor Vehicle Inspector. The second vacancy is meant for Superintendents of the Office of the State Transport Authority. The third vacancy is to go to Motor Vehicles Inspectors. The fourth vacancy is earmarked for Section Officers of the Secretariat. Fifth vacancy is for Superintendents of sub-ordinate offices of the Multizone. Sixth vacancy is for Motor Vehicles Inspectors. Seventh vacancy is meant for Superintendents of sub-ordinate offices of the Multizone. It is against second and fourth vacancies, the employees working as Superintendents in the Office of the State Transport Authority and as Section Officers in the Secretariat were appointed as Regional Transport Officers by transfer. The said appointments were challenged by the employees working in the office of the Regional Transport Offices.

6. The Andhra Pradesh Administrative Tribunal found that the appointments of Superintendent in the office of State Transport Authority and Section Officers working in the Secretariat to the posts of Regional Transport Officers are contrary to the Presidential Order of 1975. Consequentially, their appointments were set aside. It is against the said order and judgment the appointees whose appointments were set aside and State of Andhra Pradesh are in appeal before us.

7. Learned counsel for the appellant urged that this matter stands concluded by a decision of this Court in the case of State of A.P. v. Sadanandam1 wherein it was held that overriding power has been given to the State Government under paragraph 5(2) of the Presidential Order in express terms in recognition of the principle that public interest and administrative exigencies has precedence over the promotional interest of the members of the local cadres and zones and therefore, the State Government by order of transfer can fill the vacancies on the posts in different zones, as contemplated under the Rules.

8. Learned counsel for the respondent attempted to convince us that the decision in the case of State of A.P. v. V. Sadanandam (supra) has to be ignored on the principle of per incurium as certain relevant provisions of the Rules were not considered in the said case, and in any case this case requires to be referred to a larger bench of three Judges. Rule of per incurium can be applied where a Court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. This is not the case here. In State of A.P. v. V. Sadanandam (supra) the controversy was exactly the same as it is here and this court after considering paragraph 5 of the Presidential Order of 1975 held that the Government has p