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SUPREME COURT OF INDIA
SUDHANSU JYOTI MUKHOPADHAYA, V. GOPALA GOWDA, JJ.
M. SURENDER REDDY – APPELLANT
VERSUS
GOVT. OF ANDHRA PRADESH AND ORS. – RESPONDENTS
Civil Appeal No. 5099 of 2006 With C.A. No.5100 of 2006 and C.A. No.5101 of 2006
Decided on: 18-02-2015
(b) Constitution of India – Article 371-D – Presidential Order, 1975 – Paragraph 3(1), Proviso – State Government notifying scheme by G.O.P. No.729 dated 1st November, 1975 and G.O.P No.763 dated 15th November, 1975 – Classifying local cadres and providing for reservation – State Government not empowered to pass any order with retrospective effect – Amendment by G.O.Ms. No.124 dated 7th March, 2002 – Once the procedure of selection starts, State cannot amend the procedures from retrospective effect (Para 19, 20)
AIR 1961 SC 1596; AIR 1964 SC 1511 – Relied upon
(c) Administration of Justice – Judicial propriety – G.O.Ms.No.124 dated 7th March, 2002 held prospective – High Court rightly holding its inapplicability to selection made in 1999 – Direction to make selection pursuant to Advertisement No.10 of 1999 in accordance with G.O.Ms.No.124 erroneous. (Para 21)
Facts of the case:
In exercise of the powers under sub-para (1) Paragraph 3 of the ‘Presidential Order, 1975’ the Andhra Pradesh State Government issued G.O.P. No.729 dated 1st November, 1975, whereby 70% of non-gazetted category posts other than Lower Division Clerk or equivalent posts were reserved in favour of local candidates.
On 28th December, 1999, the Andhra Pradesh Public Service Commission issued Advertisement No. 10 of 1999 to fill up certain Executive and Non-Executive Posts of 27 categories under Group-II services of State Government.
Later the State Government withdrew that part of the advertisement which called for applications to 141 vacant posts of Assistant Section Officers. 104 candidates were selected for executive posts in December 2000. Subsequently, in view of an order passed by the Tribunal in O.A. No. 7443 of 2000, filed against the non-exclusion of 141 posts of Assistant Section Officers 113 candidates including the appellants were recommended for non-executive posts i.e. Asstt. Sections Officers in February, 2002 based on marks obtained in written test.
Subsequently, as per the directions of the High Court, 973 Executive posts were included in Advertisement No.10 of 1999 and the APPSC selected 973 candidates for executive posts and prepared common merit list by including 104 candidates who were already appointed against executive posts.
Some of the candidates filed applications before Tribunal to implement G.O.Ms. No.124 dated 7th March, 2002 which was allowed by the Tribunal with a direction to the APPSC to re-caste the merit list by implementing the G.O.Ms. No.124. Being aggrieved by the said direction, when the appellants filed Writ Petitions, the High Court while dismissed the same directing to exclude the present appellants and other A.S.Os from consideration to the executive posts.
Finding of the Court:
G.O.Ms.No.124 dated 7th March, 2002 is prospective and is not applicable to the process of selection started pursuant to Advertisement No.10 of 1999 including the 973 executive posts which were ordered to be filled up by the High Court pursuant to the advertisement.
Result: Appeals allowed.
Key Points: - G.O.Ms.No.124 dated 7th March, 2002 is prospective and not applicable to selections already started under Advertisement No.10 of 1999; retrospective applicability was rejected. (!) (!) (!) - Presidential Order 1975 and paras on local cadres/preference: State cannot grant retrospective effect to amendments affecting direct recruitment under the Order; selection processes started prior to any amendment must follow the rules in force at the time, and amendments cannot derail vested selections. (!) (!) (!) (!) - The Court directed completion of remaining vacancies in accordance with the Presidential Order and pre-2002 Government orders; no re-casting of merit lists for already appointed candidates except as per rules in force in 1999. (!) (!) - The warnings and interpretations on retrospective versus prospective operation of statutes and orders, with citations to constitutional provisions and earlier cases. (!) (!) (!) (!) - The appeals are allowed; the Tribunal and High Court directions to re-caste merit lists were reversed; carry forward/appointment procedures to be finalized expeditiously. (!) (!) - Local cadre reservation framework (80/20, etc.) under Presidential Order 1975 and amendments (G.O.Ms.124, 2002) subject to prospective application; issues of inter se seniority to be decided per rules. (!) (!) (!) (!)
Judgment
Sudhansu Jyoti Mukhopadhaya, J.
These appeals have been preferred by the appellants against common judgment dated 27th December, 2004 passed by the Division Bench of the High Court of Judicature, Andhra Pradesh at Hyderabad in Writ Petition Nos. 20106, 20350, 20539 and 21554 of 2004 and common order dated 28th December, 2004 passed by the same High Court in Writ Petition Nos. 20215, 20305, 21558 and 23173 of 2004. By the impugned common judgment, the High Court dismissed the writ petitions, upheld the finding of the Andhra Pradesh Administrative Tribunal (hereinafter referred to as the “Tribunal”) and held as follows:
“26. In view of our foregoing discussions, we record the following conclusions:
(a) The finding of the Tribunal that the selection process has to be in accordance with the G.O.Ms. No.124, dated 8.8.2002 cannot be said to be erroneous or contrary to law.
(b) But, however, the direction that the entire select list has to be reviewed clubbing the appointments under 1st round selection is not sustainable and accordingly the procedure as contemplated under G.O.Ms. No.124 has to be followed only in respect of the candidates excluding the appointments already made in 2001 and 2002 namely Asstt. Municipal Commissioners Grade-III, Asstt. Commercial Tax Officers, Asstt. Labour Officers and Asstt. Section Officers in non-executive cadre in view of the peculiar and circumstances of this case.
(c) The inter se seniority between the 1st round appointees and later inducted persons under second round selection in the same cadre if any shall be decided by the appropriate authority in accordance with rules, depending on the merit ranking obtained by them.
(d) The Reservation to PHC category wherever it is not provided under the Special Rules cannot be claimed and hence the findings of the Tribunal do not call for any interference.
27. We do hope that the process of selection would be completed expeditiously without further hurdles. Subject to the above conclusions, the Writ Petitions stand dismissed.”
By the impugned common order, the High Court disposed of the said writ petitions in terms of the common judgment dated 27th December, 2004 in Writ Petition No.20106 of 2004.
2. The brief facts of the case are as follows:
The President of India in exercise of powers conferred by Clause (1) and (2) of Article 371-D of Constitution of India made the Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 dated 20th October, 1975 (hereinafter referred to as “Presidential Order”). Sub-Paragraph(1) of Paragraph 3 of the said order gives power to the State Government to organize classes of posts in the civil services of and classes of civil posts under the State into different local cadres for different parts of the State within 27 months from the commencement of the said order. Paragraph 8 relates to reservation in the matter of direct recruitment. Relevant portion of which reads as follows:
“8. Reservation in the matter of Direct Recruitment:– (1) 80% of the posts to be filled by direct recruitment any time-
(a) in any local cadre under the State Government comprising posts belonging to the category of lower division clerk or a Category equivalent to or lower than that lower division clerk; and
(b) in any cadre under a local authority comprising post carrying a scale of pay the minimum of which, or a fixed pay which does not exceed the minimum of the scale of pay or a lower division clerk, shall be reserved in favour of local candidates in relation to the local area in respect of such cadre.
(2) 70% of the posts to be filled by direct recruitment at any time-
(a) in any local cadre under the State Government comprising posts belonging to non-gazetted categories other than those referred to in item (a) of sub-paragraph (1); and
(b) in any cadre under a local authority comprising posts carrying a scale of pay, the minimum of which, or a fixed pay which exceeds the minimum of the scale of pay
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