VERY IMPORTANT POINT
The judgment of Andhra Pradesh Administrative Tribunal striking down certain provisions of the Special Rules framed under Article 309 of the Constitution of India, 1950 holding them to be violative of the Presidential Order issued under Article 371D of the Constitution is correct and the earlier judgments of the Apex Court in Sadanandam s case 1989 Suppl. (1) SCC 574 and Satyanarayana Rao s case 2000(4) SCC 262 are not correctly decided.

Headnote:(i) Constitution of India, 1950-Article 317D -Object of this Article.
       Held : The 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.
        (2) To provide equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public service.
        (3) This was observed to be so in Chief Justice of Andhra Pradesh vs. L.V.A. Dikshitulu (AIR 1979 SC 193). (Para 8)
       (ii) Constitution of India, 1950-Article 309-Special Rules framed under-Andhra Pradesh Administrative Tribunal holding that certain provisions of the Special Rules are violative of the Presidential Order issued under Article 371D of the Constitution-Whether correct? (Yes)-View of Apex Court in Sadanandam s case 1989 Supp. (1) SCC 574 and Satyanarayana Rao s case 2000(4) SCC 262 regarding scope and ambit of para 5(2) of the Presidential order issued under Article 371D of the Constitution of India, 1950 is correct? (No)-Result-Appeals dismissed.
       Held : It 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)(c). 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 untenble. (Para 9)
       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. (Para 10)
       Held : Thus we 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. (Para 12)
       Held consequently : We, therefore, find no reasons to accept this stand of the appellant that the expression transfer takes within its scope a promotion. (Para 12)
       Held further : In Sadanandam s case, 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. Even 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 Sadanandam s case must be held to have not been correctly decided. As a consequence, so would be the case with Satyanarayana Rao s case. (Para 14)
       Held also : 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 concerned Department. The appeals are without any merit and are accordingly dismissed. (Para 15)

JUDGMENT

Arijit Pasayat, J.-Doubting correctness of the view expressed in two decisions rendered by two Hon ble 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) LRs. & Ors. (200(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 before us.

The 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.

2. 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, UDC s of the Labour Department and Factories

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2001 Supreme(SC) 1561

Cases Referred (7)