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2025 DIGILAW 1014 (AP)

K. Raja Gopal v. State of Andhra Pradesh

2025-08-21

NYAPATHY VIJAY

body2025
ORDER : 1. The present writ petition is filed to declare the action of the Respondents in not filling up the first vacancy in the cadre of "Section Officer" in A.P. Secretariat from the cadre of Superintendent working in the Head of Departments as illegal, arbitrary and contrary to Note-5, Rule 3 of A.P. Secretariat Service Rules, 1998 and for consequential directions. 2. The facts leading to the filing of the writ petition are as under: The Petitioner No.1 was initially appointed as Typist (R&B) in the Office of Engineer-in-Chief (R&B), Errumanzil, Hyderabad and subsequently was promoted as Senior Assistant (R&B) in the year 2009 and further promoted as Superintendent (R&B) on 01.07.2020. Petitioner No.2 was initially appointed as Attender and subsequently promoted as Typist, Senior Assistant and thereafter as Superintendent on 01.06.2021. The grievance of the Petitioners is that Rule 2 of A.P. Secretariat Service Rules, 1998 (for short "the Rules") as amended by G.O.Ms.No.33 GA (Ser-B) Department dated 19.01.2010, the Section Officer Post was constituted as Category 7(c) under Class-B. 3. As per Note-5 of Rule 3 of the Rules, the first vacancy of Section Officer (excluding the leave vacancies) out of every eight (8) successive vacancies constituting a Single Unit and counted for being filled up by appointing Superintendents working in the Offices of Heads of Departments/Directorates under Administrative control of the Departments of Secretariat constituting a Single Unit by transfer known as 12½ % quota in S.O cadre and the remaining seven (7) vacancies to be counted for being filled up by promotion of Assistant Section Officers, Special Categories Stenographers. 4. Though the post earmarked for Section Officers under 12½ % quota was sought to be filled up by the Respondent-State, the same was said to be held up on account of representations given not to consider the appointments under 12½ % quota by A.P.Secretariat Association and it was on that ground, the 12½ % quota of Section Officers meant for Superintendents working in Offices of Head of the Departments/Directorates was put on hold. Hence, the writ petition is filed. 5. In the counter affidavit filed on behalf of Respondents, the Rule position as mentioned in the written affidavit and the eligibility of the Petitioners for being considered to the post of Section Officer is not under dispute. It is stated that the Hon'ble Supreme Court in judgment dated 07.11.2001 in Civil Appeal Nos. Hence, the writ petition is filed. 5. In the counter affidavit filed on behalf of Respondents, the Rule position as mentioned in the written affidavit and the eligibility of the Petitioners for being considered to the post of Section Officer is not under dispute. It is stated that the Hon'ble Supreme Court in judgment dated 07.11.2001 in Civil Appeal Nos. 9643 and 9644 of 1995 had held that employees working in the posts, which are not localized cannot be appointed by transfer to the posts which were organized in the local cadres and that such appointments are against the provisions of the Presidential Order. On the basis of the said judgment, the General Administration (SPF.A) Department had issued a circular U.O. Note No.44232-B/SPF-A/2002 dated 15.02.2003 requested all the Department of Secretariat and Heads of Departments to stop the appointment by transfer of Section Officers/Assistant Section Officers, Superintendents etc., working in the Secretariat and Heads of Departments Offices to the Executive Cadre Posts localized under Presidential Order in the Districts, till further orders. In view of the circular, representations of the Petitioners and similarly situated persons were kept in abeyance. 6. Sri M.Vijay Kumar, learned Senior Counsel appearing for the Petitioners would submit that as long as the Rules are in vogue, it is not open to the Respondents to fill up the vacancies on the basis of executive instructions. Learned Senior Counsel would further submit that the reliance on the judgment of the Hon'ble Supreme Court is wholly misplaced as the said judgment has no relevance for the present cadres as they were being appointed by transfer from HoD's/Directories. Learned Senior Counsel would further contend that the Presidential Order has no application to the HoD's/Directorates and therefore, the appointment by transfer to Secretariat would not affect the promotional avenues. 7. Learned Assistant Government Pleader Sri S.Raju would submit that a policy decision was taken by the Government not to fill up the vacancies in the interest of the administration and therefore, the case of the Petitioners cannot be considered. 8. Reasoning: The post in question in this case is of a ‘Section Officer’ and the Rules governing appointment to the said post are mentioned in A.P.Secretariat Service Rules, 1999. 8. Reasoning: The post in question in this case is of a ‘Section Officer’ and the Rules governing appointment to the said post are mentioned in A.P.Secretariat Service Rules, 1999. The Class-B Category 7(c) of the Rules refers to the post of Section Officer in all Departments of Secretariat including Section Officer, Governor's Secretariat other than Law, Finance and Planning (Finance) Departments. The same reads as under: “ Category (7) (c) Section Officer in all Departments of Secretariat including Section Officer, Governor’s Secretariat other than Law, Finance and Planning (Finance) Departments. 9. The method of appointment to these posts is specified in Rule 3 and the same reads as under: "Section Officer(c) Section Officers in all Departments of Secretariat other than Law and Finance and Planning (Finance) Departments. (i) By appointment by transfer of Assistant Section Officers in Single Unit in the Departments of Secretariat other than Law Department, Finance and Planning (Finance) Departments. (ii) By appointment by transfer of Special category Stenographers appointed as such prior to 08.03.1984 and who have e(i) By appointment by transfer of Assistant Section Officers in Singe Unit in the Departments of Secretariat other than Law Department, Finance and Planning (Finance) Departments. (iii) By appointment by transfer of Superintendents in the Andhra Pradesh Ministerial Service working in the Offices of Heads of Departments and Directors, other than those under the administrative control of Law Department and Finance and Planning (Finance) Department.” 10. As per the above Rule, one of the modes of appointment to the post of Section Officer is by appointment by transfer from the cadre of Superintendents in A.P.Ministerial Service working in the Offices of HoD/Directorates. The Note-5 to Rule 3 is specific with reference to Section Officers. As per the above Rule, one of the modes of appointment to the post of Section Officer is by appointment by transfer from the cadre of Superintendents in A.P.Ministerial Service working in the Offices of HoD/Directorates. The Note-5 to Rule 3 is specific with reference to Section Officers. The Note-5 prescribes the quota for the Superintendents in HoDs and Directorates and Note-5 reads as under: Note (5): Appointment to the posts of Section Officers:- Subject to Note (2) above, out of every eight successive vacancies, excluding leave vacancies in the posts of Section Officers in all departments of Secretariat constituting a Single Unit and in the units of the Law Department and Finance and Planning (Finance) Department, the first vacancy shall be counted for being filled by appointment by transfer of a Superintendent from the Offices of Heads of Departments/Directorates under the administrative control of the Departments of Secretariat constituting the Single Unit/Law Department/Finance and Planning (Finance) Department/High Court as the case may be as per the methods of appointment in the tabular statement above and the remaining seven vacancies shall be counted for being filled by transfer of Assistant Section Officers, Special Category Stenographers appointed as Special Category Steno prior to the 8th March, 1984 and who had exercised option of clerical line. If any person appointed by transfer suffers reversion, he shall be reverted to his parent office or department. 11. A reading of the above makes it apparent that Superintendents working in HoDs and Directorates should be considered for appointment in the first vacancy out of every eight successive vacancies. This method of appointment could not be deferred on the basis of executive instructions more so, when the post of Assistant Section Officer was being filled up from the equivalent cadre working in HoD/Directorate. There is a string of judgements to the effect that executive instructions cannot override the statutory provisions. The Hon'ble Supreme Court in Indian Ex-Servicemen Movement v. Union of India , (2022) 7 SCC 323 , also considered similar aspect and held at paragraph 34 as follows: “34. A hierarchy in law exists between statutes and rules — a statutory provision will have precedence over delegated legislation if the latter conflicts with the former. Similarly, executive instructions cannot override a statute or rules made in pursuance of a statute.” 12. A hierarchy in law exists between statutes and rules — a statutory provision will have precedence over delegated legislation if the latter conflicts with the former. Similarly, executive instructions cannot override a statute or rules made in pursuance of a statute.” 12. Secondly, the judgment of the Hon'ble Supreme Court referred in the counter affidavit of the Respondents was reported as V. Jagannadha Rao and others v. State of A.P. and others , (2001) 10 SCC 401 . The issue in the said case was with regard to legality of “appointment by transfer” in the zones though the Rule 5(2) (b) of A.P.Presidential Order, 1975 refers only to “transfer”. It was in that context that the enabling Rule giving promotion by appointment by transfer under the guise of transfer was held to be bad. The said Judgement is not of relevance to the facts of this case as the A.P.Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order,1975 is not applicable to the Secretariat posts. 13. Thirdly, the Note-5 to Rule 3 of the Rules mentions that the first vacancy shall be counted for being filled by appointment by transfer of a Superintendent from the Offices of Heads of Departments/Directorates under the administrative control of the Departments of Secretariat constituting a Single Unit/Law Department/Finance and Planning (Finance) Department/High Court as the case may be as per the methods of appointment. As long as the Rule stands, the posts are specifically meant for Petitioners and persons similarly situated and it is not open to the Respondent No.1 to fill up the vacancy through any other person. 14. The Hon'ble Supreme Court in V.B. Badami v. State of Mysore , (1976) 2 SCC 901 , held that neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. Similarly, the vacancies earmarked for Petitioners and persons similarly situated cannot be filled up by any other source. Though in this case, appointment by transfer is the mode of appointment for three streams, the principle is that the quotas fixed cannot be altered. The relevant portions of the Judgements are extracted below: 34. Similarly, the vacancies earmarked for Petitioners and persons similarly situated cannot be filled up by any other source. Though in this case, appointment by transfer is the mode of appointment for three streams, the principle is that the quotas fixed cannot be altered. The relevant portions of the Judgements are extracted below: 34. The important principle is that as long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. The result is that direct recruitment vacancies between September 11, 1959 and October 26, 1964 cannot be occupied by any promotees. The fact that direct recruits were confirmed on October 26, 1964 will not rob the direct recruits of their quota which remained unfilled from December 2, 1957. 35. The Government confirmed the direct recruits and the appellants by adjustment of vacancies within their respective quota and determined their seniority in accordance with Rule 2(b) of the Seniority Rules. Seniority is based on confirmation as full member of the service in the substantive vacancy. 36. In S.G. Jaisinghani v. Union of India it was said that when the quota was fixed for the two sources of recruitment the quota could not be altered according to exigencies of the situation. It was held there that the promotees who had been promoted in excess of the prescribed quota should be held to have been illegally promoted. In Bishan Sarup case it was held that when it was ascertained that not more than 1/3 of the vacancies were to go to the promotees and the rest to the direct recruits, the ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. The promotees were entitled to 1/3 of the vacancies in any particular year, whether or not there was direct recruitment by competitive examination in that year. 37. Two principles are established in the decisions referred to. One is that quotas which are fixed are unalterable according to exigencies of situation . Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. 37. Two principles are established in the decisions referred to. One is that quotas which are fixed are unalterable according to exigencies of situation . Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. The other is that one group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or on the ground that because there has been a number in excess of quota the same should be absorbed depriving the other group of quota. 15. Fourthly, the Respondent had issued notification dated 22.12.2022 for filling up the posts of Assistant Section Officers in the A.P. Secretariat. The above notification was issued for filling up the posts by appointment by transfer under the very same A.P.Secretariat Service Rules and this Court stumbled upon this fact while considering a claim for appointment to the said post in W.P.Nos.10546 and 10103 of 2023. It is quite apparent that the Respondent is taking contradictory stands for filling up the posts of Section Officers and Assistant Section Officers under the Rules. 16. For the aforesaid said reasons, this Court does not find any merit in the contentions of the Respondents and the Writ Petition is disposed of with following directions: a) The Respondents shall consider the case of Petitioners and persons similarly situated for appointment by transfer to the post of “Section Officer” governed by A.P. Secretariat Service Rules,1999 strictly in terms of Note-5 to Rule 3 thereof as highlighted above forthwith. b) The above exercise shall be undertaken by the Respondents as expeditiously as possible. c) No order as to costs. As a sequel, pending applications, if any, shall stand closed.