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SUPREME COURT OF INDIA
T.S. THAKUR, C. NAGAPPAN, JJ.
K. Madhava Reddy & Ors. – Appellants
Versus
Govt. of A.P. & Ors. – Respondents
CIVIL APPEAL NOS. 4947-4951 OF 2014 (Arising out of S.L.P. (C) Nos.36274-36278 of 2010) WITH Contempt Petitions (C) No.445-449 of 2013
Decided On : 29-04-2014
(1997) 5 SCC 201; (2001) 5 SCC 519; (2002) 6 SCC 562; (1993) 4 SCC 727 – Relied upon
1989 Supp. (1) SCC 574; (2000) 4 SCC 262; 1989 Supp. (1) SCC 574; (2000) 4 SCC 262; AIR 1967 SC 1643; (1990) 1 SCC 12; (1990) 1 SCC 12; 1991 Suppl. (1) SCC 430; (1991) 1 SCC 588; (1973) 4 SCC 225 – Referred
(b) Service Law – Promotion – Pursuant to Government policy employees promoted to higher posts outside their cadre by transfer by promotion – Serving for long periods as such – Employees cannot be said to have calculated risk – Said policy declared unconstitutional – Employees ought to be reverted back to parent cadre – However equivalent higher posts in parent cadre already filled – Doctrine of prospective overruling required to be invoked – Rightly held that promotions prior to 7th November, 2001 should not be disturbed. (Para 18, 19)
(2002) 6 SCC 562 – Relied upon
(2001) 10 SCC 401 – Referred
Facts of the case:
Senior Assistants and Senior Stenographers working in the Subordinate Offices of the Labour Department constitute the feeding channel under Rule 3 of Andhra Pradesh Labour Subordinate Service Rules. However the State Government by Order provided that Senior Assistants and Senior Stenographers working in the Head Offices shall also be eligible for appointment by transfer to the post of Assistant Labour Officer.
Aggrieved by the G.O.Ms, some of the employees approached the Andhra Pradesh Administrative Tribunal on the ground that since the post of Assistant Labour Officer is a zonal post, employees working in the respective zones alone were entitled to be included in the feeding channel. Inclusion of other categories from outside the zone in the feeding channel for purposes of promotion or appointment by transfer was offensive to paras 3(3) and 5(1) of the Andhra Pradesh Public Employment (Organisation of Local Cards and Regulation of Direct Recruitment) Order, 1975.
These petitions were partly allowed by the Tribunal which struck down G.O.M. No.14, dated 26th November, 1994, as amended by G.O.M. No.22 dated 9th May, 1996 as unconstitutional to the extent the same provided a channel for Senior Assistant and Senior Stenographer in Andhra Pradesh Ministerial Service working in the Head Offices of Labour Department and those in Factories and Boiler Departments besides those in the Subordinate Offices in the said Departments for appointment by transfer to the post of Assistant Labour Officer. The Tribunal also struck down related provisions in the impugned G.O.Ms. stipulating quota and rotation etc. for these categories as being in violation of the Presidential Order with a direction that the respondents shall not give effect to the said provisions. The Tribunal also directed that the striking down of the impugned G.O.Ms. would only be prospective and that any action taken in compliance with the said Rules till 7th November, 2001 shall not be disturbed nor any employee promoted on the basis of the legal position that prevailed earlier to the decision in V. Jagannadha Rao’s case reverted.
The aggrieved employees filed Writ Petitions challenging the judgment of the Tribunal to the extent it saved the promotions already made on the basis of the impugned G.O.Ms. Writ Petition No.16890 of 2006 was also filed against the very same judgment by some of the employees who felt aggrieved by the view taken by the Tribunal that the impugned G.O.Ms. were in violation of the Presidential Order hence unconstitutional.
A Division Bench of the High Court allowed Writ Petitions No.6123 and 6068 of 2004 but dismissed Writ Petition No.16890 of 2006. The net effect of the view taken by the High Court is that not only are the impugned G.O.M. held to be unconstitutional, but any action taken pursuant thereto is also declared to be unconstitutional.
The appellants, employees who were not arrayed as parties to the writ petition, Review petition on the ground that they were not impleaded even though they were bound to be adversely affected by any modification that the High Court may have made.
The review petition was dismissed by the High Court on the ground that the order passed by the Tribunal ought to have been challenged in a separate and independent writ petition by anyone aggrieved by the same.
Finding of the Court:
Promotions prior to 7th November, 2001 should not be disturbed.
Result: Appeals dismissed. Contempt petitions dismissed.
JUDGMENT
T.S. THAKUR, J.
1. Leave granted.
2. These appeals are directed against an order dated 9th March, 2007 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad whereby the High Court has set aside the order passed by the State Administrate Tribunal in OA No.6334 of 1997 to the extent the same holds the judgment of this Court in V. Jagannadha Rao and Ors. v. State of Andhra Pradesh and Ors. (2001) 10 SCC 401, to be prospective in its application. An order dated 3rd November, 2010 passed by the High Court dismissing a review petition filed by the appellants against the said order has also been assailed. The facts in the backdrop are as under:
3. In V. Jagannadha Rao and Ors. v. State of Andhra Pradesh and Ors. (2001) 10 SCC 401, a three-Judge Bench was examining whether Special Rules framed by the Governor of Andhra Pradesh under proviso to Article 309 of the Constitution to the extent the same permitted “appointment by transfer” to a higher category on the basis of seniority-cum-efficiency were violative of para 5(2) of the Presidential Order issued under Article 371-D of the Constitution of India, 1950. Answering the question in the affirmative this Court held that the Presidential Order dated 18th October, 1975 issued under Article 371-D of the Constitution was aimed at providing equitable opportunities and facilities to the people belonging to different parts of the State in the matter of public employment, education etc. and that the Rules framed by the State Government under proviso to Article 309 whereby UDCs of the Labour Department, and Factories and Boilers Department were made eligible for recruitment by transfer to the posts of Assistant Inspector of Labour/Assistant Inspector of Factories were violative of the Presidential Order. The question had arisen on account of a challenge mounted by the Ministerial employees of the Labour Department against GOMs No.72 dated 25th February, 1986 and GOMs No.117 dated 28th May, 1986 whereunder UDCs in the Labour Department and those working in Factories and Boilers Department were made eligible for recruitment by transfer to the posts of Assistant Inspectors of Labour and Assistant Inspectors of Factories. A full Bench of Tribunal before whom the challenge came up for consideration declared that the impugned Rules to the extent they enabled the Ministerial employees of the Factories and Boilers Department or any other department to be considered for appointment to the posts in the Labour Department were violative of paras 3 and 5 of the Presidential Order and hence void. The view taken by the Tribunal was questioned before this Court by the aggrieved employees. Dismissing the appeals, this Court held that according to the scheme of the Presidential Order, local cadre was the unit under para 5(1) thereof for recruitment, appointment, seniority, promotion and transfers. This Court further held that while para 5(2) authorised the State Government to make provisions for ‘transfer’ in certain specified circumstances, yet the term ‘transfer’ could not be enlarged in its amplitude so as to include promotional aspects. This Court observed:
“18. 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. No provision or word in a statute has to be read in isolation. In fact, the statute has to be read as a whole. A statute is an edict of the legislature. It cannot be said that without any purpose the distinction was made in para 5(1) between transfer and promotion and such distinction was not intended to be operative in para 5(2). The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid as to what has been said as also to what has not been said. (See Mohd. Ali Khan v. CWT
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