Appeal No3985 of 1988
From the Judgment and Order dated 31121987 of the Andhra Pradesh Administrative Tribunal Hyderabad in RPNo 967 of 1987
WITH SLP C No 9290 of 1988 with SLP C No 215087 CMP No 2552188 and CA134286 KMadhava Reddy C Sitaramiah PPRao G Prabhakar KR 31 Nagaraja PK Rao Ms CK Sucharita B Kanta Rao K Ram Kumar B Krishna Prasad and TVSN chari NP for the appearing parties
The Judgment of the Court was delivered by K JAYACHANDRA REDDY J
The questions that arise for consideration in all these connected cases are confined only to some of the posts of civil services of Andhra Pradesh in view of certain special provisions applicable to these services
Article 371D of the Constitution of India is peculiar to the State of Andhra Pradesh due to historical background
It was enacted by the Constitution Thirty Second Amendment Act which applied only to the State of Andhra Pradesh with a view to give effect to certain safe guards in the matter of employment opportunities for resi dents of Telangana region
This Article empowers President to provide by order for equitable opportunities and facili ties for the people belonging to different parts of the State of Andhra Pradesh in the matter of public employment and in the matter of education
This Article also provides for constitution of an Administrative Tribunal to receive representations for the redressal of the grievances and for passing necessary orders
Accordingly the President of India made Andhra Pradesh Public Employment Organisation of Local Cadres and Regulation of Direct Recruitment Order 1975  Presidential Order  for short by virtue of which the State of Andhra Pradesh has been divided into six zones and local cadres of posts in respect of the local areas were created
In respect of Andhra Pradesh Panchayati Raj Engi neering Service the two such zonal posts are junior Engineer and Assistant Engineer
The main question that arises for consideration in these cases is whether the promotion from Junior Engineer to Assistant Engineer should be on the basis of Statewide list or the zonal list
Some of the promotions made were questioned by the affected persons before the Administrative Tribunal which disposed them of indicating that such promotions should be made on the basis of the Statewide list
The State of Andhra Pradesh has questioned the same in CANo 134286 CANo 398588 and SLP Civil No 929088 mainly on the ground that promotions should be confined to only within local cadres and zonal posts
SLP Civil No 215087 is filed by two such Engineers whose representation was disposed of by the Tribu nal directing the Government to redetermine their positions in the Seniority list instead of giving a definite declara tion as prayed for by them
Shri KMadhava Reddy learned counsel appearing for the State of Andhra Pradesh submitted that both the posts of Junior Engineer and Assistant Engineer are zonal posts under the Presidential Order and the zonal seniority list has to be followed in the matter of promotions from 32 Junior Engineer to Assistant Engineer and not the Statewide seniority list of Junior Engineers
He also submitted that all promotions made so far pursuant to certain orders should be treated as provisional and that the State Government should be permitted to review these promotions on the basis of the zonal seniority list and that all further promotions shall be made on the basis of the zonal seniority list
According to the learned counsel for the purpose of promo tion to the higher post of Executive Engineer which is not a zonal post a Statewide seniority list of Assistant Engi neers of all zones should be prepared on the basis of which promotion to the post of Executive Engineer will be made
Shri Sitaramiah learned counsel appearing for respondents submitted that Article 371D2 refers only to direct re cruitment and the Presidential Order made under the said Article cannot make a departure and cannot be made applica ble for promotions also
On the other hand it is the State wide list that should be the basis for promotions
In sup port of his submissions he invited our attention to the provisions of Article 371D and the Presidential Order and emphasised the word employment  as occurring in the Article should be confined only to direct recruitment
Shri PP Rao learned counsel appearing for other set of respondents in the appeals filed by the State of Andhra Pradesh submit ted that even if either of the lists is to form the basis for promotions his clients are not affected and their promo tions are being unnecessarily delayed
Some of the Engineers of the Andhra Pradesh Panchayati Raj Engineering Service got themselves impleaded in the appeal filed by the State of Andhra Pradesh and Shri B Kanta Rao appearing on their behalf supported the stand taken by the Government of Andhra Pradesh
To appreciate these rival contentions it becomes neces sary to refer to some of the relevant provisions of Article 371D as well as the Presidential Order and some of the notifications made thereunder and the relevant provisions of the AP Panchayati Raj Engineering Service Rules
On Novem ber 1 1956 as a result of reorganisation of the States the erstwhile State of Hyderabad was trifurcated and Telangana region became a part of the newly formed State of Andhra Pradesh
Certain safeguards were envisaged for the Telangana area in the matter of development and also in the matter of employment opportunities and education facilities for the residents of that area
In the year 1957 the Public Employ ment Requirement as to Residence Act was enacted inter alia to provide for employment opportunities for residents of Telangana area
Some of the relevant provisions were held to be unconstitutional by the Supreme Court due to a variety of causes
The working of the safeguards gave rise to dis satisfaction sometimes in the Telangana area and sometimes in the other areas of the State and even led to violent agitations
A consensus was arrived 33 among several leaders of Andhra Pradesh to make a concerted effort to analyse the factors which have been giving rise to the dissatisfaction and they suggested certain measures known as Six Point Formula and the same has been endorsed by the State Government
A bill was brought forward to provide for necessary constitutional authority for giving effect to this formula and the same became the Constitution Thirty Second amendment Act under which Article 371D was introduced
The relevant provisions of this Article for our purpose are as under 371 D Special provisions with respect to the State of Andhra Pradesh 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 organise 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 organised 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 purpose of admission to any University within the State or to any other educational institution which is subject to the control of the State Government XX XX XX 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
 34 It may be noted that clause 3 provides for constitu tion of an Administrative Tribunal
Now we may note some of the relevant provision in the Presidential Order
In para 2 definitions of the various expression used in the Order are given
They read thus Para 2
Interpretations 1 In this Order unless the co text otherwise requires a xx xx xx b direct recruitment  includes recruitment made on a temporary basis but does not include recruitment made in pursuance of any scheme approved by the State Government providing for the regularisation of the services of persons holding posts on a temporary basis before the commencement this order c local area  in relation to any local cadre means the local area specified in paragraph 6 for direct recruitment to posts such local cadre and includes in respect of posts belonging the category of Civil Assist ant Surgeons the local area 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 post 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 relation to such local area g xx xx xx h Schedule  means a Schedule appended to this Order i xx xx xx j specified gazetted category  means any gazetted category specified in the Third Schedule and includes any other gazetted category notifies as such by the Central Government k xx xx xx l xx xx xx 35 m Zone  means a zone specified in the Second Schedule comprising the territories mentioned therein
xx xx xx Para 3
Organisations of Local Cadres 1 The State Government shall within a period of eighteen 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
GO Ms No 794 GAA dated 12111976 Provided that notwithstanding the expira tions of the said period the president may by order require the State Government whenever he considers it expedient so to do to orga nise any classes of posts in the civil serv ices of and classes of civil posts under the State into different local cadres for differ ent parts of the State Proviso is added as per GO Ms No 34 GAD SPFA dated 24th January 1981
2 The posts belonging to the category of Junior Assistant and to each of the other categories equivalent to or lower than that of a Junior Assistant in each department in each district shall be organised into a sepa rate cadre
Explanation For the purposes of this sub paragraph subparagraph 1 of paragraph 6 and sub paragraph 1 of paragraph 8 a cate gory shall be deemed to be equivalent to or lower than that of a Junior Assistant if the minimum of the scale of pay of a post belong ing to a category or where the post carries a fixed pay such fixed pay equal to or lower than the minimum of the scale of pay of a Junior Assistant
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 Govern ment may where it considers it expedient to do so and with the approval of the Central Government organise the posts belonging to any of the categories 36 referred to therein in any department or any establishment thereof in two or more continu ous zones into a single cadre
xx xx xx Para 4
Allotment 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 regards 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 senior ity 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 languages spoken and the law in force in the part of the State lot which the local cadre is organised e preference of the persons concerned for allotment to any local cadre where feasible
xx xx xx Para 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 posts
xx xx xx Para 13
Certain appointments and promotions to be provisional Any certain appointments and promotions made after the commencement of this order or any order made in pursuance of the proviso to paragraph 3 as the case may be and before any local cadre has been orga nised under the provisions of this Order made in pursuance of the Proviso to 37 paragraph 3 to any post which is required to be included in such cadre shall be provisional and shall within a period of twelve months after such organisation be reviewed and readjusted in accordance with the provisions of this order
Explanation For the purposes of this para graph any local cadre shall be deemed to be organised with the allotment of persons to it under paragraph 4
Substituted as per GO Ms No 234 GAD SPF A Dept dated 24th Jan 1981
xx xx xx THE SECOND SCHEDULE See paragraphs 2 1 m and 8 4 Zones Zone I Shrikakulam and Visakhapatnam districts
Zone II East Godavari West Godavari and Krishna districts
Zone III Gunrur Prakasam and Nellore districts
Zone VI Chittoor Cuddapah Anantapur and Kurnool districts
Zone V Adilabad Karimnagar Warangal and Khammam districts
Zone VI Hyderabad Nizamabad Mahabubnagar Medak and Nalgonda districts
THE THIRD SCHEDULE See paragraphs 21 j and 4 Specified Gazetted Categories Sr
No Category Name of the Department 1 2 3 xx xx xx 30
Assistant Engineers Panchyati Raj Enginee ring Department 30 A Junior Engineers do xx xx xx 40
Junior Engineers Public Works Department Irrigation 41
Assistant Engineers Public Works Department Irrigation 42
Junior Engineers Public Works Department RB 43
Assistant Engineers do  emphasis supplied  38 It is clear from these provisos that the primary purpose of Article 371D was to promote speedy development of the backward areas of the State of Andhra Pradesh with a view to secure balance in the development of the State as a whole and to provide equitable opportunities to different areas of the State in the matter of education employment and career prospects in public service
Accordingly the Presidential Order was made
From the above extracted provisions of the Order it can be seen that State of Andhra Pradesh was divided into six zones and the 4th zone with which we are concerned com prises of Chittoor Cuddapah Anantpur and Kurnool Dis tricts
As noted above Schedule III enumerates various specified gazetted categories and Junior Engineers and Assistant Engineers in the Panchayati Raj Engineering De partment as well as in the Public Works Department Irriga tion and Roads and Buildings are among those various categories mentioned therein
Paragraph 3 provided for organisation of local cadres in respect of classes of posts in the civil services in the State of Andhra Pradesh
Under para 34 the posts belonging to each specified category in each department in each zone shall be organised into a separate cadre
Para 4 provides for the allotment of persons holding posts into such local cadres to be organised
Para 5 which is important lays down that 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 not only recruitment etc
but also in respect of promotion
Para 13 lays down that in certain appointments or promotions after the commencement of the Presidential Order or any order made in pursuance of the proviso to paragraph 3 and before any local cadre has been organised shall be provi sional and shall within a period of twelve months after such organisation of local cadre be reviewed and readjusted in accordance with the provisions of the Presidential Order
AP Panchayati Raj Engineering Service Rules were framed in the year 1963
These Rules provide for the ap pointments of different categories of engineers
After the Presidential Order was issued a new Rule 2 A was introduced on 261179 to bring the State Rules in conformity with the provisions of the Presidential Order
Rule 2 A reads thus Rule 2 A Unit of Appointment For purposes of recruitmentappointment discharge for want of vacancy re appointment seniori ty transfer promotion and appointment as full member in respect of category 4 Deputy Executive Engineers each 39 zone comprising the districts specified against each shall be a separate unit xx xx xx Zone IV Chittoor Cuddapah Anantpur and Kurnool districts
xx xx xx Provided that the post of Deputy Executive Engineers in the office of the Chief Engineer Panchayati Raj shall be filled on a tenure basis by drafting persons equitably from different units and the period of tenure shall not ordinarily exceed three years Provided further that the posts of Deputy Executive Engineers in the Rigs Divisions notified as Special Officers under the Andhra Pradesh Public Employment Organisations of Local Cadres and Regulation of Direct Recruit ment Order 1975 shall be filled by drafting persons from the units over which the respec tive Rigs Division is having jurisdiction
GO Ms No 1024 PR dated 26111979
 Regarding the scope of this rule it is the submission of the learned counsel for the State of Andhra Pradesh that a combined reading of Rule 2 A read with para 13 of the Presi dential Order would show that the said Rule has retrospec tive effect therefore the Government is at liberty to revise the promotions made otherwise then on the basis of the zonal seniority list
But Shri Sitaramiah learned counsel submitted that the said Rule cannot be given retro spective effect and the same applies to vacancies arising thereafter and therefore the promotions already made should not be disturbed
It is an admitted fact that there was a Statewide list of Junior Engineers before 281075 namely before the Presi dential Order was made
Questioning some of the promotions made by the Government representation petitions were filed before the AP Administrative Tribunal
In such matters the Tribunal observed that as a precautionary measure the jun iors to the petitioners therein in the Statewide list cannot be promoted before the petitioners  cases are considered for the appointment to the post of Executive Engineer which is a higher post
In all the orders passed by the Tribunal there is an indication that the Statewide list should be the basis for promotion
Though they appear to be in the nature of interim 40 directions but the ratio relied upon is that the promotion should be on the basis of the Statewide list
Therefore the question that has been canvassed by the State Government in all these matters is that the observation and the directions given by the Administrative Tribunal are opposed to the very object underlying the Presidential Order and is contrary to various provisions therein
At this juncture it is essential to note the principle and object underlying the zonal system as provided for in the Presidential Order
We have already noted that the object underlying Article 371D is to promote speedy develop ment of the backward areas and to provide equal opportuni ties to different areas of the State in the matter of em ployment etc
This Article is a special provision which makes departure from the general scheme of the Constitution
In High Court of Andhra Pradesh and Ors
vs VVS Krishnamurthy and Ors after referring to the Statement of Objects and  Reasons of the Constitution Thirty Second Amendment Act it was observed as under It will be seen from the above extract that the primary purpose of enacting Article 371D was two fold i To promote accelerated development of the backward areas of the State of Andhra Pradesh so as to secure the balanced development of the State as a whole
and ii to provide equitable opportunities to dif ferent areas of the State in the matter of education employment and career prospects in public service
1 To achieve this primary object Clause 1 of Article 371D 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 educa tion
 Clause 2 of the Article is complemen tary to Clause 1
It particularises the matters which an order made under Clause 1 may provide
For instance its sub clause c i enables the President to specify in his Order the extent to which the manner in which and the conditions subject to which preference or reservations shall be given or made in the matter of direct recruitment to posts in any local cadre under the State Government or under any local authority
Sub clause c further makes it clear that resi dence for a specified period in the local area can be made a condition for recruitment to any such local cadre
Thus Clause 4 also directly is designed to achieve the primary object of the legislation
 41 The Presidential Order was made keeping in view this Object and suitable provisions are inserted
With a view to achieve this Object and in conformity with the provisions of the Order the State is divided into six zones and certain specified gazetted services are included in the local cadres
The AP Panchayati Raj Engineering Services is one such and two categories of posts namely Junior Engineers and Assistant Engineers are such zonal posts
It may be men tioned here that the validity of the Presidential Order is not being questioned
Therefore we have to proceed on the basis that all the provisions of the Presidential Order are valid
The further and rather the main submission of the re spondents is that the Presidential Order only lays down the criteria for claiming eligibility as a local candidate on the basis of the period of residence or of stay in that local area and reservations are meant to be made to the local cadre only in respect of direct recruitment to the said posts mentioned therein and therefore the power con ferred under the Article should be confined only to direct recruitment
In this context the learned counsel also relied very much on the expressions used in Article 371D 1 and 2
The learned counsel also submitted that initially the Junior Engineers are selected by the Public Service Commis sion and are given a ranking and they are allotted to the local cadre and to that extent that may become a zonal post
But when it is a question of promotion to the higher post of Assistant Engineer though shown as a zonal post by virtue of being included in the local cadre it should be only on the basis of the seniority in the Statewide list originally prepared by the public Service Commission
The learned counsel very much relied on the expression in the matter of public employment  and the other expressions used in Article 371D 1 and 2
First we shall consider the submission that the purport of Article 371D and the Presidential Order in respect of direct recruitment does not apply to promotion
The expres sion in the matter of public employment  in clause 1 in our view is of wider import
The public employment can be by way of direct recruitment or by promotion
In The General Manager Southern Railway vs Rangachari  this Court considered the scope of Articles 16 1 2 and 4 and it was observed that Articles 16 1 and 2 of the Constitution are intended to give effect to Articles 14 and 151 of the Constitution and they arc supplemented to each other
Regarding the meaning of the word employment it is noted that Article 16 1 should therefore be con strued in a broad and general and not pedan tic and technical way so construed matters relating to employment cannot mean merely matters prior to the act of appointment nor can appointment  to any 42 office mean merely the initial appointment but must include all matters relating to employ ment whether prior or subsequent to the employment that are either incidental to such employment or form part of its terms and conditions and also include promotion a selec tion post Although Article 164 which in substance is an exception to articles 16 1 and 162 and should therefore be strictly construed the court cannot in construing it overlook the extreme solicitude shown by the Constitution for the advancement of socially and education ally backward classes of citizens
 It is thus concluded that Article 164 authorises the State to provide for reservation of appointments as well as selection posts
At this juncture it may be noted that Article 371D 10 declares that any order made by the Presi dent shall have effect notwithstanding anything in any other provision of the Constitution or in any other law for the time being in force
Therefore notwithstanding anything contained in the AP Panchayati Raj Engineering Service Rules the promotions have to be based on zonal list other wise the very object sought to be achieved as per Article 371D and the Presidential Order would be defeated
Shri Sitaramiah however laid considerable stress on Article 371D 2 which empowers the President to make an order in particular to specify any part or parts of the State which shall be regarded as the local area for direct recruitment in any local cadre
It is submitted that if clauses 1 and 2 of Article 371D are read together the Presidential Order can make provision only in respect of appointments by way of direct recruitment and cannot be applied for promotion also
But as laid down in Rangachari s case the word employment should be interpreted in a broad and general manner
The ratio therein should be applied in interpreting the words in the matter of public employment occurring in Article 371D also
Consequently it must be held that Article 371D and the Presidential Order apply both for direct recruitment and for promotion in respect of categories specified in the Third Schedule
Article 371D 2 does not make any departure from this principle
The words in particular therein only lay emphasis on the aspect of creating local cadres for different parts of the State for the purpose of direct recruitment and treat such parts as local areas
This does not in any manner restrict the scope of Article 371D wherein it is clearly declared that in the matter of public employ ment the President is empowered to make an order in the manner stated therein and the public employment cannot but be interpreted to include promotion also
It therefore emerges that Article 371D is in general terms and applies to the public employment as a whole and Article 371D2 in particular applies to direct recruitment
It is only comple mentary to clause 1 and particularises 43 the matters which an order made under clause 1 provides for
Any other interpretation would defeat the object under lying these two provisions
The other submission of Shri Sitaramiah as already noted is that even assuming that Rule 2 a which came into existence in 1979 is valid and applies to promotion also then it can have only prospective effect and all the promo tions prior to this Rule should be only on the basis of the Statewide list
In considering this argument we have to bear in mind para 13 of the Presidential Order which specifically lays down that certain appointments and promotions after the commencement of the Order should be treated as provisional and the same should be reviewed an readjusted in accordance with the Presidential Order for the purpos of preparing the local cadres and allotting to the zones
The learned coun sel however relied on two judgments of this Court in Y V Rangiah and Others etc
vs J Sreenivasa Rao and Others etc  and NT Devin Katti and Others vs Karnataka Public Service Commission and Others   in support of his submission that the said Rule cannot be given retrospective effect and that the promotions should be made only in accordance with the unamended AP Pan chayati Raj Engineering Service Rules 1963
But having regard to the historical background and the object underly ing Article 371D and the Presidential Order and in particu lar para 13 of the Order the promotions if any made should be treated only as provisional
If Rule 2a is viewed from this angle particularly in the light of paras 5 and 13 of the Presidential Order it becomes clear that the said Rule has to be given retrospective effect so that the promotions to the junior posts can be brought in conformity with Article 371D and the Presidential Order
Accordingly any promotions made should be treated only as provisional and they should be reviewed and readjusted
This leads us to the question whether the promotions from the post of Junior Engineer to Assistant Engineer should be based on zonal seniority list or on the Statewide seniority list
Rule 2a makes it abundantly clear that for the purpose of recruitment appointment promotion transfer etc
each zone shall be a separate unit
Para 5 of the Presidential Order is also to the same effect
When once each zone is treated as a separate unit for the purpose of promotion also in respect of zonal posts then by virtue of Article 371D and the Presidential Order as observed above the promotion from the post of Junior Engineer to the post  of Assistant Engineer which are both zonal posts should be on the basis of the zonal seniority list inasmuch as the post of Junior Engineer and the next promotion post namely Assistant Engineer are included in the local cadre and the zonal list as we find in the Third Schedule
With regards the higher posts which are not included in the local cadre and which are Statewide posts it 44 becomes obvious that the Statewide seniority list of the Assistant Engineers of all zones should be prepared and that should be the basis of promotion to the post of Executive Engineer which is not a zonal post
Therefore it emerges that the directions given by the Tribunal to ensure that no Junior Engineer is promoted earlier than their seniors in the Statewide seniority list to the post of Executive Engi neer should be quashed
Shri Sitaramiah however pointed out certain anamolies if such a principle is to be followed
According to the learned counsel if the promotions are to be made only on the basis of the zonal list than there is every possibility of some of the seniors in the Statewide list not getting promotions and the same would result in some of the juniors becoming seniors which would ultimately affect the promo tional avenues for the Statewide higher post like Executive Engineer
But it must be noted that Article 371D is of exceptional nature and the object is to provide equal oppor tunities in the backward areas in respect of the specified posts mentioned in the Third Schedule which are included in the local cadre which thus became zonal posts
As mentioned in para 5 of the Presidential Order and Rule 2 a of the Engineering Service Rules such zones should be treated as separate units for the purpose of promotions also
Therefore there is valid nexus to the object that is sought to be achieved and even if there is some anamoly it cannot on that basis be said that such promotions for zonal posts on the basis of the zonal seniority list amounts to discrimination
In SPrakasha Rao and another vs Commissioner of Commercial Taxes and Others  a Bench of three Judges of this Court affirmed the view taken by the Administrative Tribunal Andhra Pradesh that the zonal seniority list prepared pursuant to the initial organisation and creation of local cadres is to be maintained and such zonal seniority list is the criteria for promotion
In the result we hold that all promotions of Junior Engineers redesignated as Assistant Executive Engineers to the next higher post of Assistant Engineers re designated as Deputy Executive Engineers have to be made on the basis of the zonal seniority lists as indicated above and not on the basis of the Statewide seniority list of Junior Engi neers
The promotions made after the Presidential Order dated 181175 should be treated as provisional and the Government is permitted to review these promotions on the basis of zonal seniority lists and re adjust the same
All the future promotions from the post of Junior Engineer to the post of Assistant Engineer should necessarily be made on the basis of the zonal seniority lists
For the purpose of promotion to the post of Executive Engineer which is not a zonal post a Statewide seniority list of the Assistant Engineers of all zones should be prepared and such Statewide seniority 45 list should form the basis of promotion to the post of Executive Engineer
The State Government is accordingly directed to prepare such lists ie zonal seniority lists of various zones for the purpose of promotions from Junior Engineers to Assistant Engineers within the zones and also Statewide seniority list of the Assistant Engineers of all zones for the purpose of promotion to the post of Executive Engineer
Such of the Directions given by the Tribunal in the matters before us which are contrary to or different from the above conclusions remain quashed
The inter se seniority and the consequent promotions of respondent Nos 1 to 5 in Civil Appeal No 393588 as well as the petitioners in Special Leave Petition Civil No 215087 shall be determined subject to the above directions
All these mat ters are disposed of accordingly with the above directions
In the circumstances of the cases there will be no order as to costs
GN Appeals disposed of


Summary:
In a writ petition challenging the termination of serv ices of the appellant who was an employee in the National Council of Educational Research  Training NCERT the High Court upheld the preliminary objection that the writ peti tion was not maintainable as NCERT was not an instrumentali ty or authority within the meaning of article 12 of the Consti tution
Aggrieved the appellant filed the appeal by special leave to this Court
On the question whether NCERT is State as defined under Article 12 of the Constitution Dismissing the appeal the Court HELD 11
Like all societies having a Memorandum of Association and Rules for internal management the National Council of Educational Research and Training is a society registered under the Societies Registration Act
168 E 12
Having regard to the object functions activities sources of funds of NCERT freedom of application of its income and property towards the promotion of its objectives and implementation of programmes confinement of Government control only to proper utilisation of the grant and largely being an autonomous body the institution does not satisfy the requirements of State under Article 12 of the Consti tution
169 G H 170A C 171 C D Tekraj Vasandhi alias KL Basandhi vs Union of India   Sabhjit Tewari vs Union of India and Ors   referred to
166 Ajay Hasia vs Khalid Mujib Sehravardhi  PK Ramachandra Iyer vs Union of India  distinguished
Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Govern ment within the sweep of the expression State
A wide enlargement of the meaning must be tempered by a wise limi tation
It must not be lost sight of that in the modern concept of Welfare State independent institution corpora tion and agency are generally subject to State control
The State control does not render such bodies as State under Article 12
The State control however vast and pervasive is not determinative
The financial contribution by the State is also not conclusive
168 A B 3
The powers functions finances and control of the government are some of the indicating factors to answer the question whether a body is State or not
These are merely indicative indicia and are by no means conclusive or clinch ing in any case
Each case should be handled with care and caution
167 E G Sukhdev Singh vs Bhagat Ram   RD Shetty vs International Airport Authority 19793 SCC 489 and Sore Prakash Rekhi vs Union of India   referred to
41 The combination of State aid coupled with an unusual degree of control over the management and policies of the body and rendering of an important public service being the obligatory functions of the State may largely point out that the body is State
168 B C 42
If the Government operates behind a corporate veil carrying out governmental activity and governmental func tions of vital public importance there may be little diffi culty in identifying the body as State within the meaning of Article 12 of the Constitution
168 C Central Inland Water Transport Corporation vs Brojo nath Gangoli  Tekraj Vasandhi alias KL Basandhi vs Union
of India   referred to