CASE NO.: Appeal (civil) 9643-9644 of 1995 PETITIONER: V. JAGANNADHA RAO & ORS. Vs. RESPONDENT: STATE OF A.P. & ORS. DATE OF JUDGMENT: 07/11/2001 BENCH: G.P. PAttanaik, Ruma Pal & Arijit Pasayat JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
1. Doubting correctness of the view expressed in two decisions rendered
by two Honble Judges in State of Andhra Pradesh and Anr. vs. V.
Sadanandam & Ors. (1989 Supp. (1) SCC 574) and Govt. of A.P. & Anr.
vs. B. Satyanarayana Rao (Dead)by Lrs. & Ors. (2000 (4) SCC 262)
regarding scope and ambit of para 5(2) of the Presidential Order issued
under Article 371-D of the Constitution of India 1950 (in short the
Constitution) a reference has been made to a three Judges Bench, and that
is how the matter was listed before us.
The question for consideration in these appeals is whether the
judgment of Andhra Pradesh Administrative Tribunal (in short Tribunal)
striking down certain provisions of the Special Rules framed under Article
309 of the Constitution holding them to be violative of the Presidential
Order issued under Article 371D of the Constitution is correct.
2. Background facts in a nutshell are as under:-
Prior to the formation of the State of Andhra Pradesh on 1.11.1956
and thereafter, the Labour and Factories Department consisted of 3 units,
namely, Labour, Factories and Boilers. The employees belonging to the
ministerial cadres in all the 3 units had a channel of promotion to higher
non-technical executive posts like Assistant Inspector of Labour, District
Inspector of Labour etc. Further promotional avenues led to the posts of
Assistant Commissioner of Labour, Deputy Commissioner of Labour, Joint
Commissioner of Labour and Additional Commissioner of Labour. On
16.9.1963 Factories Unit in the department was bifurcated and subjects
relating to Shops and Establishment Act, Minimum Wages Act, Motor
Transport Workers Act and Payment of Wages Act in respect of non-factory
establishments were transferred to the Labour unit. On 8.12.1965 one more
unit, namely, Establishment Unit was created in the Labour Department by
transferring non-technical posts of District Inspector of Labour (re-
designated as Labour Officer) and Assistant Inspector of Labour (re-
designated as Assistant Labour Officer) from the Factories Wing. Prior to
this arrangement the aforesaid non-technical posts were under the control of
the Factories Wing. On 15.9.1966 Government issued Rules under the
proviso to Article 309 making Superintendents in the Factories and Boilers
Wings and Assistant Inspectors of Labour retained in that Wing (re-
designated as Assistant Inspector of Factories) eligible for appointment by
transfer as District Inspector of Labour (now Labour Officer). On 28.1.1971
Government ordered that the ministerial staff in all the 4 units, namely,
Labour, Factories, Boilers and Establishment at the headquarters were to be
treated as one unit. On 6.8.1974 Government ordered that the Factories and
Boilers units were to function with Chief Inspector of Factories and Boilers
as the head of the department, and the Labour and Establishment units were
to function under the control of Commissioner of Labour. It was clarified
that the ministerial staff in all the 4 units were eligible for appointment by
transfer to the post of Assistant Inspector of Labour (re-designated as
Assistant Labour Officer) and District Inspector of Labour (re-designated as
Labour Officer). On 18.10.1975 the Presidential Order was issued under
Article 371-D of the Constitution to provide for equitable opportunities and
facilities for the people belonging to different parts of the State in the matter
of public employment, education etc. On 20.5.1976 ministerial posts of
Factories and Boilers Department were organized into Local cadres pursuant
to the Presidential Order. Similarly, the posts in the Labour Department
were also organised into local cadres. On 11.5.1977 posts of Labour
Enforcement Officer (previously designated as Deputy Inspector of Labour
and subsequently re-designated as Labour Officer) were organized into
multi-zone cadre posts. On 2.9.1977 by the Rules made under proviso to
Article 309, UDCs of the Labour Department and Factories and Boilers
Department were made eligible for recruitment by transfer to the posts of
Assistant Inspector of Labour/Assistant Inspector of Factories. On
20.7.1982 in G.O.503 the Government directed that the concessions given in
G.O.607 dated 6.8.1974 to the effect that the ministerial staff in the Factories
and Boilers Department shall be eligible for appointment by transfer to the
post of Assistant Inspector of Labour (Assistant Labour Officer) and District
Inspector of Labour (Labour Officer) shall continue to the last person in the
department as on 20.7.1982 and the concession will be withdrawn in respect
of persons appointed thereafter in the Factories and Boilers department. The
said concession was extended to the last person in the department by a
memorandum dated 19.5.1983. By G.O.Ms.No.72 Government issued
Rules under proviso to Article 309 making Senior Assistant belonging to the
Factories and Boilers departments as well as Labour department eligible for
appointment by transfer to the post of Assistant Labour Officer/Assistant
Inspector of Factories. These were treated to be zonal non-gazetted posts,
unit of appointment being the zone. In G.O. Ms 170 Rules under proviso to
Article 309 were issued constituting the posts of Labour Officer into multi-
zonal cadre posts.
3. Ministerial employees of the Labour department challenged the Rules
issued in G.O.Ms 72 dated 25.2.1986 and G.O.Ms.117 dated 28.5.1986
before the Tribunal. A Full Bench of the Tribunal allowed the petitions and
declared that the impugned Rules to the extent they enable the ministerial
employees of the Factories and Boilers department or any other department
to be considered for appointment to the posts in Labour department are
violative of paras 3 and 5 of the Presidential Order and, therefore, were void.
However, liberty was given to the Government to create posts in the
Factories and Boilers Departments for persons who were regularly appointed
more than 3 years prior to the filing of the petitions before the Tribunal in
the Executive posts in Labour Department, without affecting the rights of the
employees of the Labour Department in the respective zones.
4. Tribunals conclusions essentially are as follows:-
The Presidential Order was enforced on 18.10.1975. The post of
Senior Assistant is required to be organised in a zonal cadre and for the
Labour Department there has to be an additional city cadre. Organising
cadre in each department under para 3 includes determination of cadre
strengths both in respect of permanent and temporary posts. In accordance
with definition of cadre in the fundamental rules the first step which was
required to be taken for implementation of the Presidential Order was
localization of cadres by determining cadre strength of each post required to
be organised in local cadre. In Schedule Two of the Presidential Order, the
requirements indicated include geographical spread of the zone and the ratio
and also the administrative needs of the department. The local cadre is the
unit under para 5(1) of the Presidential Order for recruitment, appointment,
seniority, promotion and transfer. Therefore, the zone is the unit for the
organised cadre of the zone. Para 9 speaks of the carry forward of a post and
not a vacancy. According to para 5(1) the essential cadre of the department
will be unit for the purpose of recruitment, appointment, seniority,
promotion, transfer etc. Even a transfer to an equivalent post is required to
be restricted within the zone. Para 5(2) enables to the State Government to
make provisions for transfer of a person from and to a post in a category and
a post in the same category outside the zonal cadre. It is to be noted that the
essential cadre of each department is the unit not only for direct recruitment
but also for recruitment by transfer, seniority and promotion in the
department. An additional feeder category of ministerial employees
organised in six separate cadres of another department will violate the
requirements of para 3(3) and 5(1), as the seniority in the departmental cadre
should be the criteria for the purposes of promotion and appointment to
higher posts in the department. Accordingly, the Rules were held to be
violative of Article 371-D.
5. When the matter was placed for hearing after grant of leave reliance
was placed by learned counsel for the appellants on the decisions in V.
Sadanandam (supra) and B. Satyanarayana Rao (supra) to contend that this
Court has upheld similar provisions which have been struck down by the
Tribunal as void. However, the Bench hearing the appeals expressed doubt
about the correctness of the view expressed in these cases and as noted
above the appeals were directed to be placed before a 3 Judges Bench.
6. Mr. P.N. Mishra, learned senior counsel appearing for the appellants
submitted that the two decisions referred to above were squarely applicable
to the facts of this case. In any event the Rules have been made in
consonance with the Presidential Order and there is no inconsistency. Para
5(2) of the Presidential Order authorises the State Government to pass
necessary orders in the circumstances indicated in the said paragraph.
According to him, public interest is paramount in the case and taking into
account the background facts it was felt by the Government that in order to
provide for equitable opportunities and facilities for the people belonging to
different parts of the State in the matter of public employment, impugned
Rules were formulated. If the interpretation by the Tribunal is accepted it
would mean the denial of opportunities and would be against the very spirit
of the Presidential Order. It was also submitted that the expression transfer
used in para 5(2) has to be given a wider meaning, and promotional
prospects are clearly inter-linked and cannot be divested from a transfer. If
necessary, according to him, a purposive interpretation has to be made.
Per contra, learned counsel appearing for the respondents who were
the petitioners before the Tribunal submitted that the very object of the
Presidential Order is to provide better employment facilities to persons of
neglected areas and the scope for a departure is rather limited and if the State
wanted to make a departure it is authorized to do so within the four corners
of the prescriptions in the Presidential Order. Transfer according to him, is
permissible in respect of similar posts, and by no stretch of imagination this
is permissible to include a promotional prospect or avenue.
7. Learned counsel for the State of Andhra Pradesh submitted that
though it is contended by appellant about States stand before the Tribunal
being correctness of the impugned Rules, yet on a closer reading of the
provisions it has been noticed that the Tribunals Judgment does not suffer
from any infirmity and, therefore, appeals were not filed by the State. It is
also pointed out that supernumerary posts have been created to effectuate
the Tribunals judgment.
In order to appreciate the rival submissions, it would be necessary to
note a few statutory provisions which have reliance so far as the dispute is
concerned. Article 371-D so far as relevant reads as follows:-
371D.(1) The President may by order made with respect
to the State of Andhra Pradesh provide, having regard to
the requirements of the State as a whole, 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, and different
provisions may be made for various parts of the State.
(2) An order made under clause (1) may, in particular .
(a) require the State Government to organize any class
or classes of posts in a civil service of, or any class or
classes of civil posts under, the State into different local
cadres for different parts of the State and allot in
accordance with such principles and procedure as may be
specified in the order the persons holding such posts to
the local cadres so organized;
(b) specify any part or parts of the State which shall be
regarded as the local area –
(i) for direct recruitment to posts in any local cadre
(whether organised in pursuance of an order under
this Article or constituted otherwise) under the
State Government;
(ii) for direct recruitment to posts in any cadre under
any local authority within the State; and
(iii) for the purposes of admission to any University
within the State or to any other educational
institution which is subject to the control of the
State Government;
specify the extent to which, the manner in which
and the conditions subject to which, preference or
reservation shall be given or made
(i) in the matter of direct recruitment to posts in any
such cadre referred to in sub-clause (b) as may be
specified in this behalf in the order;
(ii) in the matter of admission to any such University
or other educational institution referred to in sub-
clause (b) as may be specified in this behalf in the
order, to or in favour of candidates who have
resided or studied for any period specified in the
order in the local area in respect of such cadre,
University or other educational institution, as the
case may be.
(3) The President may, by order, provide for the
constitution of an Administrative Tribunal for the State
of Andhra Pradesh to exercise such jurisdiction, powers
and authority [including any jurisdiction, power and
authority which immediately before the commencement
of the Constitution (Thirty-second Amendment) Act,
1973, was exercisable by any court (other than the
Supreme Court) or by any tribunal or other authority] as
may be specified in the order with respect to the
following maters, namely:-
(a) appointment, allotment or promotion to such class
or classes of posts in any civil service of the State,
or to such class or classes of civil posts under the
State, or to such class or classes of posts under the
control of any local authority within the State, as
may be specified in the order;
(b) seniority of person appointed, allotted or promoted
to such; class or classes of posts in any civil
service of the State, or to such class or classes of
civil posts under the State, or to such class or
classes of posts under the control of any local
authority within the State, as may be specified in
the order;
such other conditions of service of persons
appointed, allotted or promoted to such class or
classes of posts in any civil service of the State or
to such class or classes of civil posts under the
State or to such class or classes of posts under the
control of any local authority within the State, as
may be specified in the order.
(4) ..
(5) ..
(6) ..
(7) ..
(8) ..
(9) Notwithstanding any judgment, decree or order of
any court, tribunal or other authority
(a) no appointment, posting, promotion or transfer of
any person
(i) made before the 1st day of November, 1956, to any
post under the Government of, or any local
authority within, the State of Hyderabad as it
existed before that date; or
(ii) made before the commencement of the
Constitution (Thirty-second Amendment) Act,
1973, to any post under the Government of, or any
local or other authority within the State of Andhra
Pradesh; and
(b) no action taken or thing done by or before any
person referred to in sub-clause (a), shall be deemed to be
illegal or void or ever to have become illegal or void
merely on the ground that the appointment, posting,
promotion or transfer or such person was not made in
accordance with any law, then in force, providing for any
recquirement as to residence within the State of
Hyderabad or, as the case may be, within any part of the
State of Andhra Pradesh, in respect of such appointment,
posting, promotion or transfer.
(10) The provisions of this Article and of any order
made by the President thereunder shall have effect
notwithstanding anything in any other provision of this
Constitution or in any other law for the time being in
force.
Impugned Rules: (so far as relevant read as follows).
O R D E R
The following notification shall be published in the
Andhra Pradesh Gazette:-
NOTIFICATION
In exercise of the powers conferred by the proviso
to Article 309 of the Constitution of India, the Governor
of Andhra Pradesh hereby makes the following Special
Rules for the posts of Assistant labour Officers in the
Andhra Pradesh Labour Subordinate Services:
The rules hereby made shall be deemed to have
come into force with effect from the 2nd September,
1985;
RULES
1. CONSTITUTION: this category shall consist of
Assistant Labour Officers including Labour Inspectors of
factories in the Andhra Pradesh Labour Subordinate
Service.
2. APPOINTMENT: Appointment to the category
shall be made :
(i) by direct recruitment;
(ii) by recruitment by transfer from the
categories of senior assistants and senior
stenographers of the Labour Department and
Factories and Boilers Department in the
Andhra Pradesh Ministerial Services
restricted to those working in the zones in
which the vacancies arise;
(iii) by recruitment by transfer from among the
personnel working in the Labour Welfare
Centres of the Labour Department under the
Andhra Pradesh General Subordinate
Service, restricted to those working in the
zones in which the vacancies arise.
Provided that all appointments by transfer to the
category shall be made on grounds of seniority cum
efficiency.
Provided further that among the senior assistants,
senior stenographers and the personnel working in the
Labour Welfare Centres, in the Labour Department, the
appointment to the post of Assistant Labour Officers
shall be made in the ratio of 8:1:1 respectively in the
following rotation:-
1. Senior Assistant
2. Senior Assistant
3. Senior Assistant
4. Labour Welfare Centre Staff
5. Senior Assistant
6. Senior Assistant
7. Senior Assistant
8. Senior Stenographer
9. Senior Assistant
10. Senior Assistant;
Provided also that in a unit of 10 vacancies other
than leave vacancies, the 1st, 4th, 7th and 10th vacancies
shall be filled in by direct recruitment and the remaining
six vacancies shall be filled in the appointment by
transfer.
Provided also that among the Senior Assistants and
senior Stenographers of the Directorate and the senior
assistants and senior stenographers of the subordinate
offices, the appointment shall be in the ratio of 2:3
respectively in the following rotations:
1st vacancy – Subordinate Office
2nd vacancy – Directorate Office
3rd vacancy – Subordinate Office
4th vacancy – Directorate Office
5th vacancy – Subordinate Office
Provided also that if an eligible candidate
belonging to Directorate Office or Subordinate Office
including Labour Welfare Centre Staff, is not available
for appointment in the turn allotted for them in the order
of rotation, the turn allotted for them in the order of
rotation, the turn shall lapse and the vacancy shall be
filled in by candidate of next turn in the order of rotation.
3. APPOINTING AUTHORITY: the Deputy
Commissioner of Labour in the respective zones
concerned shall be the appointing authority for the posts
of Assistant Labour Officers.
4. UNIT OF APPOINTMENT: For the purposes of
recruitment, appointment, discharge for want of
vacancy, seniority, promotion, transfer and
appointment as full member, there shall be seven
separate units as detailed below:
ZONE I : Comprising the districts of
Srikakulam, Vizianagaram and Visakhapatnam.
ZONE – II : Comprising the districts of East
Godavari, West Godavari and Krishna.
ZONE III : Comprising the districts of
Guntur, Prakasam and Nellore.
ZONE IV : Comprising the districts of
Kurnool, Cuddapah, Anantapur and Chittor.
ZONE V : Comprising the districts of
Adilabad, Karimnagar, Warangal and Khammam.
ZONE VI : Comprising the districts of
Ragareddy, Nalgonda, Mahaboobnagar, Medak
and Nizamabad.
ZONE VII : Twin cities of Hyderabad and
Secundrabad.
PRESIDENTIAL ORDER : (so far as relevant) reads as
follows:
The following Order of President of India,
G.S.R. 524 (E), dated the 18th October, 1975 is
republished :-
THE ANDHRA PRADESH PUBLIC EMPLOYMENT
(ORGANISATION OF LOCAL CADRES AND
REGULATION OF DIRECT RECRUITMENT)
ORDER, 1975.
ORDER
G.S.R. 524(e): – In exercise of the powers
conferred by clauses (1) and (2) of articles 371-D of the
Constitution, the President hereby makes, with respect to
the State of Andhra Pradesh, the following Order,
namely:-
1. Short title, extent and commencement (i) This
Order may be called the Andhra Pradesh Public
Employment (Organisation of Local Cadres and
Regulation of Direct Recruitment) Order, 1975.
(2) It extends to the whole of the State of
Andhra Pradesh.
(3) It shall come into force at once.
2. Interpretation (1) In this Order, unless the
context otherwise requires
(a).
(b)
local area, in relation to any local cadre, means
the local area specified in paragraph 6 for direct
recruitment to posts in such local cadre, and
includes, in respect of posts belonging to the
category of Civil Assistant Surgeons, the local
areas specified in sub-paragraph (5),of paragraph 8
of this Order;
(d) local authority; does not include any local
authority which is not subject to the control of the
State Government;
(e) local cadre means any local cadre of posts
under the State Government organised in
pursuance of paragraph 3, or constituted otherwise,
for any part of the State;
(f) local candidate in relation to any local area,
means a candidate who qualifies under paragraph 7
as a local candidate in relation to such local area;
(g)..
(h) Schedule means a Schedule appended to this
Order;
(i)..
(j)..
(k)State Government means the Government of
Andhra Pradesh.
(l).
(m)Zone means a zone specified in the Second
Schedule comprising the territories mentioned
therein;
(2) The General Clauses Act, 1897 (10 of 1897)
applies for the interpretation of this Order as it
applies for the interpretation of a Central Act.
(3) Organisation of local cadre
(1) The State Government shall, within a
period of twelve months from the
commencement of this Order, organize
classes of posts in the civil services of, and
classes of civil posts under, the State into
different local cadres for different parts of
the State to the extent, and in the manner,
hereinafter provided.
(2) The posts belonging to the category of
lower division clerk, and to 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 a
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 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 organised 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-paragraphs (3) and (4), the State
Government may, where it considers it
expedient so to do and with approval of the
Central Government, organize the posts
belonging to any of the categories referred
to therein, in any department, or any
establishment thereof, in two or more
continuous zones into a single cadre.
(6)..
(7) In organizing 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 organizing 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 organize 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. ..
5. Local cadres and transfer of persons:
(1) Each part of the State, for which a local
cadre has been organised in respect of any
category of posts, shall be a separate unit for
purposes of recruitment, appointment, discharge,
seniority, promotion and transfer, and such other
matters as may be specified by the State
Government, in respect of that category of post.
(2) Nothing in this Order shall prevent the State
Government from making provisions for :
(a) the transfer of a person from any local
cadre to any Office or Establishment to
which this Order does not apply, or vice-
versa;
(b) the transfer of a person from a local
cadre comprising posts in any Office or
Establishment exercising territorial
jurisdiction over a part of the State to any
other local cadre comprising posts in such
part, or vice-versa; and
the transfer of a person from one local
cadre to another local cadre where no
qualified or suitable person is available in
the latter cadre or where such transfer is
otherwise considered necessary in the public
interest.
6. Local areas:
(1) Each district shall be regarded as a local area
(i) for direct recruitment to posts in any
local cadre under the State Government
comprising all or any of the posts in any
department in that district belonging to the
category of a lower division clerk or to any
other category equivalent to or lower than
that of a lower division clerk;
(ii) for direct recruitment to posts in any
cadre under any local authority within that
district, carrying a scale of pay, the
minimum of which does not exceed the
minimum of the scale of pay of a lower
division clerk or a fixed pay not exceeding
that amount.
(2) Each Zone shall be regarded as a local area;
(i) for direct recruitment to posts in any
local cadre under the State Government
comprising all or any of the posts in any
department in that zone belonging to any
non-gazetted category other than those
referred to in such paragraph (1);
(ii) for direct recruitment to posts in any
local cadre comprising all or any of the posts
in any department in that zone belonging to
the categories of Tahsildars and Junior
Engineers;
(iii) for direct recruitment to posts in any
cadre under any local authority within that
zone, carrying a scale of pay, the minimum
of which exceeds the minimum of the scale
of pay of a lower division clerk but does not
exceed Rs.480/- per mensem; or a fixed pay
which exceeds the minimum of the scale of
pay of a lower division clerk but does not
exceed Rs.480/- per mensem;
8. The object of enacting Article 371-D appears to be two-fold:-
(1) To promote equal development of the backward areas of the
State of Andhra Pradesh, so far as to secure balanced
development of the State as a whole.
(2) To provide equitable opportunities to different areas of the State
in the matter of education, employment and career prospects in
public service.
This was observed to be so in Chief Justice of Andhra Pradesh vs.
L.V.A. Dikshitulu (AIR 1979 SC 193).
9. It is to be noted that para 5(1) of the Presidential Order is in terms of
para 3(3) thereof. Para 3(3) postulates that each department in each zone
shall be organised into a separate cadre. Para 5(1) speaks of separate unit for
purposes of recruitment, appointment, discharge, seniority, promotion and
transfer and such other matters as may be specified by the State Government
in respect of the category of posts and each part of the State for which local
cadre has been organised in respect of any category of posts is required to
have a separate unit for the aforesaid purposes. Para 5(2) is in the nature of
an enabling provision which authorizes the State Government to make
provisions for transfer in certain specified circumstances. The present
dispute relates to para 5(2) ©. It speaks of a transfer. Attempt of the
appellants is to give enlarged meaning to the expression to include
promotional aspects. It has been contended in that context that though para
5(1) treats promotion and transfer separately, yet that distinction would not
be applicable to cases covered by para 5(2). The contention is clearly
untenable.
10. Transfer in relation to service reduced to simple terms means a change
of place of employment within an organization, as stated in New Oxford
English Dictionary , 1993 Edition, Vol.2, p.3367. It is an incidence of public
service and generally does not require the consent of the employee. In most
service rules, there are express provisions relating to transfer. For example,
Fundamental Rule 15 provides:
F.R.15(a) The President may transfer a Government
servant from one post to another; provided that except
(1) on account of inefficiency or misbehaviour, or
(2) on his written request,
a Government servant shall not be transferred
substantively to, or, except in a case covered by Rule 49,
appointed to officiate in a post carrying less pay than the
pay of the permanent post on which he holds a lien, or
would hold a lien had his lien not been suspended under
Rule 14.
(b) Nothing contained in clause (a) of this Rule or in
clause (13) of Rule 9 shall operate to prevent the re-
transfer of a Government servant to the post on which he
would hold a lien, had it not been suspended in
accordance with the provisions of clause (a) of Rule 14.
Service rules sometimes define transfer. For example, supplementary
Rule 2(18) of the Fundamental Rules governing Central Government
servants defines transfer in the following terms:
Rule 2(18): Transfer means the movement of a
Government servant from one headquarter station in
which he is employed to another such station, either
(a) to take up the duties of a new post, or
(b) in consequence of change of his headquarter.
Though, definitions may differ and in many cases transfer is conceived in
wider terms as a movement to any other place or branch of the organization,
transfer essentially is to a similar post in the same cadre as observed by this
Court in B. Varadha Rao vs. State of Karnataka (AIR 1987 SC 287). It is
now well settled that a government servant is liable to be transferred to a
similar post in the same cadre which is a normal feature and incidence of
government service and no government servant can claim to remain in a
particular place or in a particular post unless, of course, his appointment
itself is to a specified non-transferable post. No transfer is made to a post
higher than what a Government servant is holding. In other words, it is
generally a lateral and not vertical movement within the employers
organization.
11. Strong reliance has been placed in para 15 of Sadanandams case
(supra) for contending that transfer also includes promotion. The para reads
as follows:
In the first place, we must point out that the Tribunal
has failed to construe para 5(2) of the Presidential Order
in its proper perspective and give full effect to the powers
conferred thereunder on the State Government to make
provisions contrary to the scheme of local cadres
prescribed under para 5(1). The words of sub-para (2) of
para 5 viz. nothing in this order shall prevent the State
Government from making provision for sets out the
overriding powers given to the State Government under
the sub-para. Such overriding powers have been given to
the State Government in express terms in recognition of
the principle that public interest and administrative
exigencies have precedence over the promotional
interests of the members belonging to local cadres and
zones. Since para 5(2) also forms a part of the
Presidential Order, it forms part of the scheme envisaged
for creating local cadres and zones. The Tribunal was,
therefore, in error in taking the view that if the State
Government was to exercise its powers under para 5(2)
and make provision for promotion of U.D. Assistants in
the Directorate and Assistant Section Officers in the
Secretariat to be transferred to posts in zones I to IV, it
will be the very negation of the creation of cadres and
zones under para 5(1) and it will be destructive of the
scheme underlying the Presidential Order. In fact the
Tribunal has realized the operative force of para 5(2) to
some extent but it has failed to give full effect to its
realization of the scope of Section 5(2). In para 12 of its
judgment in R.P.No. 1595 of 1983 the Tribunal has
stated that since the amended rule refers to para 5(2) of
the Presidential Order it will no longer be open to the
petitioners to attack the amendment as was done in
respect of the earlier amendment in the previous R.P.
The Tribunal has thus noticed that the amended rule has
been brought about by the government in exercise of its
powers under para 5(2) but it has failed to draw the
logical inference following therefrom.
It is to be noted that in the second case relied upon by the learned
counsel for the appellants reference was made to Sadanandam case (supra)
and there was no independent analysis of the legal provisions.
12. We find that para 5(2) of the Presidential Order speaks of transfer and
not of promotion. It would be hazardous to accept the contention of the
appellants that promotion is included in the expression transfer and no
assistance can be availed from the distinction made in para 5(1) of the Order.
No provisions or word in a statute has to be read in isolation. In fact, the
statute has to be read as a whole. A statute is an edict of the legislature. It
cannot be said that without any purpose the distinction was made in para
5(1) between transfer and promotion and such distinction was not intended
to be operative in para 5(2). The intention of the legislature is primarily to
be gathered from the language used, which means that attention should be
paid as to what has been said as also to what has not been said. See Mohd.
Ali Khan vs. Commissioner of Wealth Tax, New Delhi (AIR 1997 SC 1165)
and Institute of Chartered Accountants of India vs. M/s. Price Water House
(AIR 1998 SC 74). As a consequence a construction which requires for its
support addition or substitution of words or which resorts for rejection of
words as meaningless has to be avoided. As stated by the Privy Council in
Robert Wigram Crawford vs. Richard Spooner (1846 (6) Moore PC 1) We
cannot aid the Legislatures defective phrasing of an Act, we cannot add or
mend and, by construction make deficiencies which are left there. The
aforesaid decision was referred to by this Court in State of Gujarat and Ors.
vs. Dilipbhai Nathjibhai Patel & Anr. (JT 1998 (2) SC 253). It is contrary to
all rules of construction to read words into an Act unless it is absolutely
necessary to do so. (See Stock vs. Frank Jones (Tiptan) Ltd. (1978 [1]
All.ER 948 (HL). Similarly, it is wrong and dangerous to proceed by
substituting some other words for words of the statute. (See Pinner Vs.
Everett (1969 [3] All.ER 257). In other words, there should be no attempt to
substitute or paraphrase of general application. Attention should be confined
to what is necessary for deciding a particular case. Much trouble is made by
substituting other phrases assumed to be equivalent, which then are reasoned
from as if they were in the Act. In Union of India vs. Deoki Nandan
Aggarwal (AIR 1992 SC 96), it was observed that the Court cannot refrain
the legislature for the very good reason that it has no power to legislate. It is
incumbent on the Court to avoid the construction if reasonably permissible
on the language which would render a part of the statute devoid of any
meaning or application. In the interpretation of statutes, the Courts always
presume that the Legislature inserted every part thereof for a purpose and the
legislative intention is that every part of the statute should have an effect.
We, therefore, find no reasons to accept this stand of the appellant that
the expression transfer takes within its scope a promotion.
13. We may note here that learned counsel for the State of Andhra
Pradesh submitted with reference to the counter affidavit filed in this Court
that the impugned Rules were not intended to carve out a class of employees
in terms of para 5(2)for public interest. That being the position, we need
not go into the question whether a consideration on a case to case basis is
called for in terms of para 5(2).
13. 14. In Sadanandams case (supra), while considering the legality of
amended provisions of the Rules framed by the State Government and in
sustaining the same, this Court was of the opinion that as the aforesaid rules
had been framed under Section (3) of the Andhra Pradesh Ordinance 5 of
1983 read with paragraph 5(2)(a) of the Presidential Order, the conclusion of
the Tribunal in striking down the rule is erroneous. The Court was of the
opinion that mode of recruitment and category from which the recruitment
to a service should be made are policy matters exclusively within the
purview and domain of the executive and it would not be appropriate for
judicial bodies to sit in judgment over the wisdom of the executive in
choosing the mode of recruitment or the categories from which the
recruitment should be made. In our considered opinion, both the aforesaid
reasons do not constitute a true interpretation of the provisions of the
Presidential Order. At the outset, it may be noticed that Article 371-D (10)
of the Constitution unequivocally indicates that the said Article and any
order made by the President thereunder shall have effect notwithstanding
anything in any other provision of the Constitution or in any other law for
the time being in force. Necessarily, therefore, if it is construed and held that
the Presidential Order prohibits consideration of the employees from the
feeder category from other units then such a rule made by the Governor
under the proviso to Article 309 of the Constitution will have to be struck
down. Then again in exercise of powers under paragraph 5(2) of the
Presidential Order if the State Government makes any provision, which is
outside the purview of the authority of the Government under para 5(2) of
the Order itself, then said provision also has to be struck down. Having
construed the rules framed by the Governor under proviso to Article 309 of
the Constitution from the aforesaid stand point, the conclusion is irresistible
that the said rule to the extent indicated by the Tribunal is constitutionally
invalid and its conclusion is unassailable. In the case in hand, the impugned
provisions do not appear to have been framed in exercise of powers under
paragraph 5(2) of the Presidential Order and as such the same being a rule
made under proviso to Article 309 of the Constitution, the Presidential Order
would prevail, as provided under Article 371-D (10) of the Constitution.
Even if it is construed to be an order made under Paragraph 5(2) of the
Presidential Order, then also the same would be invalid being beyond the
permissible limits provided under said paragraph. In this view of the matter,
the Tribunal rightly held the provision to the extent it provides for
consideration of employees of the Factories and Boilers units to be invalid,
for the purpose of promotion to the higher post in the Labour unit and as
such we see no justification for our interference with the said conclusion of
the Tribunal and the earlier judgment of this Court in Sadanandams case
(supra) must be held to have not been correctly decided. As a consequence,
so would be the case with Satyanarayana Raos case (supra).
15. Notwithstanding our aforesaid conclusion, it would be in the interest
of the Administration to have a channel of promotion for every service, so
as to avoid stagnation at a particular level, subject however to the condition
that the incumbents of a service are otherwise qualified to shoulder the
responsibilities of the higher promotional post. The appropriate authority of
the Government, therefore, should bear this in mind and consider the
feasibility and desirability of continuing the supernumerary posts already
created in the Boilers and Factories Department on a permanent basis, so
that the employees from the lower echelon in the said Department have a
promotional channel or, to make suitable promotional avenue at least upto
some level, so that there would not be any discontentment amongst the
employees in the concerned Department.
The appeals are without any merit and are accordingly dismissed.
..J.
(G.B. PATTANAIK)
..J.
(RUMA PAL)
.J.
(ARIJIT PASAYAT)
November 7, 2001
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