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2001 DIGILAW 1274 (AP)

K. Radhakrishna Reddy v. Government Of A. P

2001-10-12

S.B.SINHA, V.V.S.RAO

body2001
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. 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, the said rules cannot be amended by the State in exercise of its jurisdiction under proviso to Article 309 of the Constitution. 7. Mr. M. Surender Rao, learned Counsel appearing on behalf of the respondents on the other hand would submit that a bare perusal of the provisions of the A.P. Municipalities Act and the rules made thereunder would clearly show that the members of Municipal Engineering Service also hold civil posts and the said service is a civil service. Reliance has been placed on State of Gujarat v. Raman Lal Keshav Lal, AIR 1984 SC 161 and on State of U.P. v. Chandra Prakash Pandey, 2000 AIR SCW 1178. 8. Mr. Reliance has been placed on State of Gujarat v. Raman Lal Keshav Lal, AIR 1984 SC 161 and on State of U.P. v. Chandra Prakash Pandey, 2000 AIR SCW 1178. 8. Mr. M Surender Rao would contend that the decision of the Apex Court in S. Prakash Rao (supra) is not applicable to the facts in the instant case and would submit that the issue is squarely covered by a decision of the Supreme Court in State of A.P. v. Sadanandam, AIR 1989 SC 2060 . Our attention has been drawn to the effect that the contention raised that the said decision was rendered per incuriam was rejected by the Supreme Court in State of A.P. v. B. Satyanarayana Rao, AIR 2000 SC 1729 . Questions : 9. The questions, which arise for consideration in this writ petition, are: 1. Whether transfer by promotion of an employee from a service constituted under a local authority like Municipalities under an Act of the State Legislature and the Rules made thereunder could be brought into a civil service by rules made under Article 309 of the Constitution of India. 2. Are the rules so made not repugnant to and violative of the provisions of the Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 popularly known as the Presidential Order. Findings : 10. The impugned amendment does not lay down any guidelines as to how to pick up an employee either from the Public Health or Municipal Engineering Service under the local authorities and the entire aspect has been left to the discretion of the appointing authority. This violates Article 14 of the Constitution. 11. Clause 10 of Article 371-D of the Constitution of India reads thus: The provisions of this Article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force. The said provision deals with public employment. 12. While interpreting Civil Service and Civil Post as contained in paragraph-3 of the Presidential Order, the expression `public employment' contained therein must be borne in mind. It is not in dispute that the services of the petitioners are governed by the A.P. Municipalities Act. 13. Section 71(1), (4) and (6) of the said Act reads thus:- 71. 12. While interpreting Civil Service and Civil Post as contained in paragraph-3 of the Presidential Order, the expression `public employment' contained therein must be borne in mind. It is not in dispute that the services of the petitioners are governed by the A.P. Municipalities Act. 13. Section 71(1), (4) and (6) of the said Act reads thus:- 71. Appointment of Municipal Health Officer, Municipal Engineer, Education Officer and Town Planning Officer :- (1) For any municipality, the Government may sanction a post of Municipal Health Officer, a post of Municipal Engineer, a post of Education Officer and a post of Town Planning Officer : Provided that in the case of a municipality which has an annual income of less than three lakhs of rupees from ordinary receipts, the Government may, without sanctioning the post of a Municipal Health Officer, a Municipal Engineer, an Education Officer, or a Town Planning Officer, on such terms as may be specified by the Government to exercise the power and discharge the functions of a Municipal Health Officer, a Municipal Engineer, an Education Officer, or a Town Planning Officer, as the case may be; Provided further that when the Officer of the Public Health Department or the Public Works Department, Education Department or the Town Planning Department is appointed to exercise the powers and discharge the functions under this Act, such of the powers and functions as are exercisable by any authority under this Act in consultation with the Municipal Health Officer, Municipal Engineer, Education Officer or Town Planning Officer shall be exercised by such authority after consultation with the concerned officer appointed under the foregoing proviso; Provided also that where there is no Municipal Health Officer, Municipal Engineer, Education Officer, or Town Planning Officer, the Commissioner shall exercise the powers and discharge the functions of such officer. (4) All the appointments to posts sanctioned under sub-section (1) shall be made by the Government. (5) ..... (6) The Government shall pay out of the Consolidated Fund of the State, salaries, allowances, pension and contribution, if any towards the provident fund or pension cum provident fund of every officer appointed by the Government under sub-section (4). 14. Section 71 gives rule-making power to the Government relating to recruitment/service conditions etc., of officers appointed under Sections 29 and 71. Section 72(2) gives powers to the Government to withdraw any officer appointed under Section 71. 14. Section 71 gives rule-making power to the Government relating to recruitment/service conditions etc., of officers appointed under Sections 29 and 71. Section 72(2) gives powers to the Government to withdraw any officer appointed under Section 71. Section 73 speaks about other officers and employees. Section 75 gives powers to the Government to transfer officers. Section 77 categorically says that there is no power to punish officers appointed under Section 29 or Section 71 and also such of those officers for whom municipal service for the State is constituted under Section 80. 15. Rule 3(a) speaks of Unit of appointment i.e., appointment which is nothing but a zone and the appointing authority is the Chief Engineer of the Public Health Department. Rule 5 enables application of Rule 22 of the A.P. State and Subordinate Service Rules for appointments. Postings and transfers are to be effected in terms of Rule 10 of the said Rules by the Chief Engineer of the Public Health. Yet again, A.P. Civil Services (Classification, Control and Appeal) Rules are applicable in relation to the members of A.P. Municipal Engineering Service Rules in terms of Rule 12. The Conduct Rules in terms of Rule 13 are also applicable to the members of Municipal Engineering Service. Rule 14 provides that the Chief Engineer, Public Health shall be competent to sanction leave etc. Fundamental Rules, Rules made in the manual of Special Pay Allowances, A.P. Leave Rules, A.P. Liberalized Pension Rules, A.P. Family Pension Rules etc., are applicable to the members of the Municipal Engineering Service. There cannot, therefore, be any doubt that the respondents are also the holders of Civil Posts. 16. In Raman Lal Kehsav Lal (supra), the Apex Court held: We are, therefore, of the view that the Panchayat service constituted under Section 203 of the Gujarat Panchayats Act is a civil service of the State and that the members of the service are Government servants. ........... The conclusion which emerges from this discussion is that the Panchayat service is a distinct and separate service set up for serving the Panchayat Organisation of the State and it is as much a civil service of the State as the State service. The State can have many services such as State service, police service, engineering service, etc., and Panchayat service in one of them. The State can have many services such as State service, police service, engineering service, etc., and Panchayat service in one of them. In the Panchayat service, as in the State service, the State is the master and every officer or servant employed in the Panchayat service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat service is one single service with the State as the master. 17. Yet again in Chandra Prakash Pandey (supra) the said decision was followed. 18. Further, paragraph-5 of the Presidential Order is absolutely clear and unambiguous. By reason thereof, a zone is created and unless an amendment is effected by the President in the Presidential Order, except in the case where public interest is involved, a person from one zone cannot be transferred to another zone. 19. The scope, effect and purport of the Presidential Order has been considered recently by the Apex Court in Govt. of A.P. v. Mohd. Ghouse Mohinuddin, JT 2001 (7) SC 146, wherein the Apex Court considered the effect of its earlier decisions in Govt. of A.P. v. A. Suryanarayana Rao (supra), and S. Prakash Rao (supra). The expression `public employment' has been held to mean both direct recruitment as well as promotion. A distinction must be borne in mind about the vested right and existing right. The conditions of service can be altered by a statute. Unless a vested right is taken away, the same would not offend even Article 14 of the Constitution. In State of A.P. v. McDowell, AIR 1996 SC 1627 , it was held: If an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the Clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. An enactment cannot be struck down by applying the principle of proportionality when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. The two rules stated above for striking down of enactments are however confined to an Act made by the Legislature. 20. Conditions of service can also be altered having regard to the existing right and the same will operate in relation to the existing employees. To the said extent, it will have a prospective operation. However, the inhibition against the retrospective construction is not a rigid rule and must vary secundum materiam. 21. In Carson v. Carson, (1964) 1 All.ER 681, it has been held: It is well recognised that the canon against retrospective interpretation does not apply to a statute dealing with adjective law, i.e., procedure, and I think that a statute abolishing old legal fictions is so nearly akin to a procedural statute that the canon can have little, if any, application. After all, the canon expresses no rigid or absolute rule. It rests on the presumption of common sense in a well ordered and civilised society; and that presumption does not seem germane to the root and branch view Parliament was obviously taking, when it passed this Act, of the historical interferences by lawyers with the natural rights of woman. Any how, the inhibition of the rule is a matter of degree, and must vary secundum materiam. 22. A person can be deputed from one service to another service although the Municipal Service may be a civil service which is distinct statutory service. Any how, the inhibition of the rule is a matter of degree, and must vary secundum materiam. 22. A person can be deputed from one service to another service although the Municipal Service may be a civil service which is distinct statutory service. A person can be appointed by direct recruitment or by transfer, but the question which arises for consideration is whether as to whether the posts which are reserved to be filled by way of promotion can be filled up by transfer from any other service. The answer to the said question in our opinion must be rendered in negative. 23. The Engineers working in the Municipality are paid by the Municipality and their salaries are not drawn from consolidated fund. In terms of State Service Rules, the constitution of A.P. Public Health and Municipal Engineering Service was constituted and the fourth and eighth vacancies of Deputy Executive Engineers were to be filled up in the following manner : Category Method of appointment 3. Dy. Executive Engineers The substantive vacancies of Deputy Executive Engineers shall be filled in the following order of rotation of every cycle of 12 vacancies: 1st vacancy xx xx xx 2nd vacancy xx xx xx 3rd vacancy xx xx xx 4th vacancy By direct recruitment from Municipal Asst. Engineers in the ratio of 2:1 between them. The direct recruitment should also cover the non-substantive vacancies of the category. 5th vacancy xx xx xx 6th vacancy xx xx xx 7th vacancy xx xx xx 8th vacancy By direct recruitment from Municipal Asst. Executive Engineers and Municipal Assistant Engineers in the ratio of 2:1 between them. The direct recruitment should also cover the non-substantive vacancies of the category. 9th vacancy xx xx xx 10th vacancy xx xx xx 11th vacancy xx xx xx 12th vacancy xx xx xx Provided that in the exigencies of service, the Government shall have the power to appoint by transfer from the Deputy Executive Engineers of Public Works Branch of the Andhra Pradesh Engineering Service or for the special reasons from any other service. 24. G.O. Ms. 24. G.O. Ms. No.595, Housing Municipal Administration and Urban Development (MA), dated 22-9-1997 contemplates constitution of the Andhra Pradesh Municipal Engineering Service Rules, which shall consist of Municipal Assistant Executive Engineers (Civil), Municipal Assistant Engineers (Civil), Municipal Assistant Engineers (Automobile/ Mechanical) and Municipal Assistant Engineers (Electrical) categories of officers in the Municipalities including the Municipal Corporation of Visakhapatnam and Vijayawada. Rule 3(a) provides for appointment of Municipal Assistant Executive Engineers by way of transfer and if qualified and suitable candidates for appointment by transfer are not available, appointment be made by direct recruitment. Rule 3(b) provides for appointment of Municipal Assistant Engineers by direct recruitment and by recruitment by transfers from among Draughtsman, Electrician, Public Works Maistries in any Municipality or Corporation. In terms of Rule 3-A, different units and areas were created. The said rules were issued after the issuance of the Presidential Order. The Presidential Order having regard to Article 371-D of the Constitution would redeemed to prevail over any rules made -coder the proviso to Article 309 of the constitution. 25. The President of India in exercise of his powers conferred under clause (1) of Article 371-D made A.P. Public Employment (Organisation of Local Cadres and Regulation of Recruitment) Order, 1975 in terms whereof the local cadres were organized. `Service' has been defined in the Andhra Pradesh State and Subordinate Service Rules, 1996 to mean: "Service means a post or a group of posts or categories of posts classified by the State Government as State or Subordinate Service, as the case may be: Provided that for the purpose of recruitment, probation and transfer, each class included in the Andhra Pradesh General Service and the Andhra Pradesh General Subordinate Service shall be regarded as a separate service". 26. Rule 33 of the State and Subordinate Service Rules deals with seniority and sub-rule (d) of Rule 33 reads thus: "The transfer of a person from one class or category of a service to another class or category of the same service carrying the same pay or scale of pay shall not be treated as first appointment to the latter class or category for purpose of seniority and the seniority of a person so transferred shall be determined with reference to the date of his regular appointment in the class or category from which he was transferred. Where any difficulty arises in applying this sub-rule, seniority shall be determined by the Government, if they are the appointing authority and in other cases, the authority next higher to the appointing authority shall determine the seniority". 27. G.O. Ms. No.15, dated 7-1-1997 which was issued pursuant to the representation made by the Public Health Engineering Association to unify the Engineering service in various organizations under the administrative control of the Municipal Administration and Urban Development Department and maintain a common cadre strength for purposes of seniority and promotions to the higher posts. Paragraph-5 of the said GO reads thus:- Now therefore on careful examination of the proposals of the Engineer-in-Chief (Public Health) for merger of two services the Government accept to unify the services of Assistant Engineers/Assistant Executive Engineers of Municipal Engineers and Public Health Engineering in each zone for the purpose of maintaining a common seniority list for promotion to the post of Deputy Executive Engineer deleting the rule of reservation being adopted in the second occasion while promoting the personnel belonging to Municipal Engineering Services to the cadre of Deputy Executive Engineer without resorting to the provincialization of the services of Municipal Engineering Services to provide equal promotional avenues in all the zones. 28. By reason of G.O. Ms. No.202 dated 14-8-1997, amendment was made to Rule 3 in relation to Deputy Executive Engineer category and relevant portion whereof reads thus: Category Method of appointment 3. Dy. Executive Engineers. The vacancies of Deputy Executive Engineers shall be filled in the following order of rotation of every cycle of 12 vacancies: 1st vacancy Xx xx xx 2nd vacancy Xx xx xx 3rd vacancy Xx xx xx 4th vacancy By promotion from Municipal Asst. Engineers of the Andhra Pradesh Municipal Engineering Service or Asst. Engineer (Public Health) by transfer from the Andhra Pradesh Public Health and Municipal Engineering Subordinate Service. 5th vacancy Xx xx xx 6th vacancy Xx xx xx 7th vacancy Xx xx xx 8th vacancy By promotion from the Municipal Asst. Executive Engineer of the Andhra Municipal Engineering Service or the Assistant (Public Health) of the Andhra Pradesh Public Health and Municipal Engineering Subordinate Service. 9th vacancy Xx xx xx 10th vacancy Xx xx xx 11th vacancy Xx xx xx 12th vacancy Xx xx xx 29. G.O. Ms. No.202, dated 14-8-1997 does not refer to the Presidential Order. Executive Engineer of the Andhra Municipal Engineering Service or the Assistant (Public Health) of the Andhra Pradesh Public Health and Municipal Engineering Subordinate Service. 9th vacancy Xx xx xx 10th vacancy Xx xx xx 11th vacancy Xx xx xx 12th vacancy Xx xx xx 29. G.O. Ms. No.202, dated 14-8-1997 does not refer to the Presidential Order. By reason thereof, the fourth and eighth vacancies were to be filled up by way of promotion from the Municipal Assistant Engineer of the A.P. Municipal Engineering Service or Assistant Engineer (Public Health) by transfer from the A.P. Public Health and Municipal Engineering Subordinate Service. The said rule to the extent providing for filling up the vacancy reserved for promotion by transfer in our opinion is violative of paragraph 5 of the Presidential Order as also contrary to the well known principles of service jurisprudence. 30. Paragraphs 3 and 5 of the Presidential Order must be read together in harmony and the principles of harmonious construction are required to be applied. Any rule made by the Governor in terms of proviso appended to Article 309 of the Constitution of India cannot supersede the provisions of Presidential Order having regard to the provisions contained in Article 371-D of the Constitution of India. 31. Once it is held that paragraph-5 of the Presidential Order would be applicable in relation to Municipal Engineering Services, it must be held that no other person can be brought in except by way of direct recruitment. 32. In the decision in A. Suryanarayana Rao (supra), the Apex Court clearly held : In the result we hold that all promotions of Junior Engineers (re-designated as Assistant Executive Engineers) to the next higher post of Assistant Engineers (re-designated as Deputy Executive Engineers) have to be made on the basis of the zonal seniority lists as indicated above and not on the basis of the Statewide seniority list of Junior Engineers. The promotions made after the Presidential Order dated 18-11-1975 should be treated as provisional and the Government is permitted to review these promotions on the basis of zonal seniority lists and readjust the same. All the future promotions from the post of Junior Engineer to the post of Assistant Engineer should necessarily be made on the basis of the zonal seniority lists. All the future promotions from the post of Junior Engineer to the post of Assistant Engineer should necessarily be made on the basis of the zonal seniority lists. For the purpose of promotion to the post of Executive Engineer, which is not a zonal post, a Statewide seniority list of the Assistant Engineers of all zones should be prepared and such Statewide seniority list should form the basis of promotion to the post of Executive Engineer. 33. Mr. Surender Rao submitted that appointment or recruitment by transfer is defined under Rule 2(v) of the State and Subordinate Service Rules. The said definition of appointment or recruitment by transfer in our opinion cannot be applied in a case where the post is to be filled up by way of promotion in relation whereto sub-rule (2) thereof shall apply. By the very fact that appointment by transfer and by promotion had been defined separately, the intention of the rule making authority becomes clear that the post which is to be filled up by promotion cannot be filled up by way of transfer. If such contention is accepted, the very purpose for which the promotional avenues are created would be non-est. Furthermore, by reason of the amended rule, an absolute, unguided, unbridled and naked power has been conferred upon the Chief Engineer. He in his discretion can fill up a post either by way of promotion or by way of transfer from a different service. Such naked power is clearly contrary to the concept of equity clause adumbrated in Article 14 of the Constitution. 34. In the decision in V. Sadanandam (supra) the question which fell for consideration is as to whether Rule 3 of the A.P. Treasuries and Accounts Subordinate Service Rules was ultra vires of the Presidential Order. A Full Bench of the Tribunal held that the same is violative of para 5 of the Presidential Order. In that case, the amendment had been brought by the Government in exercise of its powers under Paragraph 5(2) of the Presidential Order. In the instant case, the amendment has not been effectuated by the Presidential Order. 35. In the decision in B. Satyanarayana Rao (supra), the question that fell for consideration as regards the validity of Rule 3(a) of A.P. Transport Service Rules framed under Article 309 of the Constitution of India. In the instant case, the amendment has not been effectuated by the Presidential Order. 35. In the decision in B. Satyanarayana Rao (supra), the question that fell for consideration as regards the validity of Rule 3(a) of A.P. Transport Service Rules framed under Article 309 of the Constitution of India. Thereupon, the Regional Transport Officers could be appointed by direct recruitment and recruitment by transfer from certain category of posts. 36. A contention has been raised to the effect that the decision in Sadanandam (supra) were per incuriam on the ground that the Presidential Order does not permit the recruitment by transfer. Unfortunately, the attention of the Court was not drawn to the fact that in Sadanandam (supra), the State exercised its jurisdiction under para 5(2) of the Presidential Order. In any event, the present case poses a different question viz., whether the posts earmarked for promotion can be filled up by way of appointment by transfer. The said question did not fall for consideration before the Apex Court either in Sadanandam (supra) or Satyanarayana Rao (supra). 37. For the reasons aforementioned, we are of the opinion that the impugned GO cannot be sustained and it is set aside accordingly. The writ petition is allowed. No costs.