{"id":239025,"date":"1990-02-23T00:00:00","date_gmt":"1990-02-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-prakasha-rao-and-anr-vs-commissioner-of-commercial-taxes-on-23-february-1990"},"modified":"2015-07-20T00:13:17","modified_gmt":"2015-07-19T18:43:17","slug":"s-prakasha-rao-and-anr-vs-commissioner-of-commercial-taxes-on-23-february-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-prakasha-rao-and-anr-vs-commissioner-of-commercial-taxes-on-23-february-1990","title":{"rendered":"S. Prakasha Rao And Anr vs Commissioner Of Commercial Taxes … on 23 February, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S. Prakasha Rao And Anr vs Commissioner Of Commercial Taxes … on 23 February, 1990<\/div>\n
Equivalent citations: 1990 AIR 997, \t\t 1990 SCR (1) 561<\/div>\n
Author: S Agrawal<\/div>\n
Bench: Agrawal, S.C. (J)<\/div>\n
           PETITIONER:\nS. PRAKASHA RAO AND ANR.\n\n\tVs.\n\nRESPONDENT:\nCOMMISSIONER OF COMMERCIAL TAXES AND ORS.\n\nDATE OF JUDGMENT23\/02\/1990\n\nBENCH:\nAGRAWAL, S.C. (J)\nBENCH:\nAGRAWAL, S.C. (J)\nMISRA RANGNATH\nPUNCHHI, M.M.\n\nCITATION:\n 1990 AIR  997\t\t  1990 SCR  (1) 561\n 1990 SCC  (2) 259\t  JT 1990 (3)\t 40\n 1990 SCALE  (1)456\n CITATOR INFO :\n RF\t    1991 SC2113\t (12)\n\n\nACT:\n    Constitution  of  India,  Article  371-D\/Andhra  Pradesh\nPublic Employment (Organisation of Local Cadres and  Regula-\ntion of Direct Recruitment) Order, 1975: Para 3(1),  proviso\nand  paras 3(7), 4 & 5( i)--A. P. Commercial  Taxes  Depart-\nment--Local  Cadres of Junior Assistants and Senior  Assist-\nants  organised for Warangal Zone for seniority\t and  promo-\ntion--State   Government  subsequently\tcreating   divisions\nwithin the zone and reallocating employees--Validity of.\n\n\n\nHEADNOTE:\n    Article  371-D brought into the Constitution by  Thirty-\nsecond\tAmendment Act, 1973, with effect from July  1,\t1974\nempowered  the President in respect of the State  of  Andhra\nPradesh\t by an Order (1) to require the State Government  to\norganise  any class or classes of posts in a  civil  service\nof, or any class or classes of civil posts under, the  State\ninto different local cadres for different parts of the State\nand  allot  the\t persons holding such  posts  to  the  local\ncadres,\t and (2) to specify any part or parts of  the  State\nwhich  shall  be regarded as the local area for\t direct\t re-\ncruitment to posts in any local cadre.\n    In\texercise  of the power so  conferred  the  President\nissued the Andhra Pradesh Public Employment (Organisation of\nLocal  Cadres and Regulation of Direct\tRecruitment)  Order,\n1975  on October 18, 1975. Para 3(1) of the Order  empowered\nthe  State Government to organise the local cadre  within  a\nperiod of twelve months. The term 'local cadre' was  defined\nin  para 2(1)(e) to mean any local cadre of posts under\t the\nState  Government organised in pursuance of para 3, or\tcon-\nstituted  otherwise, for any part of the State. The  proviso\nadded  to para 3(1) subsequently and published through\tG.O.\nMs. No. 34 dated January 24, 1981, empowered the  President,\nnotwithstanding\t the  expiration  of the  period  of  twelve\nmonths, to require the State Government, whenever he consid-\nered  it  expedient so to do, to organise local\t cadres\t for\ndifferent parts of the State. Para 3(7) permitted the  State\nGovernment to organise or to continue more than one cadre in\nrespect\t of any category of posts in any department for\t any\npart  of  the State. Para 4 provided mode  of  allotment  of\nemployees to local cadres. Para\n562\n5(1) declared that each part of the State for which a  local\ncadre  has  been organised, in respect of  any\tcategory  of\nposts, shall be a separate unit for purposes of recruitment,\nappointment,  discharge, seniority, promotion and  transfer.\nIn  the table in the schedule thereto the State was  divided\ninto  seven zones and zone V consisted of the  revenue\tdis-\ntricts\tof Adilabad, Karimnagar, Warangal and  Khammam.\t In-\nstructions  were issued for implementation of the  Presiden-\ntial Order through G.O.Ms. No. 728 dated November 1, 1975 in\norganising the local cadres.\n    In pursuance of para 3(1) of the Order the State Govern-\nment in Commercial Taxes Department issued order G.O.Ms. No.\n581  dated  May 24, 1976 organising zones and  the  Warangal\nZone consisted of revenue districts of Adilabad, Karimnagar,\nWarangal  and Khammam, which was co-terminus with zone V  of\nthe Presidential Order. The Junior Assistant in each revenue\ndistrict in Warangal zone was a separate district post,\t but\nfor  the purpose of promotion to the post of Senior  Assist-\nants  and  Assistant Commercial Taxes Officers,\t which\twere\nzonal  posts, common seniority of the Junior Assistants\t and\nSenior Assistants working in all the four revenue  districts\nwas  being maintained and promotion made in accordance\twith\nthe rules.\n    Subsequently,  however,  the  State\t Government  created\nseparate divisions within the zones in the Commercial  Taxes\nDepartment through G.O.Ms. No. 1900 dated December 22,\t1981\ncarving out Adilabad and Karimnagar as Adilabad Division and\nWarangal  and  Khammam as Warangal  Division.  Options\twere\ncalled\tfor and the employees allotted in G.O.Ms.  No.\t1648\ndated November 22, 1982 to the respective divisions.\n    Agrieved by the said order respondent Nos. 4 and 5 filed\na petition before the State Administrative Tribunal contend-\ning  that for promotion from Senior Assistant  to  Assistant\nCommercial  Taxes Officer zonal seniority of Warangal  local\narea comprising of Warangal, Khammam, Karimnagar and  Adila-\nbad was the criteria, that the Adilabad division  consisting\nof  Adilabad  and Karimnagar districts of  Commercial  Taxes\nDepartment  could not be treated to be a zone, and that\t the\ndivisional  seniority prepared by the department was bad  in\nlaw.  The  Tribunal held that the zonal\t seniority  was\t the\ncriteria  for purposes of promotion, and allowed  the  peti-\ntion.\n    The State Government in exercise of its power under\t cl.\n(5) of Art. 371-D annulled that order. Thereupon, respondent\nNos.  4\t and 5 filed a writ petition under Art.\t 32  of\t the\nConstitution wherein this Court\n563\ndeclared cl. (5) of Art. 371-D as ultra vires. Left with  no\nalternative  the State filed special leave petition  against\nthe original order of the Tribunal, which was dismissed.\n    Subsequently,  the appellants-beneficiaries\t of  G.O.Ms.\nNo.  1648 of 1982, filed representative petition before\t the\nTribunal, which was dismissed.\n    In the appeal by special leave it was contended for them\nthat  the  State Government continues to have  its  inherent\npower  to  organise local cadres to meet the  exigencies  of\nadministrative\tneeds, as there was no prohibition  in\tthat\nregard\tin  the Order, and that the phrase  'or\t constituted\notherwise'  engrafted in the definition of 'local cadre'  in\npara  2(1)(e)  read with para 3(7) gave ample power  to\t the\nState  Government to create a zone within the Warangal\tzone\nfor  the purpose of recruitment, seniority and promotion  in\nthe Commercial Taxes Department.\nDismissing the appeal, the Court,\n    HELD:  1.  The action taken by the State  Government  in\nissuing G.O.Ms. No. 1648 dated November 20, 1982 was illegal\nand invalid contravening the proviso to para 3(1) and para 4\nof the Presidential Order. [573C]\n    2.1 Once the State Government had organised the  Commer-\ncial Taxes Department by constituting different local cadres\nand Warangal zone comprising of the four revenue  districts,\nnamely,\t Adilabad,  Karimnagar,\t Khammam  and  Warangal\t was\ndeclared  as local area for local cadres of  the  Department\nthrough\t G.O.Ms. No. 581 dated May 24, 1976 in\texercise  of\nthe  powers under para 3(1), it ceased to have any power  to\nbifurcate  or  reorganise  a zone within a  zone,  cadre  or\ncadres therein. [572E-G]\n    2.2\t In exercise of the power under the proviso to\tpara\n3(1),  it is for the President and President alone  notwith-\nstanding  the  expiry of the period of\ttwelve\tmonths\tpre-\nscribed in para 3(1), by an order require the State  Govern-\nment whenever he considers it expedient so to do to have the\npower  under para 3(1) exercised. Therefore, the State\tGov-\nernment\t shall have to place necessary material\t before\t the\nPresident; the President shall consider that it is expedient\nto  organise  any  class or classes of posts  in  the  civil\nservices  of and class or classes of civil posts under,\t the\nState  into a further local cadre within the local cadre  in\nthe  zone  already prescribed and to pass an order  in\tthat\nregard\trequiring  the State Government to so  organise\t it.\n[572G; 573A]\n564\n    2.3 However, for the purpose of efficient administration\nor   convenience,   the\t  State\t  Government   may    create\ndivision\/divisions within the local area or local cadre. But\nfor  the purpose of recruitment, seniority, promotion,\tdis-\ncharge, etc. the local cadre once organised under para\t3(1)\nshall be final and continue to be operative until action  is\ntaken  under the proviso to para 3(1) of the Order.  In\t the\ninstant\t case, no order of the President, as provided  under\nthe proviso, was made. [573A-B]\n    3. The Presidential Order was made pursuant to the power\ngiven  under Art. 371-D, which is a special  provision\tmade\nunder  the Constitution (Thirtysecond Amendment)  Act,\t1973\npeculiar  to  the State of Andhra  Pradesh.  Therefore,\t the\nState Government had no inherent power in creating a zone or\norganising  local cadres within the zones except in  accord-\nance with the provisions of the said Order. [573D]\n    4. The phrase 'or constituted otherwise' defined in para\n2(1)(e) is only related to the power given by the  President\nto  the State Government to organise local cadre. Para\t3(1)\nis the source of that power. The said phrase is,  therefore,\nto be understood in the context and purpose which Art. 371-D\nand  the President Order seek to achieve. The State  Govern-\nment cannot create local cadres at its will. [573E; 575A]\n    Kochuni  v. States of Madras & Kerala, AIR<\/a> 1960 SC\t1080\nand  Lilavati Bai v. The State of Bombay,<\/a> [1957] SCR 721  at\n735, distinguished.\n    5. The power given to the State Government in para\t3(7)\nof the Order is only to organise a separate cadre in respect\nof  any category of posts in any department when  more\tthan\none cadre in respect of such category exists in each depart-\nment.  So, the State Government may organise one cadre\twhen\nmore  than one cadre in respect of different  categories  of\nposts  exist  in a zone under para 3(1) of  the\t Order.\t For\ninstance,  while creating local cadre co-terminus  with\t the\nadministrative\tcontrol of the Dy. Commissioner,  Commercial\nTaxes, local cadre for Senior Assistants may be created.  It\nis  also made manifest in Instruction No. 7 and 9(e) of\t the\ninstructions contained in G.O.Ms. No. 728 dated November  1,\n1975.  But  it\tis only for the\t purpose  of  administrative\nconvenience,  not for the purpose of recruitment,  seniority\nor promotion etc., as the case may be. [575C-E]\n    Thus,  the creation of a division and maintaining  sepa-\nrate seniority of Junior Assistants and Senior Assistants in\nthe  Commercial Taxes Department for adilabad  and  Warangal\nDivisions were illegal, contrary\n565\nto  order  issued in G.O.Ms. No. 581  and  the\tPresidential\nOrder. [575F]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1259  of
\n1990.\n<\/p>\n
    From  the  Judgment\t and Order dated  6.10.1989  of\t the
\nAndhra\tPradesh Administrative Tribunal in R.P. No. 2403  of
\n1987.\n<\/p>\n
Dr. L.M. Singhvi and Y.P.Rao for the Appellants.
\n    P.P.  Rao, K. Madhava Reddy, Ms. Rani Chhabra,  T.V.S.N.
\nChari and B. Rajeshwar Rao for the Respondents.
\nThe Judgment of the Court was delivered by
\nK. RAMASWAMY, J. 1. Special leave granted.
\n    This appeal under Article 136 is against the order dated
\nOctober 6, 1989 made in R.P. No. 2403 of 1987. The facts are
\nas under:\n<\/p>\n
    2.\tThe respondents Nos. 4 & 5, B. Kumara Swamy  and  G.
\nAmarender, in this appeal filed R.P. No. 1615 of 1984 before
\nthe  Andhra  Pradesh  Administrative  Tribunal,\t  Hyderabad,
\ncontending for promotion from Senior Assistant to  Assistant
\nCommercial Taxes Officer, zonal seniority of Warangal  local
\narea comprising of Warangal, Khammam, Karimnagar and  Adila-
\nbad  is\t the criteria. The Adilabad division  consisting  of
\nAdilabad  and Karimnagar Districts of the  Commercial  Taxes
\nDivision  cannot be treated to be a zone and the  divisional
\nseniority  prepared by the department is bad in law. It\t was
\nheld by the Tribunal by order dated February 18, 1986,\tthat
\nthe zonal seniority is the criteria. Though, for the  admin-
\nistrative  convenience a division consisting of the  revenue
\ndistricts  of Adilabad and Karimnagar may be treated as\t one
\ndivision  and Warangal and Khammam as Warangal division\t may
\nbe carved out, for the purpose of promotion zonal  seniority
\nhas to be maintained. Accordingly, the Tribunal allowed\t the
\nRepresentation Petition. The Government of Andhra Pradesh in
\nexercising  its power under cl. (5) of Art.  371-D  annulled
\nthat order which had given rise to filing of W.P. No. 998 of
\n1986  in this Court under Art. 32 of the Constitution.\tThis
\nCourt declared cl. (5) of Art. 371-D of the Constitution  as
\nultra vires violating the basic structure. The State Govern-
\nment filed S.L.P. No. 8868 of 1987 against order in R.P. No.
\n1615  of 1984 which was dismissed by this Court on  December
\n7, 1987. Subsequently, the petitioners impleading the
\n566<\/span>
\nrespondents  Nos. 4 and 5 and the 6th respondent,  G.  Satya
\nRao, filed R.P. No. 2403 of 1987, which was dismissed by the
\nTribunal. The appellants filed Civil Appeal No. 3203 of 1989
\nwhich was allowed by this Court and remitted to the Tribunal
\nand directed, “to examine the legal effect of the Government
\norder  in  G.O.Ms. No. 1648 dated November  20,\t 1982  after
\nagain  hearing the parties.” Thereafter, the Tribunal  after
\nconsidering  the  effects of the G.O. held that in  the\t im-
\npugned\torder  that G.O.Ms. No. 1648 was issued\t under\tPara
\n5(2)(c)\t of the Andhra Pradesh Public Employment  (Organisa-
\ntion  of Local Cadres and Regulation of Direct\tRecruitment)
\nOrder  1975 for that “the ‘order’ no allotment of  cadre  in
\nterms  of  para 4 of the order was issued. The\tG.O.Ms.\t No.
\n1648 and G.O.Ms. No. 1900 do not mention the constitution of
\nnew  local  cadre  for Adilabad Division and  no  order\t was
\nissued\tconstituting a separate cadre in terms of  ‘the\t or-
\nder’.  Accordingly, it reiterated the original\torder  dated
\nApril 29, 1988.\n<\/p>\n
    3.\tThe Constitution (Thirtysecond Amendment) Act,\t1973
\nthrough\t s.  3 thereof brought into  the  Constitution\tArt.
\n371-D  with  effect  from July 1, 1974. This  is  a  special
\nprovision in respect of the State of Andhra Pradesh empower-
\ning the President, having regard to the requirements of\t the
\nState as a whole for equitable opportunities and  facilities
\nfor the people belonging to different parts of the State, in
\nthe matter of public employment and in the matter of  educa-
\ntion, and different provisions may be made for various parts
\nof the State to make an order, in particular–\n<\/p>\n
(a)  require the State Government to organise any  class  or
\nclasses\t of  posts in a civil service of, or  any  class  or
\nclasses of civil posts under, the State into different local
\ncadres for different parts of the State and allot in accord-
\nance with such principles and procedure as may be  specified
\nin  the\t order the persons holding such posts to  the  local
\ncadres so organised;\n<\/p>\n
(b)  specify any part or parts of the State which  shall  be
\nregarded as the local area–\n<\/p>\n
(i)  for  direct  recruitment to posts in  any\tlocal  cadre
\n(whether  organised  in\t pursuance of an  order\t under\tthis
\narticle\t  or   constituted  otherwise)\t under\t the   State
\nGovernment  …..\n<\/p>\n
(Other\tclauses\t are not relevant for the  purpose  of\tthis
\ncase, Hence omitted.)
\n567<\/span>\n<\/p>\n
    4.\tIn exercise of the power under cl. (1) & cl. (2)  of
\nArt.  371-D the President issued ‘the order’ in\t G.S.R.\t No.
\n524-E  dated  October 18, 1975 which  was  notified  through
\nG.O.Ms. No. 674 dated October 20, 1975. Para 2(1)(c)  inter-
\npretation  clause defines ‘local area’ in relation to  local
\ncadre thus:\n<\/p>\n
“‘local\t area’,\t in relation to any local cadre,  means\t the
\nlocal  area specified in paragraph 6 for direct\t recruitment
\nto  posts in such local cadre, and includes, in\t respect  of
\nposts belonging to the category of Civil Assistant Surgeons,
\nthe local area specified in sub-paragraph (5) of paragraph 8
\nof this Order.”\n<\/p>\n
Para 2(1)(e) defines ‘local cadre’:\n<\/p>\n
“‘local\t cadre’\t means any local cadre of  posts  under\t the
\nState  Government organised in pursuance of paragraph 3,  or
\nconstituted otherwise, for any part of the State.”
\nPara 2(1)(m) defines ‘zone’:\n<\/p>\n
“‘zone’\t means a zone specified in the Second Schedule\tcom-
\nprising the territories mentioned therein.”
\nPara 3(1) provides organisation of local cadres:
\n“The  State  Government\t shall, within a  period  of  twelve
\nmonths from the commencement of this Order, organise classes
\nof  posts  in the civil services of, and  classes  of  civil
\nposts  under,  the  State into different  local\t cadres\t for
\ndifferent  parts  of  the State to the extent,\tand  in\t the
\nmanner, hereinafter provided.”\n<\/p>\n
    The proviso thereto was added and was published  through
\nG.O.Ms.\t No. 34G.A.(SPF. A.) Deptt. dated January 24,  1981,
\nwhich reads thus:\n<\/p>\n
“Provided  that, notwithstanding the expiration of the\tsaid
\nperiod,\t the President may by order, require the State\tGov-
\nernment,  whenever  he considers it expedient so to  do,  to
\norganise any classes of posts in the civil services of,\t and
\nclasses of civil posts under, the State into different local
\ncadres for different parts of the State.”\n<\/p>\n
(emphasis supplied)
\n568<\/span>
\n    Sub-paragraph  (2) provides that the posts belonging  to
\nthe  category of lower division clerk, (now redesignated  as
\nJunior\tAssistant),  and  to each of  the  other  categories
\nequivalent to, or lower than that of a lower division clerk,
\nin each department in each district shall be organised\tinto
\na  separate  cadre.  Sub-paragraph (3)\tprovides  the  posts
\nbelonging  to each non-gazetted category, other\t than  those
\nreferred  to  in sub-paragraph (2), in each  zone  shall  be
\norganised into a separate cadre. Sub-paragraph (4) provides,
\nthe  post belonging to each specified gazetted\tcategory  in
\neach  department  in  each zone shall be  organised  into  a
\nseparate  cadre. Paragraph 3(5) with a\tnon-obstanti  clause
\nprovides that:\n<\/p>\n
“Notwithstanding  anything contained in\t sub-paragraphs\t (3)
\nand  (4),  the State Government may where  it  considers  it
\nexpedient  so  to do and with the approval  of\tthe  Central
\nGovernment organise the posts belonging to any of the  cate-
\ngories referred to therein, in any department, or any estab-
\nlishment  thereof,  in two or more contiguous zones  into  a
\nsingle cadre.”\n<\/p>\n
Sub-paragraph (6) is not material. Hence omitted.
\nSub-paragraph (7) provides:\n<\/p>\n
“In  organising a separate cadre in respect of any  category
\nof posts in any department for any part of the State,  noth-
\ning  in\t this  Order shall be deemed to\t prevent  the  State
\nGovernment from organising or continuing more than one cadre
\nin respect of such category in such department for such part
\nof the State.”\n<\/p>\n
Paragraph 3(8) is also not necessary. Hence omitted.\n<\/p>\n
\t\t\t\t\t\t\t   (emphas
\nis
\nsupplied)
\n    Paragraph  4  provides  mode of  allotment\tof  persons,
\nholding posts required to be organised into local cadres  in
\naccordance  with  the  principles and  procedure  laid\tdown
\ntherein, the details of which are not material. Hence  omit-
\nted.\n<\/p>\n
Paragraph 5 declares that:\n<\/p>\n
“(1)  Each  part of the State, for which a local  cadre\t has
\nbeen  organised, in respect of any category of posts,  shall
\nbe
\n569<\/span>
\na  separate unit for purposes of  recruitment,\tappointment,
\ndischarge, seniority, promotion and transfer, and such other
\nmatters\t as  may be specified by the  State  Government,  in
\nrespect of that category of posts.”\n<\/p>\n
(Other sub-paragraphs relate to transfer of persons and\t are
\nnot relevant for the purpose of this case. Hence  omitted.).
\nParagraph 6 deals with local areas:\n<\/p>\n
(1) Each district shall be regarded as a local area–\n<\/p>\n
(i) for direct recruitment to posts in any local cadre under
\nthe  State Government comprising all or any of the posts  in
\nany department in that district belonging to the category of
\na  lower division clerk or to any other category  equivalent
\nto  or\tlower than that of a lower  division  clerk  (Junior
\nAssistant):\n<\/p>\n
(ii) for direct recruitment to posts in any local  authority
\nwithin\tthat district, carrying a scale of pay, the  minimum
\nof which does not exceed the minimum of the scale of pay  of
\na  lower  division clerk or a fixed pay not  exceeding\tthat
\namount.\n<\/p>\n
(2) Each zone shall be regarded as a local area–the details
\nof which are not material. Hence omitted.\n<\/p>\n
(emphasis supplied)
\n    In the Table ‘Local area and the ratio’ in the Schedule,
\nthe State of Andhra Pradesh was divided into seven zones and
\nzone V consists of the revenue districts of Adilabad, Karim-
\nnagar,\tWarangal and Khammam. Instructions have been  issued
\nfor  implementation  of the order through  G.O.Ms.  No.\t 728
\ndated November 1, 1975, in organising the local cadres. Para
\n3  thereof postulates, after quoting paragraph 3(1)  of\t the
\norder referred to hereinbefore, thus:\n<\/p>\n
“A local cadre is a cadre comprising the posts belonging  to
\na  category in a Department and located within\ta  specified
\npart  of the State. The concept of the local cadre  is\tthus
\nrelated to the concept of the unit of appointment under\t the
\nservice rules; the part of the State for which a local cadre
\nis organised in respect of any category will serve as a unit
\nof appointment etc., for that category. The scheme of organ-
\nisation of local cadres under,the Presidential Order applies
\ngenerally to all non-gazetted categories, other than those
\n570<\/span>
\nspecifically exempted under Government of India Notification
\nG.S.R.\tNo. 529, (E), dated 18th October, 1975 issued  under
\nparagraph 3(8) of the Order, as also to the specified gazet-
\nted categories, i.e., the gazetted categories listed in\t the
\nThird  Schedule to the Order and those that may be  notified
\nin  pursuance of paragraph 2(i)(j) of the Order by the\tCen-
\ntral Government.”\n<\/p>\n
    5. Instruction 4(a) says that the lower division  clerks
\nor equivalent categories or lower than that were  designated
\nas  a District Cadre. Posts belonging to other\tnon-gazetted
\ncategories  were  designated as zonal  cadre  and  specified
\ngazetted  cadres were also designated as zonal\tcadres.\t In-
\nstruction7 provides thus:\n<\/p>\n
“More than one Local Cadre permissible within Local Area–It
\nshould\tbe borne in mind that where the State Government  is
\nrequired  to  organise\ta local cadre for any  part  of\t the
\nState,\tthere  is no objection to organising  or  continuing
\nmore  than one local cadre for such part of the State  (vide
\nparagraph 3(7) of the order). There is, therefore, no objec-
\ntion  to having more than one cadre in Revenue\tDistrict  in
\nrespect\t of a post belonging to the category of Lower  Divi-
\nsion  Clerk  (Junior Assistant) or below or to\thaving\tmore
\nthan one cadre in a zone in respect of a higher category.”
\n(emphasis supplied)
\n    Instruction\t 9(e) provides re-adjustment of\t territorial
\njurisdiction, thus:\n<\/p>\n
“In several departments, the unit of appointment in  respect
\nof  non-gazetted  categories is linked\tto  the\t territorial
\njurisdiction  of an authority or officer subordinate to\t the
\nHead of Department. For instance, the unit of appointment of
\nUpper Division Clerks (Senior Assistants) in the  Commercial
\nTaxes  Department is the division in charge of\tDy.  Commis-
\nsioner. In the case of such departments if it becomes neces-
\nsary  to  alter the units of appointment in order  to  bring
\nthem  into conformity with the Presidential Order, a  corre-
\nsponding  adjustment in the territorial jurisdiction of\t the
\ndepartmental  authority may also become necessary  and\twill
\nhave to be made\t ……\t ”\n<\/p>\n
571<\/span><\/p>\n
    6.\tThus,  it is seen that pursuant to the\tpower  given
\nunder cls. (1) & (2) of Art. 371-D the President had  issued
\nthe  order  organising local cadres and zone V\tconsists  of
\nAdilabad,  Warangal,  Karimnagar and  Khammam  revenue\tdis-
\ntricts. It is the local area for the local cadres. The\tpost
\nof  the Junior Assistant is the district cadre post and\t the
\npost  of  Senior Assistant and\tAssistant  Commercial  Taxes
\nOfficers, etc. are the zonal posts. The State Government  is
\nempowered under the Presidential Order to organise the local
\ncadres\twithin\ta period of twelve months from\tOctober\t 20,
\n1975.  In pursuance thereof the State Government in  Commer-
\ncial Taxes Department issued order G.O.Ms. No. 581 dated May
\n24,  1976  organising zones for the  purpose  of  Commercial
\nTaxes Department, namely, Visakhapatnam, Kakinada,  Krishna,
\nGuntur, Triputhi, Karnool, Warangal, Hyderabad-1 and Hydera-
\nbad-II.\t Warangal  zone\t consists of  revenue  districts  of
\nAdilabad,  Karimnagar,\tWarangal  and  .Khammam.  Thus,\t the
\nWarangal zone of Commercial Taxes Department for the purpose
\nof  recruitment,  seniority, promotion,\t transfer,  etc.  of
\nlocal cadres is co-terminus with the zone V of the Presiden-
\ntial Order. The Junior Assistant in each revenue district in
\nWarangal  zone\tis a separate district post,  .but  for\t the
\npurpose\t of promotion to the post of Senior  Assistants\t and
\nAssistant  Commercial Taxes Officers, which are zonal  posts
\ncommon seniority of the Junior Assistants, Senior Assistants
\nworking\t in all the four revenue districts shall have to  be
\nmaintained and promotions made in accordance with Ministeri-
\nal Service Rules or the Commercial Taxes Subordinate Service
\nRules  issued under proviso to Art. 309 of the\tConstitution
\nas the case may be. It would be subject to rule of  reserva-
\ntion  for  local candidates as adumbrated in para 8  of\t the
\nOrder and the general rule of reservation made in Rule 22 in
\nAndhra Pradesh State and Subrodinate Service Rules.\n<\/p>\n
    7.\tIt would appear from the record that the  Government
\nintended to reorganise, for the purpose of efficient  admin-
\nistration  of  the Commercial Taxes  Department\t and  create
\nseparate  divisions  within  the zones\tand  issued  through
\nG.O.Ms. No. 1900 dated December 22, 1981 carving out  Adila-
\nbad  and  Karimnagar as Adilabad division and  Warangal\t and
\nKhammam as Warangal division with the administrative control
\nof  the\t concerned Dy. Commissioner of Commercial  Taxes  at
\nAdilabad  and Warangal. As a follow up action  options\thave
\nbeen called for from the employees and they have been allot-
\nted  in\t G.O.Ms.  No. 1648 dated November 22,  1982  to\t the
\nrespective divisions. It is not disputed that the  allotment
\nand transfer were not made in terms of Para 4 of the  Order.
\nAs  stated earlier this action had given rise to  the  above
\nRepresentation Petitions and the orders passed by the Tribu-
\nnal and the results ensued thereunder.\n<\/p>\n
572<\/span><\/p>\n
    8. Dr. L.M. Singhvi, the learned Senior Counsel for\t the
\nappellants, contends that paragraph 3(7) of the Order empow-
\ners the State Government to create a zone within the  Waran-
\ngal  zone  for\tthe purpose of\trecruitment,  seniority\t and
\npromotion.  The State Government has inherent power in\tthat
\nregard.\t There is no express prohibition in that  regard  in
\nthe  order. The phrase ‘or constituted otherwise’  engrafted
\nin the definition of local cadre in paragraph 2(e) read with
\nparagraph 3(7) gives ample power to the State Government  to
\norganise any local cadre within the zone for the  Commercial
\nTaxes  Department. The action thus, taken by the State\tGov-
\nernment\t is  clearly within its power.\tThe  contra  finding
\nrecorded by the Tribunal is illegal. He placed strong  reli-
\nance on a decision of a single member Tribunal made in\tR.P.
\nNo.  101 of 1982 and batch dated April 1, 1982.\t He  further
\ncontended that in maintaining harmony in Centre-State  rela-
\ntionship,  the State Government shall continue to  have\t its
\ninherent  power\t to  organise its local cadre  to  meet\t the
\nexigencies  of its administrative needs. The prior  approval
\nor  concurrence of the Central Government is  redundant.  We
\nfind no force in these contentions. It is already seen\tthat
\nin  exercise of the power under paragraph 3(1) of the  Order
\nthe State Government shall, within a period of twelve months
\nfrom  the  date of the commencement of the  Order,  organise
\nclass  or  classes of posts in the civil  services  of,\t and
\nclass  or classes of civil posts, under the State into\tdif-
\nferent local cadres for different parts of the State in\t the
\nmanner\ttherein\t provided. It is already seen  that  through
\nG.O.Ms. No. 581, the State Government in fact had  organised
\nthe  Commercial Taxes Departments by constituting  different
\nlocal cadres and Warangal zone comprised of the four revenue
\ndistricts, namely, Adilabad, Karimnagar, Khammam and  Waran-
\ngal  was  declared  as local area for local  cadres  of\t the
\nDepartment. Having done so, the question emerged whether the
\nState  Government has further power to reorganise the  local
\ncadre  within the zone. In our considered view, we  have  no
\nhesitation to hold that once the State Government has  orga-
\nnised the class or classes of posts in the civil services of
\nand  class  or classes of civil posts, under  the  State  as
\nlocal  cadres, it ceases to have any power to  bifurcate  or
\nreorganise a zone within a zone, cadre or cadres therein. In
\nexercise of the power under proviso to paragraph 3(1), it is
\nfor  the President notwithstanding the expiry of the  period
\nof  twelve months prescribed in sub-paragraph (1)  of  para-
\ngraph  3, by an order require the State Government  whenever
\nhe  considers it expedient so to do to have the power  under
\nparagraph  3(1)\t exercised. Thereby, it is  clear  that\t the
\nState  Government  shall have to  place\t necessary  material
\nbefore\tthe President; the President shall consider that  it
\nis expedient to organise any class or classes of
\n573<\/span>
\nposts in the civil services of and class or classes of civil
\nposts, under the State into a further local cadre within the
\nlocal  cadre in the zone already prescribed and to  pass  an
\norder  in that regard requiring the State Government  to  so
\norganise it. It is made clear that for the purpose of  effi-
\ncient  administration or convenience, the  State  Government
\nmay create division\/divisions within the local area or local
\ncadre. But for the purpose of recruitment, seniority, promo-
\ntion,  discharge, etc. the local cadre once organised  under
\npara 3(1) shall be final and continue to be operative  until
\naction\tis taken under proviso to subparagraph (1) of  para-
\ngraph  3 of the Order. When we enquired the learned  counsel
\nfor the State, Shri Madhava Reddy candidly conceded that  no
\norder  of the President, as provided under the proviso,\t was
\nmade. Therefore, the action taken by the State Government in
\nissuing G.O.Ms. No. 1648 dated November 20, 1982 is  clearly
\nillegal\t and invalid contravening the proviso  to  sub-para-
\ngraph (1) of paragraph 3, undoubtedly it contravened para  4
\nof the Order.\n<\/p>\n
    9.\tIt is seen that the order was made pursuant  to\t the
\npower  given to the President under Art. 371-D, which  is  a
\nspecial provision made under the Constitution (Thirty-second
\nAmendment) Act, 1973 peculiar to the State of Andhra Pradesh
\ndue  to historical background. Therefore, the State  Govern-
\nment have no inherent power in creating a zone or organising
\nlocal  cadre within the zones except-in accordance with\t the
\nprovisions  made  in the Andhra\t Pradesh  Public  Employment
\n(Organisation  of  Local Cadres and  Regulation\t for  Direct
\nRecruitment)  Order. It is true that the clause ‘or  consti-
\ntuted  otherwise’ defined in paragraph 2(e) is of  wide\t im-
\nport, but is only relatable to the power given by the Presi-
\ndent to the State Government to organise local cadre.  Para-
\ngraph  3(1)  is the source of that power, but  the  exercise
\nthereof\t is hedged with a limitation of twelve\tmonths\tfrom
\nthe  date of the commencement of the Order.  Therefore,\t the
\npower  to organise class or classes of posts of civil  serv-
\nices  of,  and class or classes of civil  posts,  under\t the
\nState into different local cadres should be exercised by the
\nState  Government  in accordance with para 3(1)\t before\t the
\nexpiry\tof  the\t twelve months from  October  20,  1975.  If
\nthe  .exercise\tof  the power is  not  circumscribed  within
\nlimitation,  certainly under General Clauses Act  the  power
\ncould  be  exercised from time to time in  organising  local
\ncadres to meet the administrative exigencies. The  prescrip-
\ntion of limitation is a fetter put on the exercise of  power
\nby  the State Government. Obviously, realising this  reality
\nand  the need to organise local cadres,\t subsequent  thereto
\nthe  amendment was made and was published in G.O.Ms. No.  34
\nG.A. dated January 24, 1981 introducing proviso to Paragraph
\n3(1).  Thereunder,  notwithstanding the expiry of  the\tsaid
\nperiod, the President alone has been given power
\n574<\/span>
\nto  organise local cadres in respect of class or classes  of
\nposts  in  civil services of and class or classes  of  civil
\nposts,\tunder the State. That too subject to the  conditions
\nprecedent  laid therein. Thus, it is the President  and\t the
\nPresident  alone  has been given power under proviso  by  an
\norder to require the State Government to organise the  local
\ncadres\tin relation to any class or classes of posts in\t the
\ncivil services of and class or classes of civil posts  under
\nthe  State into different local cadres. It could be  consid-
\nered  in yet another perspective. Para 2(e)  indicates\tthat
\nPresident  himself may create a local cadre instead  of\t re-
\nquiring\t the State Government to organise local\t cadre.\t For
\ninstance, Para 3(6) empowered the President to create  local
\ncadre for the city of Hyderabad. Similarly, under proviso to
\npara 3(1) the President may require the State Government  to
\ncreate\ta local cadre within a zone. So the phrase ‘or\tcon-
\nstituted otherwise’ cannot be understood dehorse the  scheme
\nof the Presidential order. No doubt in common parlence,\t the
\nword  ‘otherwise’  is  of ‘wide’ amplitude.  This  Court  in
\nKochuni\t v.  States of Madras & Kerala, AIR<\/a>  1960  SC  1080,
\nSubba  Rao,  J., as he then was, speaking  per\tmajority  in
\nparagraph 50 while construing the word ‘otherwise’ held that
\nit must be confined to things analogous to right or contract
\nsuch  as lost grant, immemorial user etc. The  Word  ‘other-
\nwise’  in the context only means whatever may be the  origin
\nof  the receipt of maintenance. The ratio thereunder  cannot
\nbe  extended in the contextual circumstances  obtainable  on
\nthe  facts in this case. Similarly, in Lilavati Bai  v.\t The
\nState of Bombay,<\/a> [1957] SCR 721 at 735, Sinha J., as he then
\nwas, speaking for the Constitution Bench interpreting Expla-
\nnation (a) to s. 6 of Bombay Land Requisition Act, 1948,  as
\namended\t in  1950 and repelling the application\t of  ejusdem
\ngeneris doctrine laid the law thus:\n<\/p>\n
“The legislature has been cautious and thorough-going enough
\nto  bar all avenues of escape by using the words ‘or  other-
\nwise’. These words are not words of limitation but of exten-
\nsion so as to cover all possible ways in which a vacancy may
\noccur. Generally speaking a tenancy is terminated by acts of
\nparties\t or by operation of law or by eviction by the  land-
\nlord or by assignment or transfer of the tenant’s  interest.
\nBut the legislature, when it used the words ‘or\t otherwise’,
\napparently intended to cover other cases which may not\tcome
\nwithin\tthe meaning of the preceding clauses, for example  a
\ncase where the tenant’s occupation has ceased as a result of
\ntrespass by a third party. The legislature, in our  opinion,
\nintended  to cover all possible cases of  vacancy  occurring
\ndue, to any reasons whatsoever.”\n<\/p>\n
575<\/span><\/p>\n
Thus,  contextual interpretation to the word ‘or  otherwise’
\nwas given by this Court. Therefore, the phrase\t‘constituted
\notherwise’  is to be understood in that context and  purpose
\nwhich Art. 371-D and the Presidential Order seek to achieve.
\nIf  the\t interpretation\t given by the  appellants  is  given
\nacceptance  it amounts to giving blanket power to the  State
\nGovernment  to\tcreate local cadres at its will\t tending  to
\ndefeat the object of Art. 37 I-D and the Presidential Order.
\nAccordingly, we have no hesitation to reject the interpreta-
\ntion of wider connotation. The ratio in these decisions does
\nnot render any assistance to the appellants.\n<\/p>\n
    11.\t Similarly, the power given to the State  Government
\nin  subparagraph (7) of paragraph 3 of the Order is only  to
\norganise  a  separate cadre in respect of  any\tcategory  of
\nposts in any department when more than one cadre in  respect
\nof  such category exists in each department; so\t that  State
\nGovernment  may organise one cadre when more than one  cadre
\nin respect of different categories of posts exist in a\tzone
\nunder  para 3(1) of the Order. It is clear when we  see\t the
\nlanguage  in  para 3(7) which says that:  “nothing  in\tthis
\norder shall be deemed to prevent the State from organising”.
\nTake  for  instance while creating local  cadre\t co-terminus
\nwith  the administrative control of the\t Dy.   Commissioner,
\nCommercial  Taxes, local cadre for Senior Assistants may  be
\ncreated.  It is also made manifest by Instruction No. 7\t and
\n9(e) of the instructions contained in G.O.Ms. No. 728 G.A.D.
\ndated  November 1, 1975. But, as stated earlier, it is\tonly
\nfor  the purpose of administrative convenience, not for\t the
\npurpose of recruitment, seniority or promotion etc., as\t the
\ncase  may be. Thus, we have no hesitation to hold  that\t the
\ncreation of a division and maintaining separate seniority of
\nJunior\tAssistants  and Senior Assistants for  Adilabad\t and
\nWarangal Divisions are illegal, contrary to order issued  in
\nG.O.Ms. No. 581 and the Andhra Pradesh Employment (Organisa-
\ntion  of Local Cadre and Regulation of\tDirect\tRecruitment)
\nOrder,\t1975. The single member of the Tribunal in R.P.\t No.
\n101\/82\tdated April 1, 1982 did not consider the  effect  of
\nthe order in proper perspective and is illegal.\n<\/p>\n
    12.\t Accordingly, the impugned order of the\t Administra-
\ntive  Tribunal is not vitiated by any manifest error of\t law
\nwarranting interference.\n<\/p>\n
The appeal is accordingly dismissed, but without costs.\n<\/p>\n
P.S.\tS\t\t\t\t\t      Appeal\ndismissed.\n576<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S. Prakasha Rao And Anr vs Commissioner Of Commercial Taxes … on 23 February, 1990 Equivalent citations: 1990 AIR 997, 1990 SCR (1) 561 Author: S Agrawal Bench: Agrawal, S.C. (J) PETITIONER: S. PRAKASHA RAO AND ANR. Vs. RESPONDENT: COMMISSIONER OF COMMERCIAL TAXES AND ORS. DATE OF JUDGMENT23\/02\/1990 BENCH: AGRAWAL, S.C. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-239025","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS. 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