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IN THE HIGH COURT OF ANDHRA PRADESH
S.B. SINHA, V.V.S. RAO, JJ.
K. Radhakrishna Reddy — Appellant
Versus
Government Of A.P — Respondent
WP No. 23668 of 2000
Decided on : 12-10-2001
Advocate Appeared:
For the Appellant :Mr. P. Balakrishna Murthy, Advocate
For the Respondent: Mr. M. Surender Rao, Mr. P.V. Krishnaiah, adv
Headnote:
Andhra Pradesh Public Health and Municipal Engineering Service - Constitution of India - Article 14 – Assistant – Appointment - Each part of State for which a local cadre has been organized in respect of any category of posts shall be a separate unit for purposes of recruitment appointment discharge seniority promotion and transfer and such other matters are may be specified by State Government in respect of that category of posts – Held, In decision in question that fell for consideration as regards validity of Rule 3(a) of A.P. Transport Service Rules framed under Article 309 of Constitution of India – Thereupon Regional Transport Officers could be appointed by direct recruitment and recruitment by transfer from certain category of posts - A contention has been raised to effect that decision in were per incur am on ground that Presidential Order does not permit the recruitment by transfer – Unfortunately attention of Court was not drawn to fact that in State exercised its jurisdiction under 5(2) of Presidential Order - In any event present case poses a different question viz. whether posts earmarked for promotion can be filled up by way of appointment by transfer - Said question did not fall for consideration before Apex Court either - A Full Bench of Tribunal held that the same is volatile of Presidential Order - In that case amendment had been brought by Government in exercise of its powers under Paragraph Presidential Order - In instant case amendment has not been effectuated by Presidential Order - Petition is allowed
JUDGMENT :
S.B. Sinha, J.
The vires of G.O. Ms. No.202 dated 14-8-1997 is in question in this writ petition, which is directed against the judgment and order dated 20-11-2000 passed by the A.P. Administrative Tribunal.
2. The petitioners were appointed in the A.P. Public Health and Municipal Engineering Department in the year 1974 as Assistant Engineers. They have not been promoted to the Deputy Executive Engineers. The State issued G.O. Ms. No.168 dated 20-2-1965 in exercise of its powers under A.P. Public Health and Municipal Engineering Service Rules. A.P Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 was issued through G.O. Ms. No.694 dated 29-10-1977 with retrospective effect and retroactive operation from 18-10-1975 known as Presidential Order.
3. Paragraph-3 to the Presidential Order ordains the State Government to organise classes of posts in the civil services into different local cadres for different parts of the State. Paragraph-4 of the Presidential Order provides for the manner in which persons holding posts shall be allotted to such cadres.
4. Paragraph-5 of the Presidential Order reads thus:
Local cadres and transfer of persons :-
(1) Each part of the State for which a local cadre has been organised in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment, discharge, seniority, promotion and transfer, and such other matters are may be specified by the State Government, in respect of that category of posts.
5. The State, however, with a view to make provision for promotion of Municipal Assistant Engineers of the Municipal Engineering Service to the post of Deputy Executive Engineers which is a civil post, amended the said Service Rules through G.O. Ms. No.168 dated 8-2-1977. On 7-1-1997, G.O. Ms. No.15 was issued providing a common seniority list of both the Assistant Executive Engineers and Assistant Engineers of the Public Health and Municipal Engineering Department and the Municipal Engineering Service and for promotion as Deputy Executive Engineers in the Civil Service. An Original Application was filed questioning the said GO before the Tribunal and the Tribunal by an order dated 31-1-1997 directed the Government to give promotions to the post of Deputy Executive Engineers as per the statutory rules and not in accordance with the executive instructions dated 7-1-1997. However, by reason of the said judgment, an opportunity was given to the State to make appropriate rules. Pursuant to and in furtherance of the same, the State issued G.O. Ms. No.202, Municipal Administration Department dated 14-8-1997 in terms whereof, the table made in terms of Rule 3 of the Special Rules was issued providing a cycle for promotion to the post of Deputy Executive Engineers also from Assistant Executive Engineers and Assistant Engineers of the Municipal Engineering Service. The said rule was given retrospective effect by G.O. Ms. No.224 dated 11-9-1997 with effect from 10-4-1997. Questioning the said rule, the petitioners approached the Tribunal by filing the OA. By reason of the impugned judgment, the Tribunal struck down the retrospective effect thereof, but otherwise upheld the validity thereof. In this writ petition, the petitioners question the correctness or otherwise of the said judgment.
Submissions :
6. Mr. P. Balakrishna Murthy, learned Counsel appearing on behalf of the petitioners has raised the following contentions in support of the writ petition.
(1) The posts in Municipal Engineering Service cannot be said to be posts in Civil Service.
(2) The impugned rules therefore contravene the paragraphs 3 and 5 of the Presidential Order. Reliance in this connection has been placed on the decisions in S. Prakash Rao v. Commissioner of Commercial Taxes, AIR 1990 SC 997 and Govt. of A.P. v. A. Suryanarayana Rao, AIR 1991 SC 2113.
(3) Section 71 of the A.P. Municipalities Act inter alia provides for appointment of Municipal Engineers. Thus,
