96

ANDHRA PRADESH ADMINISTRATIVE TRIBUNAL AT HYDERABAD

MONDAY THE 23RD DAY OF APRIL TWO THOUSAND AND TWELVE

HONBLE SRI. JUSTICE DR.G.YETHIRAJULU, CHAIRMANHONBLE SRI. SUDHENDER KULKARNI, MEMBER (JUDL.)AND HONBLE SRI. DEEPAK KUMAR PANWAR, MEMBER (ADMN.)

O.A.NO.3784/2007 AND BATCH

Between :

B. Mangaiah and Others

Vs.

The Government of Andhra Pradesh,Rep., by its Principal Secretary, Home Department, Secretariat, Hyderabad.And Others

----o----

(ORDER AS PER HONBLE SRI SUDHENDER KULKARNI, JUDICIAL MEMBER ON BEHALF OF THE FULL BENCH)---o---

The applicants in these OAs have assailed the legality and propriety of the orders passed in pursuance to GO.Ms.No.610, dt.30.12.85, by invoking the provisions of para-5(2)(c) of the Presidential Order. As a large number of applications have been filed, the matter is placed before the Full Bench, as per rules. That is how, the matters were heard and are being disposed of by the Full Bench.

2.These OAs are filed aggrieved by the orders passed by the Government contained in GO.Ms.No.610 dt.30.12.1985 and GO.Ms.No.674 dt.7.9.2007. In furtherance of the said GOs, various departments of the State have issued orders repatriating non-locals to their respective cadres (zones). The applicants are functioning in various capacities under the jurisdiction and control of various departments of the State in as much as 20,000 employees were transferred in furtherance of Go.Ms.No.610 dt.30.12.1985 and Go.Ms.No.674 dt.7.9.2007. The applicants have filed these OAs contesting the repatriation orders.

3.The genesis for issuing G.O.Ms.No.610 GAD dt.30.12.1985 is the representation of Telangana Non-Gazetted Officers Union, wherein it was represented that certain allotments have been made in violation of the provisions of the Presidential Order. In order to rectify the violations, Government issued Go.Ms.No.674 GAD dt.7.9.2007. Thereafter, respective departments have issued various GOs repatriating the persons who were appointed in excess of their quota.

4.It would be appropriate to trace out the history behind issuance of these impugned orders and the history has been succinctly traced out by the Division Bench of the Honble High Court in the matter of GOVERNMENT OF ANDHRA PRADESH, REP. BY SECRETARY, SCHOOL EDUCATION DEPARTMENT vs. P.VEMA REDDY reported in 2007 (4) ALD 209, which reads as follows:....in brief, prefatory observations on the scope and purport of Article 371-D and the Presidential Order made thereunder.ARTICLE 371-D CIRCUMSTANCES WHICH NECESSITATED ITS INTRODUCTION:(7) State action be it by legislation, plenary or subordinate, or by an executive order, which denies citizens equal opportunity and access to public employment on the ground only of place of birth or residence, would be invalid qua the provisions of Article 16(2) of the Constitution of India. Article 16(3) of the Constitution, which makes an exception to the limitations under Article 16(2), is confined to enabling Parliament to prescribe the qualification of residence in the State as a whole, and not to any part thereof. No legislation is permissible even by Parliament making the requirement of residence in a part of the State for employment or appointment to a public office in that State. (A.V.S. Narasimha Rao Vs. State of A.P. [AIR 1970 SC 422], Ch. Raji Reddy Vs. A.P.S.R.T.C. rep. by its Regional Manager, Bhagyanagar Region [2003 (4) ALT 36].

(8) It is with a view to enable prescription of residence in a part of the State for employment or appointment to posts, and in matters of admissions in Universities or other educational institutions, that the Constitution, under Article 371-D, has made special provisions with respect to the State of Andhra Pradesh. It is necessary, in this context, to refer in brief to the events which led to the introduction of Article 371-D by the 32nd amendment to the Constitution.

(9) The former State of Hyderabad comprised of three linguistic areas: Telengana, Marathwada and Karnatak. In 1919, the Nizam issued a Firman promulgating the Mulki Rules. The Nizam confirmed these Rules by another Firman issued in 1949. Those Rules provided, inter alia, 15 years residence in the State as an essential qualification for public employment. In 1955 the Rajpramukh, in exercise of his powers under the proviso to Article 309 of the Constitution, framed the Hyderabad General Recruitment Rules, 1955 in supersession of all previous rules on the subject. These rules prescribed a domicile certificate for appointment to a state or subordinate service, and the issue of such certificate depended upon residence in the State for a period of not less than 15 years.

(10) On November 1, 1956, on the States Reorganisation Act coming into force, the State of Hyderabad was trifurcated. The Telengana region became a part of the newly formed State of Andhra Pradesh, while Marathwada and Karnatak regions ultimately became parts of Maharashtra and Mysore (presently Karnataka) States. The State of Andhra Pradesh was constituted of portions of the territories drawn from the erstwhile States of Andhra and Hyderabad.

(11) Soon after formation of the State of Andhra Pradesh, Parliament enacted the Public Employment (Requirement as to Residence) Act, 1957 making special provision for requirement as to residence for public employment and brought it into force with effect from March 21, 1957. The constitutional validity of this Act was challenged by persons employed in the ministerial services of the Govt. of Andhra Pradesh in A.V.S. Narasimha Rao2and the Supreme Court held Section 3 of the Act, insofar as it related to the Telangana area, ultra vires Article 16 of the Constitution.

(12) Meanwhile, there were two widespread agitations, one in the Telangana area and the other in the Andhra region of the State between 1969 and 1972, creating political turmoil and virtually paralysing State administration. The political leaders of the State, considerably exercised over this situation, made concerted efforts to find an enduring solution to this problem. On September 21, 1973 a Six-Point Formula was evolved by the political leaders to provide for a uniform approach for promoting accelerated development of the backward areas of the State so as to secure balanced development of the State as a whole and to provide equitable opportunities to different areas of the State in matters of education and employment in public services. Point No.3, 4 and 5 thereof read as under:-(3). Subject to the requirements of the State as a whole, local candidates should be given preference to specified extent in the matter of direct recruitment to (i) non-gazeted posts (other than in the Secretariat. Offices of Heads of Department, other State level officers and institutions and the Hyderabad City Police) (ii) corresponding posts under the local bodies and (iii) the posts of Tahsildars, Junior Engineers and Civil Assistant Surgeons. In order to improve their promotion prospects, service cadres should be organized to the extent possible on appropriate local basis upto specified gazetted level, first or second, as may be administratively convenient.(4). A high power administrative tribunal should be constituted to deal with the grievances of services regarding appointments, seniority, promotion and other allied matters. The decisions of the Tribunal should ordinarily be binding on the State Government. The constitution of such a tribunal would justify limits on recourse to judiciary in such matters.(5). In order that implementation of measures based on the above principles does not give rise to litigation and consequent uncertainity, the Constitution should be suitably amended to the extent necessary conferring on the President enabling powers in this behalf.

(13) Implementation of this Six-Point Formula envisaged, inter alia, amendment of the Constitution conferring power on the President of India in order to secure smooth implementation of the measures based upon the Six-Point Formula without giving rise to litigation and consequent uncertainty. It was in pursuance of this requirement of giving effect to the six point formula that Article 371-D was introduced in the Constitution by the Constitution (Thirty-second Amendment) Act, 1973 which came into force with effect from July 1, 1974. (14) The Statement of Objects and Reasons for the Constitution (32nd Amendment) Act, 1972, reads thus:-

When the State of Andhra Pradesh was formed in 1956, certain safeguards were envisaged for the Telengana area in the matter of development and also in the matter of employment opportunities and educational facilities for the residents of that area. The provisions of clause (1) of Article 371 of the Constitution were intended to give effect to certain features of these safeguards. The Public Employment (Requirement as to Residence) Act, 1957, was enacted inter alia to provide for employment opportunities for residents of Telengana area. But in 1969 [in the case of A.V. S.N. Rao v. Andhra Pradesh, (1969) 1 SCC 839: (1970) 1 SCR 115], the Supreme Court held the relevant provision of the Act to be unconstitutional insofar as it related to the safeguards envisaged for the Telengana area. Owing to a variety of causes, the working of the safeguards gave rise to a certain amount of dissatisfaction sometimes in the Telengana area and sometimes in the other areas of the State. Measures were devised from time to time to resolve the problems. Recently several leaders of Andhra Pradesh made a concerted effort to analyse the factors which have been giving rise to the dissatisfaction and find enduring answers to the problems with a view to achieving fuller emotional integration of the people of Andhra Pradesh. On September 21, 1973, they suggested certain measures (generally known as the Six-Point Formula) indicating a uniform approach for promoting accelerated development of the backward areas of State so as to secure the balanced development of State as a whole and for providing equitable opportunities to different areas of State in the matter of education, employment and career prospects in public services. This formula has received wide support in Andhra Pradesh and has been endorsed by the State Government.2. This Bill has been brought forward to provide the necessary constitutional authority for giving effect to the Six-Point Formula insofar as it relates to the provision of equitable opportunities for people of different areas of the State in the matter of admission to educational institutions and public employment and constitution of an Administrative Tribunal with jurisdiction to deal with certain disputes and grievances relating to public services, The Bill also seeks to empower Parliament to legislate for establishing a Central University in the State and contains provisions of an incidental and consequential nature including the provision for the validation of certain appointments made in the past. As the Six-Point Formula provides for the discontinuance of the Regional Committee constituted under clause (1) of Article 371 of the Constitution, the Bill also provides for the repeal of that clause.

ARTICLE 371-D: ITS SCOPE:

(15) The primary purpose of introducing Article 371-D was twofold: (i) To promote accelerated development of the backward areas of the State of Andhra Pradesh so as to secure balanced development of the State as a whole, and (ii) to provide equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public service. To achieve this primary object, clause (1) of Article 371-D empowers the President to provide, by order, for equitable opportunities and facilities for the people belonging to different parts of the State in the matter of public employment and in the matter of education. Clause (2) is complementary to clause (1) and particularizes matters for which an order, made under clause (1), may provide. Sub-clause (c)(i) thereof enables the President to specify in his Order, the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made in the matter of direct recruitment to posts in any local cadre under the State Government or any cadre under any local authority. Sub-clause (c) further makes it clear that residence for a specified period in the local area, can be made a condition for recruitment to any such cadre. (Chief Justice of A.P. Vs. L.V.A. Dixitulu [1979 (2) SCC 34]; P. Sambamurthy Vs. State of A.P. [AIR 1987 SC 663].

(16) Article 371-D is a special provision which makes a departure from the general scheme of the Constitution. (Govt. of A.P. Vs. A. Suryanarayana Rao [1991 (6) SLR 56 (SC)]. The area of departure cannot, therefore, extend beyond what is unmistakably and specifically delineated by the words employed therein or in the Presidential Order made thereunder. Article 371-D, in effect, enables the President to make an order enabling prescription of residence in a part of the State for employment or appointment to a public office in that State. Clause (10) of Article 371-D gives overriding effect, both to the provisions of Article 371-D and an order made by the President thereunder, over other provisions of the Constitution and any other law in force. Thus, prescription of residence in a part of the State of Andhra Pradesh is permissible, notwithstanding the prohibition under Article 16(2), provided such a prescription has been made under Article 371-D or the Presidential Order made thereunder. It is also necessary to note that the scheme of Article 371-D was held to be valid, intra vires the amending power of Parliament and as not to militate against the basic structure of the Constitution. (Dr. C. Surekha Vs. Union of India [AIR 1989 SC 44]; Fazal Gafoor Vs. Union of India [AIR 1989 SC 48]; B. Ramesh Vs. University of Health Sciences [1990 (2) alt 567]; and Devarakonda Rajesh Babu Vs. NIMS [1997 (6) ALT 290 (FB)]. The provisions of Article 371-D and the Presidential Order are insulated from any attack or challenge based on any other provision of the Constitution or any other law for the time being in force. It is also not open to challenge on the ground of violation of Part III or any other provision of the Constitution, (Dr. B. Sudhakar Vs. Union of India [AIR 1995 AP 86 (FB)], Dr. Fazal Ghafoor Vs. The Principal, Osmania Medical College, Hyderabad [1988 (2) ALT 227], since the Presidential Order has been given overriding effect. PRESIDENTIAL ORDER: SCOPE AND EXTENT OF THE POWER OF THE STATE GOVERNMENT THEREUNDER:

(17) In exercise of the powers conferred by clauses (1) and (2) of Article 371-D of the Constitution the President made, with respect to the State of Andhra Pradesh, the A.P. Public Employment (Organization of Local Cadre and Regulation of Direct Recruitment) Order, 1975, (hereinafter referred to as the Presidential Order), which was notified in G.S.R. 524(E) and came into force on 18.10.1975. Para 2(d) of the Presidential Order defines a local authority as not include any local authority which is not subject to the control of the State Government. Para 2(e) defines local cadre to mean any local cadre of posts under the State Government organized in pursuance of paragraph 3, or constituted otherwise for any part of the State. Under Para 2(2), the General Clauses Act, 1897 applies for the interpretation of the Presidential order as it applies for the interpretation of a Central Act. Para 3 relates to organization of local cadres and, under sub-para (1) thereof, the State Government was hitherto required, within a period of twelve months from the commencement of the Order, to organize classes of posts in the civil services and classes of civil posts under the State into different local cadres for different parts of the State to the extent and in the manner hereinafter provided. The period of twelve months prescribed in Para 3(1) was enhanced to eighteen months vide G.O.Ms. No. 794 dated 12.11.1976 and twenty seven months vide G.O.Ms. No. 728 dated 27.10.1977. The period of twenty seven months prescribed in Para 3(1), for organizing different local cadres for different parts of the State, expired on 17.01.1978 and thereafter the State Government no longer had the power to organize different local cadres for different parts of the State. With a view to enable organization thereafter, of different local cadres for different parts of the State, a proviso was inserted to Para 3(1), as notified in G.O.Ms. No. 34 dated 24.01.1981, which enables the President, notwithstanding the expiration of the period specified in Para 3(1), to make an order, whenever he considers it expedient to do so, requiring the State Government to organize any 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.

(18) While Para 3(1) ordained the State Government to organize classes of posts in the civil services of the State, and classes of civil posts under the State, into different local cadres for different parts of the State, the extent to which, and the manner in which, such classes of posts were required to be so organized was, specifically prescribed, to be as provided thereafter in the Presidential Order. Thus, not all classes of posts in the civil services of the State, and not all classes of civil posts under the State, were required to be organized into local cadres, and it was only to the extent provided for in the Presidential Order itself was the State Government required to so organize them into local cadres. Even under the proviso to Para 3(1), it is only to the extent the President considers it expedient that he may make an order requiring the State Government to organize any classes of posts in the civil services of the State, and classes of civil posts under the State, to be organized into different local cadres for different parts of the State.

(19) The object of organizing different local cadres for different parts of the State is clear from Paragraphs 4 and 5 of the Presidential Order. Under Para 4(1) persons holding posts, required to be organized into local cadres,were to be allotted to such cadres by the State Government in accordance with the principle and procedure specified in the Presidential Order. Under Para 5(1) each part of the State, for which a local cadre has been organized in respect of any categories of posts, shall be a separate unit for purposes of recruitment, appointment, seniority, promotion, transfer etc. Once a local cadre was organized under Para 3(1) each part of the State, for which such a local cadre was organized, was required to be treated as a separate unit and it is only from amongst persons allotted thereto was promotions to be effected and their seniority determined. In view of Para 5(1), a local cadre is a distinct and separate unit and, for matters prescribed therein, persons who do not belong to the said local cadre or those who belong to other local cadres cannot form part thereof. It is for this reason that, both in S. Prakasha Rao Vs. Commissioner of Commercial Taxes [AIR 1990 SC 997] and in M. Kesavulu1, the Supreme Court and the Division Bench of this Court held that a local cadre, once organized, cannot be meddled with.

(20) On an analysis of the provisions of the Presidential Order, it is clear that, having regard to historical compulsions which led to the introduction of Art. 371-D, the Presidential Order provides the framework for intra-state compartmentalization of certain posts under the rubric of local cadres, constituted for parts of the State, and protects the service conditions of members allotted or recruited to such local cadres. Local cadres are thus the result of historical compulsions engendered by economic and other differentia operating between parts of the State of Andhra Pradesh and of the felt grievances of residents of such parts of the State. It is well to remember the historical compulsions which led to the making of the Presidential Order, which is buttressed by the overriding effect given to the provisions of the Presidential Order not only against the exercise of majoritarian political and executive choices of the State, but is also made operative against any other provision of the Constitution of India (Article 371-D).

5.The contentions of learned counsel for the applicants Sri.M.Surender Rao, Sri R.V. Mallikarjuna Rao, M.Ram Gopal Rao, Seena Kumar, K.Narayana and P.Veerabhadra Reddys are:

(a) GO.Ms.No.610 dt.30.12.85 is contrary to Sub-Para-4, 5 and 6 of Paragraph-4 of the Presidential Order. According to Paragraph-3, the posts have been organized as district cadre, zonal cadre and accordingly allotment is made under paragraph-4 of the Presidential Order. The impugned GO.Ms.No.610 dt.30.12.85 intended to review allotments of persons holding the posts as on the date of issuance of the Presidential Order i.e., 18.10.75. Further, the impugned GO is not in operation now since the last date for revision of appointments is 30.6.86 which is over 20 years back. Therefore, review of appointments made after issuance of the Presidential Order is contrary to the provisions of Paragraph-4 and Paragraph-13 of the Presidential Order and the ambit and scope of the impugned GO cannot be enlarged to override the provisions of the Presidential order itself. Further, under Paragraph-13 of the Presidential Order, the State has a limited power. The impugned GO meddles with organized cadres under the Presidential order which is not permissible and the impugned GO is violative of the Presidential Order.

(b) Telangana and other Service Associations have no locus to complain violation of the Presidential Order. The Government lacks power and jurisdiction to entertain any representation from the Service Associations. Therefore, G.O.Ms.No.610, dt.30.12.85, has to be set aside.

(c) The State cannot make inroads into Article 371(d) of the Constitution of India wherein Sub-Clause-10 of the Article has an overriding effect. President alone is empowered to make any amendments to the Presidential Order.

(d) According to the Presidential Order, the appointments within the meaning of local cadres can be categorized as : 1) persons who were appointed before issuance of the Presidential Order i.e., 18.10.75 2) persons appointed between 18.10.75 and upto organization of certain posts into local cadres and 3) persons who are appointed after organization of local cadres. Para-4 of the Presidential Order deals with the persons who were appointed before the issuance of the Presidential Order and how to allot the existing persons holding posts required to be organized into local cadres. Sub-Para-4 of Para-4 of the Presidential Order says that any person aggrieved by an order allotting him to any local cadre may submit a representation to the State Government within a period of 60 days from the date of communication of the order. According to Para-4(5) of the Presidential Order, State Government shall on receipt of such representation and after consultation with appropriate Committee constituted under Sub-Para-3 make such order as it deems fit. It was provided therein that whenever such order is likely to result in the change of allotment of any other person, no such order shall be made without giving any opportunity to other person to make a representation. According to this para, there is no provision in the Presidential Order to review the appointments made before the Presidential Order. Therefore, the impugned action of reviewing the appointments is not in accordance with para-4 of the Presidential Order.

(e) According to Paragraph-13 of the Presidential Order, appointment or promotion made after the commencement of the Presidential Order or order made in pursuance of the provisions to Para-3 as the case may be, and before any local cadre is organized under the provisions, this order or any order made in pursuance with the provisions to Para-3, to any post which is required to be included in such cadre shall be provisional and shall, within a period of 12 months, of such organization be reviewed and adjusted in accordance with the provisions of the order. Therefore, as no review was made to the appointments made between the periods within the stipulated period of 12 months, no such review can be taken up at this distance of time, since the posts were organized into local cadre way back in the year 1976 itself.

(f) According to Para-8(2) of the Presidential Order, 70% of the posts to be filled by direct recruitment at any rate in any local cadre under State Govt. , comprising posts belonging to non-gazetted categories other than those referred to in item(a ) of Sub-Para 1 and (b) in any cadre under the local authority comprising posts carrying a scale of pay, minimum of which are fixed pay which exceeds the minimum of the scale of pay of a lower division clerk, but does not exceed Rs.480/- per month or any amount corresponding to it as specified in this regard in the successive revisions of pay scales granted by the State Government from time to time shall be reserved in favour of local candidates in relation to local area in respect of such cadre. The Government issued instructions for organization of local cadres in GO.Ms.No.728 dt.1.11.1975. According to Para-4 thereof, a post shall be deemed to be equivalent to lower than that of Lower Division Clerk, if the scale of pay of the post or where the post carries a fixed pay, such fixed pay is equal to or lower than the minimum of the scale of Lower Division Clerk viz., 240 (vide explanation to para 3(2) of the order). In every subsequent revision, ever since the Presidential Order, the pay scale of SGT is higher than the pay scale of LDC / Junior Assistant. Therefore, in accordance with the orders in Para-8(2), the ratio of locals and open for Secondary Grade Teachers and other equivalent categories and higher categories is 70: 30. Further the Government issued memo dt.11.12.2009 directing the Commissioner and Director of School Education, Hyderabad to review the appointment of teachers for the period from 18.10.1975 to 31.5.2001 in the ratio of 70:30 in favour of local and open category, and candidates from 1.6.2001 onwards, it shall be in the ratio of 80:20 which was in force during the relevant period. However, the Government issued Go.Ms.No.674 dt.7.9.2007 to review the appointments of SGTs in the ratio of 80% for the locals and 20% for the open which is contrary to the Presidential Order and also contrary to the decision of the Honble High Court reported in 1998 (5) ALT 772 (DB).

(g) The Government issued G.O.Ms.No.2 dt. 3.1.2002 incorporating S.O.1219 E dt.13.12.2001, which is an amendment to the Presidential Order. According to the said orders, in Sub-Para-1 of Para-8, after item-B a new sub-para is added with effect from 1.6.2001 , which reads as follows:(a) 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. C(i) In any local cadre under the State Government comprising posts belonging to the categories of Teachers in the Andhra Pradesh School Education Subordinate Service and all other similar equivalent categories of posts of teachers under any Department of the State Government; and

(ii)In any cadre under a local authority or under any such other management, as may be notified by the State Government from time to time carrying a scale of pay of pay equal to that of posts in the Andhra Pradesh School Education Subordinate Service shall be reserved in favour of local candidates in relation to the local area in respect of such cadre.

(h) Amendments issued in GO.Ms.No.2 dt.3.1.2002 are only prospective w.e.f. 1.6.2001 and therefore, selections made up to 31.5.2001 are only 70% for locals and 30% for open category. However, Government issued GO.Ms.No.674 dt.7.9.2007 to review the appointments of Secondary Grade Teachers in the ratio of 80% for locals and 20% for open with effect from 1975 which is contrary to the Presidential Order and also the law laid down by the Honble High Court. According to Para-11 of the Presidential Order, the provisions of Presidential Order shall have effect not withstanding anything contained in any statute, ordinance, rule, regulation or other orders made before or after the Presidential Order in respect of direct recruitment to posts under State Government or any local authority. Therefore, the orders issued in Go.Ms.No.674 dt.7.9.2007 have no relevance and as such said orders are ignorable.

(i) According to the procedure for selection of candidates in accordance with GO.P.No.763 GAD dt.15.11.1975, the non locals can be selected at any roster point to the extent of posts available for open competition. However, the Govt. issued GO.Ms.No.8 GAD dt.8.1.2002 modifying para-3 and 4 and substituting the following paras:5. In the said orders, in the Annexure-I(5)(i) For paragraphs 3 and 4 the following shall be substituted namely:Para 3: The provisional list shall be divided into two parts. The first part will comprise first 20% of the list. The second part will comprises the balance 80%. In case the provisional list does not contain any non-local candidate in the second part, the list shall be approved.

Para 4: If however on the scrutiny referred to in para 3 it is found that there are non-local candidates in the second part of the list, then these candidates shall be removed and replaced by local candidates ensuring that the rule of reservation is followed.

(ii) The illustrations thereunder shall be omitted.

From the above, it is clear that non locals can be selected for the first 20% of the vacancies only w.e.f. 8.1.2002. These orders cannot be applied for earlier selections. However, while repatriating teachers, the Government have strangely followed subsequent orders issued in GO.Ms.No.8 GAD dt.8.1.2002 even though the said GO is not in operation at the time of selection and appointment of the applicants. It would be relevant to note that accrued rights cannot be divested by seeking to enforce amendments retrospectively. Further, executive orders operate prospectively and no retrospective effect can be given to executive orders issued under Article 162 of the Constitution of India. The power to review the allotments made should be traced to a relevant statutory provision. Paragraph-13 of the Presidential Order confers a limited power. However, a time limit of 12 months is stipulated to review the allotments made initially. It is settled law that once the act or statute prescribes the manner in which things have to be done, it has to be done in that manner alone and not otherwise. Therefore, the impugned action of the respondents in issuing the repatriation orders giving effect to the amendments issued in GO.Ms.No.8 GAD dt.8.1.2002 is highly illegal and arbitrary as the procedure of selection cannot be amended retrospectively. On this point, the counsel have relied upon the Judgments of the Honble Supreme Court in the following cases:(i) In the case of GOVERNMENT OF ANDHRA PRADESH vs. MOHD. GHOUSE MOHINUDDIN AND OTHERS reported in 2001 (8) SCC 416 (Civil Appeal No.1651 and 1652 of 1997)(ii) In N.T.BEVIN KATH etc., vs. KARNATAKA PUBLIC SERVICE COMMISSION AND OTHERS reported in AIR 1990 SC 1233.

(iii) A.A.CALTON vs. DIRECTOR OF EDUCATION DEPARTMENT AND ANOTHER reported in 1983 (3) SCC 33.

(iv) In the case of B.PRABHAKAR RAO AND OTHERS vs. STATE OF A.P. AND OTHERS ETC., reported in AIR 1986 SC 210 [A.P. Public Employment (Regulation of age of Superannuation) Amendment Act 3 of 1985.]

(v) 2010 STPL (Web) 504 SC MD RAISUL ISLAM VS. GOKUL MOHAN HOZARIKA

(j) The applicants by virtue of their appointments in their respective districts on the basis of rules and procedure of selection then in vogue have acquired some vested rights in respect of their seniority, cadre management, right to be considered for promotion to the higher posts basing on their eligibility and qualifications. This vested right cannot be unilaterally taken away on the basis of subsequently amended rules by giving the same retrospective effect. Moreover, the modified selection procedure in GO.Ms.No.8 dt.8.1.2002 and GO.Ms.No.124 dt.7.3.2002 are only executive instructions and they cannot be operated retrospectively. Further, the President of India is a delegate of Constitution in exercise of power under Article-371(d). Article 371(d) gives the President the power to issue orders from time to time for localization of posts of various categories but does not empower President to bring such orders into operation retrospectively. Since the Presidential Order including amending orders if any create substantive rights and limitations, the power to issue orders retrospectively cannot be assumed or inferred when it is not provided for explicitly or by necessary implications. The method of procedure which is issued in implementation of the Presidential Order is executive in nature. In the absence of statutory rules, it is settled law that executive instructions prevail. Therefore, procedural instructions for selection of candidates between locals and open category cannot be effected retrospectively.

(k) According to the Presidential Order, various posts under State are organized as district cadre, zonal cadre, multi zonal cadre posts. As such, the holders of the posts like applicants are liable to be transferred within the district. By virtue of the impugned orders, the applicants are posted out of their local unit which is against the statutory rules and no one can be posted outside the local unit without his or her consent. Further the applicants are all selected and appointed in the quota of 30% meant to be filled up by open category. They are required to be retained in the unit where they are appointed and they cannot be repatriated outside their unit of appointment. The applicants have distinguished the Judgment rendered in WP.No.23391/2009 and batch (D.V.V.N. MALLESHWARI CASE).

(l) All selections to the posts under the State are made by duly constituted Selection Committees and Andhra Pradesh Public Service Commission. The State Government being an appointing authority can review selections made by Selection Committees/APPSC. The State Government, vide impugned orders is trying to recast the selection list which was prepared by duly constituted Selection Committees and AP Public Service Commission. The Government vide GO.Ms.No.674 dt.7.9.2007 has directed the departments of the State to review or recast the selections made from 1975 onwards. In this regard, as per Article 320 (3) (a) of the Constitution, the State Public Service Commission shall be consulted in all matters relating to method of recruitment to civil services and for civil posts. The Government has also constituted District Selection Committees through statutory rules to select candidates for different categories of posts like teachers. The Public Service Commission has made selections to more than one unit of appointment. All the selections made by APSPSC are multiple cadre recruitments. The procedure to select the candidates to multiple cadres is prescribed in Para-6 of Annexure-III of GO.Ms.No.763 dt.15.11.1975 which is not amended so far. If the selections made to the multiple cadres are to be reduced or re-casted, the merit list of all the candidates and the options exercised by all the candidates are required. Therefore, the appointing authorities and the departments cannot recast or review the selections made by APPSC or DSCs without merit list. The Government through an executive order vide GO.674 dt.7.9.2007 cannot direct the department to review or recast the selections made by the APPSC or District Selection Committees and repatriate the applicants by transfer to the other units of appointments which is against law.

(m) In addition to the aforementioned contentions, it is further contended that no notice and opportunity is given to the applicants before passing the impugned orders. Therefore, the action is violative of principles of Natural Justice.

(n) Furthermore, it is contended that the respondent State could not have invoked Para-5(2)(c ) of the Presidential Order for passing the impugned order.

6.Learned Counsel Mr. J.R. Manohar Rao, submits that the Government issued G.O.Ms.No.610 dt.30.12.1985. In due implementation of the said G.O., repatriation orders are passed in various G.Os., repatriating certain persons to their respective zones. There is no grievance insofar as G.O.Ms.No.610 dt.30.12.1985 is concerned. After more than 20 years, due to agitation by one of the political parties, the Government issued G.O.Ms.No.674 dt.7.9.2007, according to which, the persons who are appointed contrary to the Presidential Order have to be repatriated. There is no dispute with regard to the said proposition. The main grievance is regarding the procedure to be followed while deciding the issue regarding recruitment of non locals. G.O.Ms.No.763 dt.15.11.1975 deals with the procedure to be followed in the matter of selection of local candidates (for various categories). Subsequently, an amendment was issued vide GO.Ms.No.8 GAD dt.8.1.2002 amending Annexure-I of the said GO. Similarly, GO.Ms.No.124 dt.7.3.2002 was issued amending Annexure-III of GO.Ms.No.763 dt.15.11.1975. The said amendments are prospective in nature. The question of modifying the selections made earlier to 2002 does not arise. The selections were made and finalized basing on the procedure in force as on that day. Now the Government issued GO.Ms.No.674 dt.7.9.2007, to follow GO.Ms.No.8 dt.8.1.2002 and GO.Ms.No.124 dt.7.3.2002 for reviewing the selections made prior to 2002. According to GO.Ms.No.674 dt.7.9.2007, the employees whose selections were irregular and contrary to the Presidential Order shall be repatriated to their local cadres by transfer. It was further stated that transfer shall be ordered in public interest by protecting the seniority. If the person was found ineligible to be appointed/selected, he has to be discharged from service. If the Government feels to protect their interest, they can be transferred to other units without protecting the seniority as those incumbents were not eligible to be appointed according to the Presidential Order. Protection of seniority will affect the rights of employees working in other units . Therefore, the question of protection of seniority should not be permitted.

7. Learned Additional Advocate General Sri K.G. Krishna Murthy, appearing on behalf of the State submitted that the Government with a view to rectify the violations in implementation of the Presidential Order in zone-V and VI, issued GO.Ms.No.610 dt.31.12.1985. The said GO came to be issued when the violations were brought to their notice by various service organizations. The GO contemplated repatriation of persons to the respective local cadres for purpose of effectively implementing the Presidential Order. The Government constituted One Man Commission under Sri J.N.Girgilani, IAS (retired) for purpose of implementation of Go.Ms.No.610 dt.31.12.85. The Committee conducted an in depth enquiry into the issue and submitted its report to the State and State decided to constitute Cabinet sub-committee vide Go.Ms.No.213 dt.4.8.2004. Besides this, a decision was taken to constitute an Officers Committee for the said purpose vide G.O.Rt.No.1878. Subsequent development of working on the report by group of Ministers and accepting the report of the One Man Commission occasioned in GO.Ms.No.72 dt.4.3.2006. However, GO.Ms.No.116 was kept under abeyance and GO.Rt.No.4173 dt.7.8.2006 was issued wherein a decision was taken to appoint a Committee to examine certain items for early implementation of GO.Ms.No.610. Thus, after continuous discussion, collection of basic data regarding local candidates and their allotment as contemplated in the Presidential Order, it has been decided in GO.Ms.No.674 dt.7.1.2007 to review the appointments from 18.10.1975 and to repatriate non-locals appointed in excess of percentage to the respective local cadres. This was done in accordance with the procedure for filling up of vacancies as substituted vide GO.Ms.No.8 dt.8.1.2002. Basing on this, the consequential repatriation orders were issued after duly taking options from those who are liable to be repatriated.

8.It is the contention of the State that exercise of power by State Government is fully within the jurisdiction. The very purpose of issuing GO.Ms.No.610 dt.31.12.85 was for rectifying the errors that crept in at the time of implementation of the Presidential Order. That being the situation, the mistakes are to be rectified by resorting to corrective mechanism, failure of which would result in flouting the special provisions contained in Article 311 (d) of the Constitution of India and Presidential Order.

9.Learned AG further contended that Go.Ms.No.674 dt.7.9.2007 would protect the interest of the individuals who are now transferred pursuant to the decision to implement the Presidential Order in its full spirit. This factor is evident from Para-7 of the GO which clearly states that after specific identification non locals who have been appointed in deviation shall be repatriated to their respective local cadres by transfer. The transfers so ordered shall be in public interest as provided in Para-5 (2)( c) of the Presidential Order. In view of this specific provision, Para-8 goes further to state that all the employees so transferred shall be eligible for TA and protection of seniority as the transfers are made in public interest. In view of this, the contention of the applicants that they suffered prejudice cannot be accepted. When an action of the administrative authorities does not visit the employees with civil consequences or any way prejudices them, the principles of natural justice need not be followed. Further, implementation of the Presidential Order which itself is a special provision would have to gain paramount importance and the individual interest will have to give way to the public interest. On this point, following decisions are relied upon:(a) UNION OF INDIA VS. MUSTAFA AND NAJIBAI TRADING COMPANY reported in 1998(6) SCC 79.

(b) ALIGARH MUSLIM UNIVERSITY vs. MANSOOR ALI KHAN reported in 2000 (7) SCC 529.

(c) COMPETITION COMMISSION OF INDIA VS. SAIL reported in 2010 (10) SCC 744

10.Further learned Advocate General contended that G.O.Ms.No.8 dt.8.1.2002 can be given retrospective effect. The provisions of the GO would make it clear that Para-3 and 4 of the Annexure to GO.Ms.No.763 dt.15.11.1975 have been substituted by new provision. It is settled principle of statutory interpretation that the substitutions made to the statutory instruments would have to date back to the date of giving effect to the main provision. The Go.Ms.No.763 dt.15.7.75 details the procedure now stands substituted by the provisions of GO.Ms.No.8 dt.8.1.2002, as such the procedure of appointments must be governed by GO.Ms.No.763 dt.15.7.1975 as substituted by GO.Ms.No.8 dt. 8.1.2002 On this point, he submits that he is fortified by the decision of the Honble Supreme Court rendered in the following cases:(a) JOSE DA COSTA vs. BASCORA SADASIVA SINAI NARCORNIM reported in 1976 (2) SCC 917.

(b) GURBACHAN SINGH VS. SATPAL SINGH reported in 1990 (1) SCC 445.

(c) DIRECTOR OF HEALTH OF AP, HYDERABAD AND OTHERS vs. DR.P.VEERABADHRA RAO AND OTHERS reported in 2008 (4) ALT 744.

11.It is the further contention of the learned Advocate General that law relating to interpretation of statutes is that provisions which have the nature of supplying an obvious omission , clearing of doubts and curative amendments would have to be considered as retrospective.(VIJAY vs. STATE OF MAHARASHTRA reported in 2006 (6) SCC 289. The said decision buttresses his contention as in the case on hand, the procedure which was adopted results in the Presidential Order not being properly implemented. This is an obvious error which frustrates the very scheme of the special provision and this was sought to be cured by specifying a procedure which would help in furtherance of the avowed object for which the constitutional amendment was made by inserting Article 371 (d). This came to be done by issuing GO.Ms.No.8 dt.8.1.2002, according to which open category vacancies have to be filled up in the first instance which may also include meritorious local candidates besides non local candidates. In a given situation, it could also result in all the open seats being filled up by meritorious local candidates. In contra distinction to this procedure, filling up of local candidates at the first instance would result in meritorious open candidates being left out of consideration and that hits the equitable distribution contemplated in the Presidential Order. The procedure substituted by G.O.Ms.No.8 dt.8.1.2002 which has cured this malady and in accordance with Law is to be given effect from the date on which the Presidential Order has been given effect to that is from 18.10.1975.

12.Learned Advocate General also contended that another principle of interpretation consistently followed is that there is a general presumption of prospectivity in favour of the legislative instruments unless expressly provided that it would have prospective effects. Such a presumption is liable to be made only in cases of statutes and amendments thereto which are of substantive nature. Such a presumption does not exist in respect of procedural amendments. Assuming for the sake of arguments that amendment has to be presumed to be prospective, in the present scenario, the amendment being only procedural in nature, such a presumption cannot be pressed into service. On this point, he submits that he is fostered by the decision rendered by the Honble Supreme Court in the case of ARAVIND KUMAR VS. STATE OF MADHYA PRADESH reported in 2007 (12) SCC 681 and in the case of RAJENDRA KUMAR VS. KALYAN reported in 2000 (8) SCC 99.

13.In fact, GO.Ms.No.2 dt.3.1.2002 and GO.Ms.No.8 dt.8.1.2002 through which the procedure and percentage in respect of local candidates suffered a change was subject matter of litigation before the Full Bench of this Tribunal in OA.562/2002 and batch. The Full Bench did formulate the issue whether the amendments issued as per GO.Ms.No.2 dt.3.1.2002 and GO.Ms.No.8 dt.8.1.2002, are prospective or retrospective in operation. However, the Full Bench did not consider the issue relating to prospectivity of the GO, but held that as per the existing law, the ratio of 80:20 between the local and non local candidates is to be followed. The Full Bench further concluded that both GO.Ms.No.2 dt.3.1.2002 and GO.Ms.No.8 dt.8.1.2002 were valid. A judicial review of the said order was sought by filing Writ Petition, but even the Honble High Court did not deal with the issue relating to prospectivity or otherwise of the GO as that was not the question before the Honble High Court. Therefore, the applicants cannot rely on the orders of the Full Bench. Another judgment of the Full Bench dealt with the issue as to the selections which were made by the District Selection Committee in 1998 need to be reviewed and the percentage of local candidate that is liable to be treated as reserved is 80% as against 70% followed then. This Full Bench also never dealt with the question of operation of GO.Ms.No.8 dt.8.1.2002, more importantly as to whether it was prospective or retrospective in its operation. In view of this, the contentions of the applicants that the GO must be prospective in operation cannot be accepted by this Tribunal.

14.For another contention that has been raised by the applicants that the question of repatriation is alien to the facts of the present case as it is not a case of deputation, learned AGP contends that this submission cannot stand the scrutiny of this Tribunal as the allotments and appointments have been made in respect of the posts liable to be thrown open to all i.e., local and non local have not been filled up, on account of which, the provisions of the Presidential Order and the purpose for which it has been framed would get defeated. The corrective mechanism adopted by the State Government cannot be legally assailed by the applicants. Further, this aspect of the matter has been considered by the Division Bench of the Honble High Court in the case of GOVERNMENT OF AP vs. B.V.N.MALESWARI in W.P.NO.23391/2009 and batch.

15.Leaned Advocate General further contended that impugned order does not call for interference as it is a policy matter. The Courts interference with regard to the policy matters has been clearly spelt out in following decisions:(a) DILIP KUMAR GARG VS. STATE OF U.P. reported in 2009 (4) SCC 753.

(b) DELHI DEVELOPMENT AUTHORITY VS. JOINT ACTION COMMITTEE, ALLOTTEE OF SFS FLATS reported in 2008 (2) SCC 672 AT PAGE 672

16.In view of the legal position, impugned orders have been passed as a matter of policy to implement the mandates of the Presidential Order in its true spirit. It does not fall within any of the permissible grounds on which the said policy decision can be interfered with by this Tribunal in exercise of its power of judicial review.

17.Learned Advocate General further contended that the main contention of the applicants that on account of repatriation their promotional prospects would be adversely affected, cannot be accepted because it is settled proposition of law that mere chances of promotion are not conditions of service and the fact that there is reduction in chances of promotion do not tantamount to changing conditions of service. On this point, he relies on the following decisions:

(a) STATE OF MAHARASTRA vs. CHANDRAKANTH ANANTH KULKARNI reported in 1981 (4) SCC 130.

(b) R.S. DEODHAR vs. STATE OF MAHARASHTRA reported in (1974) 1 SCC 317.

(c) STATE OF MYSORE vs. G.N. PUROHIT reported in 1967 SLR SC 753.

(d) MOHD. SHUJAT ALI vs. UNION OF INDIA reported in (1975) 3 SCC 76.

(e) MOHD.BHAKAR vs. Y. KRISHNA REDDY reported in 1970 SLR 768 SC.

(f) RESERVE BANK OF INDIA vs. C.T. DHIGE reported in (1981) 3 SCC 545.

(g) RESERVE BANK OF INDIA vs. C.N. SAHASRANAMAN reported in (1986) Suppl SCC 143.

(h) PALURU RAMAKRISHNAIAH vs. UNION OF INDIA reported in (1989) 2 SCC 541.

(i) K. JAGADEESAN vs. UNION OF INDIA reported in 1990 (2) SCC 228.

18. Heard both sides. Perused the material on record.

19.After hearing the counsel appearing on behalf of the applicants and the learned Advocate General, the following points arise for consideration:

1. Whether Go.Ms.No.610 dt.30.12.1985 and Go.Ms.No.674 dt.7.9.2007 in particular para-5 , violate the provisions of the Presidential Order contained in Go.Ms.No.674 dt.20.10.1975?

2. Whether the amendments issued by way of substitution as per GO.Ms.No.8 Edn., dt.8.1.2002 and GO.Ms.No.124 dt.7.3.2002 are prospective or retrospective in operation?

3. Whether the Government invoke the provisions contained in Para-5 of the Presidential Order for effecting transfers in furtherance of GO.Ms.No.610 dt.30.12.1985 and GO.Ms.No.674 dt.7.9.2007 and whether the action of the respondents is in violation of principles of Natural Justice?

4. Whether the action of the respondent Government in issuing the repatriation orders amount to tinkering with the rankings assigned by the selecting authorities like Andhra Pradesh Public Service Commission and District Selection Committees?

5. Whether the vested right of promotion of the applicants is sought to be taken away?

20.POINT NO.1:

In order to decide the first point, it would be appropriate to extract G.O.Ms.No.610 GAD dt.30.12.1985 and G.O.Ms.No.674 dt.7.9.2007. G.O.Ms.No.610, dated 30.12.1985, read as follows:GO.Ms.No.610Dated:30.12.1985 Read the following:1. GO.Ms.No.674 G.A. (SPF.A) Dept., dated:20.10.1975.2. GO.P.No.728 G.A. (SPF.A) Dept., dated: 1.11.1975.3. G.O.P.No.729 G.A. (SPF.A) Dept., dated:1.11.1975.4. From the President, Telangana Non-Gazetted OfficersUnion letter Dated:5.12.1985.. . .ORDER:The GO.1st read above, which is generally known as Presidential Order contains principles regarding Organization of Local Cadres allotment of personnel of the various departments to the various local cadres to method of direct recruitment to the various categories, inter-local cadre in transfers etc., of the employees holding those posts. In the GOs 2nd and 3rd read above clarificatory instructions were issued regarding procedure for implementation of the various provisions of the Presidential Order.

In accordance with the provisions of the Presidential Order, local cadres have been organized to the various categories of posts in all Government Departments and allotment of personnel was made as per the guidelines contained in paragraph-4 of the said order.

In the representation 4th cited, the President, Telangana Non-Gazetted Officers Unions has represented that certain allotments have been made in violation of the provisions of the Presidential Order.

The Government after carefully examining the issues raised in the representation and after having vide ranging discussions with the representatives of the union have entered into an agreement with the Telangana Non-Gazetted Officers Union on 7.12.1985.

As per the terms of agreement the following Orders are issued:(1)The employees allotted after 18-10-1975 to Zones V to VI in violation of zonalisation of local cadres under the Six Point Formula will be repatriated to their respective zones by 31.03.1986 by creating supernumerary posts wherever necessary.

(2)In Respect of Jurala, Srisailam Left Canal and Sriramsagar Project Stage II, all the staff in the Non-Gazetted categories both technical and non-technical including Asst. Executive Engineers (formerly J.Es) coming under zonalisation of local cadres under the Presidential Order of 1975 who were posted to the Projects from outside zones V and VI after 1-3-1983, will be re-transferred to their respective zones and posted either in existing vacancies in supernumerary posts where vacancies are not available. Towards this the Government will also move the Government of India for seeking amendment to Government of India's notification GSR 525-E dated 28-6-1985 to give retrospective effect to this order with effect from 1-3-1983.

(3)(a)In respect of appeals filed against orders of allotment made under paragraph 4 of the Presidential Order of 1975 to the competent authority in time and where such appeals are still pending disposal, all such cases where details are furnished by the T.N.G.O's Union or individuals, shall be disposed of by 31.3.1986.

(b)As a result of the above exercise, consequential vacancies if any, arising shall be filled up as per the procedure laid down under the Presidential Order.

(4)In respect of first level Gazetted posts in certain Departments which are outside the purview of the Presidential Order, action should be taken to review the question of inclusion of such posts also in the scheme of localization and the matter should be taken up review the question of inclusion of such posts also in the scheme of localization and the matter should be taken up with the Government of India for suitable amendment to the said order.

(5)The posts in Institutions/Establishment notified in GSR No. 526 (E) dated : 18-10-1975 shall be filled up by drawing persons on tenure basis from different local cadres on an equitable basis as per the orders issued in the G.Os. 3rd read above.

(6)Provision in Para (5)2(c) of the Presidential Order relating to inter-local cadre transfers shall be strictly implemented and such transfers shall b effected only under exceptional circumstances in public interest.

(7)Action will be initiated in the concerned departments in cases brought to their notice regarding bogus registration in Employment Exchanges.

(8)On receipt of complaints, if any, made by the TNGOs Union relating to irregular allotments of candidates particularly to Zone V and VI in the category of Village Assistants the concerned Department shall take up the matter with the A.P. Public Service Commissioner and take such measures as may be necessary to rectify the irregular allotments made if any.

(9)The possibility of allotting persons from within the same zone multi-zone against non-local vacancy in a particular local cadre will be examined in consultation with the APPSC.

(10)The T.N.GOs. Union will furnish to Government the service categories where for want of trained personnel, non local candidates are being appointed in zones. V and VI so that Government can provide training facilities in respect of such services/categories with a view to providing adequate opportunities for recruitment and appointment of local candidates in zones V and VI

(11)The Departments of Secretariat shall complete the review of appointments/promotions made under the Presidential Order as required under Para 13 of the said order, by 30.06.1986

(12)(a)Immediate action will be taken to finalise the common Gradation list in respect of former Assistant Engineers (Present Dy. EES) as on 01.11.1956, following the prescribed procedure under the S.R. Act. 1956.

(b)In respect of former Junior Engineers (Present Asst E.E.s) the common gradation list published by the Government was quashed by the A.P. Administrative Tribunal and the Government had gone in appeal to the Supreme Court. Effective measures will be taken for the disposal of the matter before the Supreme Court, Expeditiously.

(13)The matter relating to allotment of 7 non-local personnel in the cadre of Inspector of Local Funds Audit belonging to zones 1 to IV, will be considered by the Department concerned keeping in view the provisions of the Presidential order. (14) The question of repatriation of 13 Deputy Executive Engineers of the Public Health Department working in the city of Hyderabad to zones I to IV be considered by the Department concerned keeping in view the provisions of the Presidential Order.

G.O.Ms.No.674 GAD dt.07.09.2007 read as follows:

GO.Ms.No.674Date:7.9.2007 Read the following:

1. Circular Memo No.9543/MC/2007-11, General Administration (MC) Department, dated 2.7.2007.2. Circular Memo No.9543/MC/2007-13 , General Administration (MC) Department, Dated: 2.7.2007.

ORDER:

The Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 provides for reservation in the matter of direct recruitment for Local Candidates in the different categories of post specified therein.

2. In 1985 Government had issued Go.Ms.No.610 in order to rectify certain deviations in the implementation of the provisions of the Presidential Order in Zones V and VI and again in 2001 Government constituted the One Man Commission (The Girglani Commission) to receive representations and sort out the anomalies in the implementation of the Go.Ms.No.610 General Administration (SPF-A) Department, dated 30.12.1985 and take up follow up action for the rectification of defects, anomalies and irregularities in the implementation of the Presidential Order and to suggest remedial actions in matters relating to the Public Employment and it submitted report on 2.9.2004. The recommendations of the Girglani Commission were considered and accepted by the Government and in pursuance thereof, Government directed that a review be conducted for direct recruitments made from 1975 onwards in order to ensure that the provisions of the Presidential Order, 1975 are strictly implemented.

3. Government had issued GO.Ms.No.763 General Administration (SPF-A) Department Dated.15.11.1975 laying down the procedure to be followed in the manner of selections of local candidates. Subsequently, Government revised the procedure of selection of local candidates and issued Go.Ms.No.8 General Administration (SPF-A) Department, dated 8.1.2002 and also decided that the revised procedure should be made applicable to all direct recruitments in the State. It was also noticed that in some direct recruitments, the reservation for locals was reduced to 70% as against the originally provided 80%.

4. The procedure required to be followed for filling up the posts for open competition, consistent with the provisions of the Presidential Order is that all the candidates will be considered adhering to the roster points as applicable and these should be filled first on the basis of merit. After filling these posts, the remaining posts are to be reserved for Local Candidates (80% , 70% or 60 % , as the case may) and shall be filled up exclusively by local candidates.

5. By following this procedure and adhering to the prescribed percentages, the review of appointments conducted has shown that the appointment of non-locals made in certain Units of appointment in the recruitment conducted in specified years has not been strictly in accordance with the percentages and procedures as prescribed.

6. Government have now decided that the non-local candidates appointed in deviation of the Presidential Order, as identified by the respective departments by reviewing the direct recruitments made from 1975 onwards be repatriated to their respective local cadres to which the candidates would otherwise belong to.

7. After such specific identifications, non-locals who had been appointed in deviation shall be repatriated to their respective local cadres by transfer. The transfers shall be ordered in public interest as provided under Para 5(2)(c ) of the Presidential Order.

8. The employees covered by such transfers shall be eligible for TA and protection of seniority since the transfers are made in public interest.

9. Illustration: In District Selection Committee 2000 recruitment for the post of Secondary Grade Teacher (SGT), Telugu medium, 1340 vacancies were notified. Out of these, 1185 vacancies were filled up which comprised of 834 vacancies for Government Schools and 351 vacancies for Zilla Parishad Schools. The vacancies meant for open competition in this selection are 167 for Government Schools and 75 for Zilla Parishad Schools. The remaining vacancies reserved for local candidates of Mahboobnagar District comprised of 667 vacancies for Government Schools and 276 vacancies for Zilla Parishad School. The list showing details of this selection is annexed to this order for the sake of clarity and uniformity.

10. It is advised that the respective Departments should prepare statements as shown in the illustration such that process can be implemented through transparent manner. It is further raised that the statements as shown in the illustration should be made available in the Web. Copies should be displayed in the Notice Board and also be made available to those who wish to have them.

11. The Ban on transfer of employees address are not applicable to transfers effected in pursuance of these orders, as per para 3(11) of Go.Ms.No.154 Finance (W&M) Department, Dated:4.7.2007.

12. The orders shall be issued by the concerned Secretary to government since it is an inter local cadre transfer.

21.On a plain reading of the aforesaid GOs, it is seen that certain allotments have been made in violation of the provisions of the Presidential Order. There was hue and cry by the Telangana Non Gazetted Officers Union and other Unions and the Government have issued G.O.Ms.No.610 dt.30.12.1985, at the first instance and subsequently, One Man Commission was constituted (Girglani Commission) to receive the representations and to take up follow up action for rectification of defects and anomalies and irregularities in the implementation of the Presidential Order and to suggest remedial actions in the matter. The Committee had wide ranging discussions and recommended that a review of the direct recruitments made from 1975 onwards be conducted, in order to ensure that provisions of the Presidential Order, 1975 are strictly implemented. Thereafter, Go.Ms.No.674 dt.7.9.2007 was issued accepting the recommendations and worked out modalities.

22.The basis for contention that the impugned GOs are violative of Presidential Order is based on Paragraph-3 and 4 of the Presidential Order, which reads as follows:3. Organization of local cadres: (1) The State Government shall within a period of *twenty-seven months from the commencement of this Order, organise 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 to the extent and in the manner, hereinafter provided.(*Vide GO.Ms.No.728, G.A. (SPF.A) Dept, dt.27.10.1977).

Provided that, notwithstanding the expiration of the said period, the President may by order, require the State Government, whenever he considers it expedient so to do, to organise any classes of posts in the civil services of and clauses of civil posts under the State into different local cadres or different parts of the State.(Vide GO.Ms.No.34 G.A. (SPF.A) Dept., date 24.1.81)

(2) The posts belonging to the category of lower division clerk and each of the other categories equivalent to or lower than that of a lower division clerk in each department in each district shall be organised into separate cadre.

Explanation:- For the purposes of this sub-paragraph, sub-paragraph (1) of paragraph 6 and sub-paragraph(1) of paragraph 8 a category shall be deemed to be equivalent to or lower than that of a lower division clerk if the minimum of the scale of pay of a post belonging to that category or where the post carries a fixed pay, such fixed pay is equal to or lower than the minimum of the scale of pay of a lower division clerk.

(3) The posts belonging to each non gazetted category, other than those referred to in sub-paragraph (2), in each department in each zone shall be organized into a separate cadre.

(4) The posts belonging to each specified gazetted category in each department in each zone shall be organised into a separate cadre.

(5) Notwithstanding anything contained in sub-paragraph (3) and (4), the State government may where it considers it expedient so to do and with the approval of the Central Government, organised the posts belonging to any of the categories referred to therein, in any department, or any establishment thereof, in two or more contigeous zones into a single cadre.

(6) Notwithstanding anything contained in sub Paragraphs (2), (3), (4) and (5), the Central Government; may notify the departments in which and the categories of posts for which a separate cadre has to be organised for the City of Hyderabad and on such notification, the posts belonging to each such category in each such department in the said City (other than those concerned with the administration of areas falling outside, the said City) shall be organise into a separate cadre and the posts so organised in pursuance of this paragraph or Constituted otherwise and comprising posts belonging to the category in that department.

(7) In organising a separate cadre in respect of any category of posts in any department for any part of the State, nothing in this Order shall be deemed to prevent the State Government from organising or continuing more than one cadre in respect of such category in such department for such part of the State.

(8) Where the Central Government is satisfied that it is not practicable or expedient to organise local cadres under this paragraph in respect of any non gazetted category of posts in any department, it may, by notification, make a declaration to that effect and on such declaration the provisions of this paragraph shall not apply to such category of posts.

4.Allmotment of Persons: -

(1) Persons holding posts required to be organised into local cadres shall be allotted to such cadres by the State Government or any officer or authority authorised by it in this behalf in accordance with the principles and procedure hereinafter specified.

(2) In allotting persons to local cadres due regard shall be had to all or any of the following, namely:

(a)the administrative needs of the posts in the local cadres:(b)the need for the composition of balanced local cadres with reference to age and seniority groups;(c)the length of service of the persons concerned in the part of the State for which the local cadre is organised.(d)knowledge of the persons concerned of the language spoken and the law in force in the part of the State for which the local cadre is organised:(e)preference of the persons concerned for allotment to any local cadre, where feasible.(3)The State Government may, in respect of different departments and different categories of posts, constitute committees to advice on the allotment of persons to local cadres.

(4) Any person aggrieved by an order allotting him to any local cadre may submit a representation to the State Government within a period of sixty days from the Date of communication of the order.

(5) The State Government shall on receipt of such representation and after consultation with the appropriate committee constituted under sub-paragraph(3) make such order as it deems fit.

Provided that wherever such an order is likely to result in the change of allotment of any other person, no such order shall be made without giving an opportunity to that other person to make a representation.

(6) Every order passed by the State Government under sub-paragraph (5) shall subject to the provisions of clause (3) of article 371-D of the Constitution of India, be final.

23.The Pragraph-3 deals with organization of local cadres and the paragraph-4 deals with allotment of persons. The impugned GOs in the present batch of cases is neither concerning Organization of the local cadre nor the allotment of personnel to the local cadres. Certain aggrieved service unions felt that there is fallacy in implementation of the provisions of the Presidential Order. GO.Ms.No.763 dt.15.11.1975 prescribed the procedure of selection of local candidates. If the said procedure is followed where hundred posts were to be filled up and the reservation in respect of locals is 80%, the procedure that has been followed would stop at the merit list at 100. The test prescribed in GO.Ms.No.763 dt.15.11.75 would apply, it is found to satisfy the requirement as contemplated in Annexure-I of the said GO, the list would become final and the appointments would be made as per the said list. The reasoning of this procedure is that in a given case, persons who are non locals are found in the merit list commencing from 80 to 100, they would have to be selected. By virtue of this procedure, the non-locals who cannot be said to be meritorious would still be appointed and thereby the locals in whose favour the Presidential Order provides for a reservation would be denied the benefit of the same, this would be violative of the same.If the Presidential Order is followed strictly for achieving the purpose for which it has been made, local candidates ranking from 101 to 120 in the merit list would be deprived of being appointed and in other procedure for the purpose of appointment would render the Presidential Order nugatory and this fallacy has been corrected by issuing the impugned orders. In fact, the appointments which were made right from 1975 were not in consonance with the letter and spirit of the Presidential Order. The error which has crept-in in the implementation of the Presidential Order is being rectified and the exercise of power by the State is not at all contrary to the provisions of the Presidential Order.

24.It is a settled proposition of law that a common merit list will have to be prepared irrespective of caste, community, creed or region, from which a person comes from, would have been accommodated in the general merit quota. It has been held that merely because persons belonging to such streams earn a superior merit, the percentage of reservation would not be diminished. The contentions of the applicants that GO.Ms.No.763 would satisfy that 80% be filled up first is a statement without any legal basis and a reading of the said GO would make it very clear that that contention is not at all tenable. In support of this contention, Sri Mr. Surender Rao, Counsel, relied upon the Judgment of the Honble Single Judge in the case of PADMANABHA REDDY VS. STATE reported in AIR 1984 AP 129 and argued that this Judgment would be the last word on the controversy, which reads as follows:16. Now, the Presidential Order defines local area and local candidates and also provides for reservation in favour of local candidates, at the same time providing for the President, requiring the State Government to issue appropriate directions for the purpose of giving effect to the Presidential Order. The State Government has, accordingly, issued the directions contained in G.O.P.No.646, dated 10.7.1979. These instructions not only reiterate the definitions of local area and local candidates, but also prescribe the manner of implementation of reservation in favour of local candidates provided in the Presidential order. Annexure-III to G.O.P.No.646 expressly sets out the manner of implementation of reservation. It must, therefore, follow that these instructions contained in Annexure-III must prevail, and must be followed even in case the Rules of Admission contained in G.O.Ms.No.549 say to the contrary, in any respect. The fact that the Rules of Admission contained in G.O.Ms.No.549 are statutory, has no relevance, because these Rules must also be read consistent with, and subject to the Presidential Order, and the directions issued by the State Government in pursuance thereof, so long, of course, as the directions given by the State Government are within the four-corners of the Presidential Order. In the face of the instructions contained in Annexure-III to G.O.P.No.646, it is not possible to say that the method suggested by Mr.H.S.Gururaja Rao should be followed in the matter of making selections.

17. Mr. Gururaja Rao sought to contend that the State Government is empowered to give directions only in the matter of implementation of reservation in favour of local candidates, but is not empowered to lay down how the 15% of the un-reserved seats should be filled up and that, therefore, the directions of the State Government in Annexure-III cannot apply in the matter of filling up the said 15% seats. A moments scrutiny would expose the fallacy in the argument. What the State Government has done is to specify the manner in which the reservation in favour local candidates should be worked out; the State Government has not purported to lay down the method of filling up the 15% unreserved seats. It is not also suggested that, by following the formula contained in Annexure-III, the rule of reservation in favour of local candidates is in any manner being defeated, or curtailed.

25.We have perused the Judgments. The States contention now made was already rejected by the Honble High Court dealing with the AP Educational Institution (Regulation of Admissions) Order, 1974. The said judgment is not at all applicable to the facts and circumstances obtaining in the present case. The contention before the Court in that case was that the rules made regarding admission contained in GO.Ms.No.549 would have to be followed and the procedure as contemplated in GO.Ms.No.646 is not in consonance with the statutory rules of admission. Under such circumstances, the Honble High Court held that the orders passed in pursuance of the Presidential Order deal with admissions will have to prevail. The supremacy of the Presidential Order was upheld. The validity of GO.Ms.No.646 was not adjudicated. Therefore, the said judgment is of no avail to the applicants.

26.The applicants contended that the impugned GOs are issued without any direction either from the Central Government or the President. It is also contended that following of GO.Ms.No.763 dt.15.11.75 was not in proper implementation of the Presidential Order, was not even the finding of any judicial forum as well, and as such there was no necessity to change the procedure established in the said GO. The scheme of the Presidential Order was also sought to be pressed into service to state that the State had no role to play except in consonance with the directions of either the Central Government or the President. This argument seems to be not a plausible one. It is an admitted fact that Presidential Order has neither prescribed any procedure for ensuring the reservation contemplated therein is correctly implemented nor did it authorize any agency to do that. Obviously, the Presidential Order has not thought it necessary to do so as it deals with the recruitment to the Civil Services of the State. The Presidential Order has left the power to the State to decide and workout the modalities of recruitment and to implement the Presidential Order in its true letter and spirit. Therefore, the contention that GO.Ms.No.763 is issued without the directions of the President and same cannot be said to be the part of the Presidential Order, does not hold water.

27.Another contention is also raised that since the President has not required the State to issue direction as contemplated under Para-10, GO.Ms.No.763 itself would not have been issued by the State Government. This argument virtually cuts through the main argument that appointments made in accordance with GO.Ms.No.763 have attained finality and it cannot be reviewed now. Since this argument would run contrary to the main argument , no credence can be given to this point.

28.We have perused the following judgments relied upon by the learned counsel for the applicants on this point:(a) In the case of S.PRAKASHA RAO VS. COMMISSIONER OF COMMERCIAL TAX AND OTHERS reported in AIR 1990 SC 997.

(b) In the case of M.KESHAVULU vs. STATE OF A.P. reported in 2003 (6) ALD 522.

(c) In the case of GOVERNMENT OF ANDHRA PRADESH vs. P. VEMA REDDY reported in 2007 (3) ALT 287.

(d) In the case of V.JAGANNADHA RAO AND OTHERS vs. STATE OF AP AND OTHERS reported in AIR 2000 (2) SC 77.(e) In the case of M. SHYAM SUNDER vs. STATE OF A.P. TR & B DEPARTMENT reported in 2001 (6) ALD 87.

29.The Honble Supreme Court has decided the case of S.PRAKASHA RAO VS. COMMISSIONER OF COMMERCIAL TAX AND OTHERS reported in AIR 1990 SC 997 in the back drop of factual aspects obtaining in that case and held as follows:6.Thus, it is seen that pursuant to thepower given under cls . (1) & (2) of Art. 371-D the President had issued the order organising local cadres and zone consists of Adilabad , Warangal, Karimnagar and Khammam revenue districts. It is the local area for the local cadres. Thepost of the Junior Assistant is the district cadre post and the post of Senior Assistant and Assistant Commercial Taxes Officers, etc. are the zonal posts. The State Government is empowered under the Presidential Order to organise the local cadres within a period of twelve months fromOctober 20, 1975. In pursuance thereof the State Government in Commercial Taxes Department issued order G.O.Ms. No. 581 dated May 24, 1976 organising zones for the purpose of Commercial Taxes Department, namely, Visakhapatnam, Kakinada, Krishna, Guntur, Triputhi, Karnool, Warangal, Hyderabad - 1 and Hyderabad-II. Warangal zone consists of revenue districts of Adilabad, Karimnagar, Warangal and .Khammam. Thus, the Warangal zone of Commercial Taxes Department for the purpose of recruitment, seniority, promotion, transfer, etc. of local cadres is co-terminus with the zone V of the Presidential Order. The Junior Assistant in each revenue district in Warangal zone is a separate district post , but for the purpose of promotion to the post of Senior Assistants and Assistant Commercial Taxes Officers, which are zonal posts common seniority of the Junior Assistants, Senior Assistants working in all the four revenue districts shall have to be maintained and promotions made in accordance with Ministerial Service Rules or the Commercial Taxes Subordinate Service Rules issued under proviso to Art. 309 of theConstitution as the case may be. It would be subject to rule of reservation for local candidates as adumbrated in para 8 of the Order and the general rule of reservation made in Rule 22 in Andhra Pradesh State and Subordinate Service Rules.

7. It would appear from the record that the Government intended to reorganise, for the purpose of efficient administration of the Commercial Taxes Department and create separate divisions within the zones and issued through G.O.Ms. No. 1900 dated December 22, 1981 carving out Adilabad and Karimnagar as Adilabad division and Warangal and Khammam as Warangal division with the administrative control of the concerned Dy. Commissioner of Commercial Taxes at Adilabad and Warangal. As a follow up action options have been called for from the employees and they have been allotted in G.O.Ms. No. 1648 dated November 22, 1982 to the respective divisions. It is not disputed that the allotment and transfer were not made in terms of Para 4 of the Order. As stated earlier this action had given rise to the above . Representation Petitions and the orders passed by the Tribunal and the results ensued thereunder.

8. Dr. L.M. Singhvi, the learned Senior Counsel for the appellants, contends that paragraph 3(7) of the Order empowers the State Government to create a zone within the Warangal zone for the purpose of recruitment, seniority and promotion. The State Government has inherent power in that regard. There is no express prohibition in that regard in the order. The phrase 'or constituted otherwise' engrafted in the definition of local cadre in paragraph 2(e) read with paragraph 3(7) gives ample power to the State Government to organise any local cadre within the zone for the Commercial Taxes Department. The action thus, taken by the State Government is clearly within its power.The contra finding recorded by the Tribunal is illegal. He placed strong reliance on a decision of a single member Tribunal made in R.P. No. 101 of 1982 and batch dated April 1, 1982. He further contended that in maintaining harmony in Centre-State relationship, the State Government shall continue to have its inherent power to organise its local cadre to meet the exigencies of its administrative needs. The prior approval or concurrence of the Central Government is redundant. We find no force in these contentions. It is already seen that in exercise of the power under paragraph 3(1) of the Order the State Government shall, within a period of twelve months from the date of the commencement of the Order, organise class or classes of posts in the civil services of, and class or classes of civil posts, under the State into different local cadres for different parts of the State in the manner therein provided. It is already seen that through G.O. Ms. No. 581, the State Government in fact had organised the Commercial Taxes Departments by constituting different local cadres and Warangal zone comprised of the four revenue districts, namely, Adilabad, Karimnagar, Khammam and Warangal was declared as local area for local cadres of the Department. Having done so, the question emerged whether the State Government has further power to reorganise the local cadre within the zone. In our considered view, we have no hesitation to hold that once the State Government has organised the class or classes of posts in the civil services of and class or classes of civil posts, under the State as local cadres, it ceases to have any power to bifurcate or reorganise a zone within a zone, cadre or cadres therein. In exercise of the power under proviso to paragraph 3(1), it is for the President notwithstanding the expiry of the period of twelve months prescribed in sub-paragraph (1) of paragraph 3, by an order require the State Government whenever he considers it expedient so to do to have the power under paragraph 3(1) exercised. Thereby, it is clear that the State Government shall have to place necessary material before the President; the President shall consider that it is expedient to organise any class or classes of 573 posts in the civil services of and class or classes of civil posts, under the State into a further local cadre within the local cadre in the zone already prescribed and to pass an order in that regard requiring the State Government to so organise it. It is made clear that for the purpose of efficient administration or convenience, the State Government may create division/divisions within the local area or local cadre. But for the purpose of recruitment, seniority, promotion, discharge, etc. the local cadre once organised under para 3(1) shall be final and continue to be operative until action is taken under proviso to subparagraph (1) of paragraph 3 of the Order. When we enquired the learned counsel for the State, Shri Madhava Reddy candidly conceded that no order of the President, as provided under the proviso, was made. Therefore, the action taken by the State Government in issuing G.O.Ms. No. 1648 dated November 20, 1982 is clearly illegal and invalid contravening the proviso to sub-paragraph (1) of paragraph 3, undoubtedly it contravened para 4 of the Order.

30. It was contended that for promotion from the post of Senior Assistant to the post of Assistant Commercial Tax Officer, zonal seniority of Warangal local area comprising of Warangal, Khammam, Karimnagar and Adilabad is the criteria. Adilabad Division consisting of Adilabad and Karimnagar districts of Commercial Tax department cannot be treated to be a zone and divisional seniority prepared by the department is bad in law. The Honble Supreme Court has held that creation of a Division and maintaining separate seniority of Junior Assistants and Senior Assistants for Adilabad and Warangal Division are illegal and contrary to the orders issued in GO.Ms.No.581 and the AP Public Employment (Organization of local cadres and Regulation of Direct Recruitment) Order, 1975. The State had attempted to meddle with organized zonal cadre and intended to carve out zone within a zone. Under these circumstances, the Honble Supreme Court held that State has no power to meddle with the posts organized under the Presidential Order. No such attempt is made in the case on hand.

31.The Government of AP intended to bring out a unified cadre of teachers in the government, Mandal Parishad and Zilla Parishad schools. In fact, in the earlier round of litigation i..e, in the case of M.KESHAVULU vs. STATE OF A.P. reported in 2003 (6) ALD 522 and in the case of GOVERNMENT OF ANDHRA PRADESH vs. P. VEMA REDDY reported in 2007 (3) ALT 287, the Honble High Court interfered with the matter and the matter is carried in appeal to the Honble Supreme Court and pending before the Honble Supreme Court. The Honble High Court has struck down Act.27/2005 which intended to integrate cadres of teachers and other employees in Government, Mandal Parishad and Zilla Parishad schools.

32.It further held that Section 3(1) and 4(1) of the Act 27/2005 in effect abolish local cadres through a circuitous process of abolishing cadres which were organized into local cadres and in effect abolishing the local cadres themselves.

33.These Judgments cannot be of any relevance. It is a settled principle in the law of precedents that judgments are to be read in