* THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND * THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION NOS. 6068 AND 6123 OF 2004 AND 16890 OF 2006 WRIT PETITION NOS. 6068 OF 2004: % Dated 09.03.2007 # G. Rajababu …. Petitioner Vs. $ The Government of A.P., rep., by its Principal Secretary, Labour, Employment and Technical Education Department, Secretariat Buildings, Hyderabad and six others. …. Respondents ! Counsel for the Petitioner: Sri P. Naveen Rao ^ Counsel for the Respondents: Government Pleader for Services -I <GIST: > HEAD NOTE: ? Cases referred [1] AIR 2002 SC 77 2 AIR 1989 SC 2060 3 AIR 2000 SC 1729 4 (2003)4 SCC 147) 5 (2003)7 SCC 517 6 Judgment in W.P.No.25633 of 1999 dated 25.3.2003 7 AIR 1995 AP 86 (FB) 8 1988(2) ALT 227 9 2001(4) SCC 534 10 2003(1) SCC 692 11 AIR 1990 SC 1747 12 AIR 1966 SC 1678 13 (1984 (2) SCC 500 14 (2001)8 SCC 61 15 (2003)5 SCC 134 16 (2005)10 SCC 437 17 (2003)2 SCC 455 18 (2004)11 SCC 625 19 (1986 (4) SCC 746 20 AIR 1992 SC 96 21 (2001)4SCC 139 22 (2001)3 SCC 735 23 1998)3 SCC 234 24 2005(8) SCC 325 25 AIR 1981 SC 561 26 1997(6) SCC 623 27 AIR 1955 SC 123 28 AIR 1967 SC 1643 29 (1999) 9 SCC 559 30 (2001)1 SCC 534 31 2001(5) SCC 519 32 (2002) 6 SCC 562 33 AIR 1997 SC 1125 34 (2003)7 SCC 517 THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NOS. 6068 AND 6123 OF 2004 AND 16890 OF 2006 COMMON ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) W.P. No. 6068 of 2004 is filed against the order of the Andhra Pradesh Administrative Tribunal in O.A. No. 6334 of 1997. W.P. Nos. 6123 of 2004 and 16890 of 2006 are filed against the order in O.A. No. 1854 of 1997. O.A. No. 1854 of 1997 and batch, which included O.A. No. 6334 of 1997, was allowed by the Tribunal, in its order dated 27.03.2003, and the rules in G.O.Ms. No. 14 dated 26.11.1994, as amended in G.O.Ms. No. 22 dated 09.05.1996, to the extent they provided a channel for the senior assistants and senior stenographers, working in the head office of the labour, factories and boiler departments and subordinate offices of the factories and boilers department, to be appointed by transfer to the post of assistant labour officer and the related provisions providing for quota and rotation etc., to these categories, were declared void being violative of the mandatory provisions of the A.P. Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 (hereinafter referred to as the Presidential Order) and the respondents in the O.A. were directed not to give effect to these provisions. The Tribunal, however, held that as the earlier judgments of the Supreme Court had upheld similar rules, and it was only in V. Jagannadha Rao Vs. State of A.P.[1] (judgment dated 07.11.2001) that these rules were held to be in violation of the Presidential Order, any action taken in compliance with the rules till 07.11.2001 should not be disturbed so as to result in reversion of any employee from the post to which he had been promoted under these rules. It is only to the limited extent that the order of the Tribunal, in O.A. No. 1854 of 1997 and batch, has been given prospective effect from the date of the judgment of the Supreme Court in V. Jagannadha Rao1 that the applicants, in O.A. No. 1854 of 1997 and O.A. No. 6334 of 1997, have filed W.P. No. 6123 of 2004 and W.P. No. 6068 of 2004 respectively. Some of the respondents, in O.A. No. 1854 of 1997, have filed W.P. No. 16890 of 2006 before this Court aggrieved by order of the Tribunal declaring the channel prescribed, for appointment by transfer to the post of assistant labour officer, in the rules notified in G.O.Ms. No. 14 dated 26.11.1994, as amended by G.O.Ms. No. 22 dated 09.05.1996, ultravires the Presidential Order. The applicants in O.A. No. 1854 of 1997 & batch are mainly senior assistants working in the subordinate offices of the labour department and are members of the A.P. Labour Subordinate Service. The senior assistants and senior stenographers working in the subordinate offices of the labour department, along with the senior assistants and senior stenographers working in the head office, and those working in subordinate offices of the factories and boilers department, form the feeder categories, for appointment by transfer to the post of assistant labour officer, under Rule 3 of the A.P. Labour Subordinate Service Rules. The applicants, in O.A.No.1854 and batch, contended before the Tribunal that the post of assistant labour officer was a zonal post and, therefore, employees working in the subordinate offices in the respective zones were alone entitled to form the feeder category. They contended that inclusion of other categories, from outside the zone, to form part of the feeder channel for appointment by transfer to zonal cadre posts offended the provisions of Para 3(3) and 5(1) of the Presidential Order. The respondents, in O.A. No. 1854 of 1997 & batch, however, relied on Para 5(2) of the Presidential Order, which permits transfer of employees from outside the zone, to contend that inclusion of senior assistants and senior stenographers working in the office of the head of the department, and senior assistants and senior stenographers of the factories and boilers department, to form part of the feeder categories, for appointment by transfer to the post of assistant labour officer, did not violate the Presidential Order. The Tribunal relied on the judgment of the Supreme Court in V. Jagannadha Rao1 wherein two earlier judgments of the Supreme Court, in State of A.P. Vs. V. Sadanandam[2] and Government of Andhra Pradesh Vs. B. Satyanarayana Rao[3], were held not to have been decided correctly. The Tribunal noted that a similar provision, as in V. Jagannadha Rao, was prescribed under the second method of appointment in rule 3 of the impugned Rules. The Tribunal held that Para 14 of the Presidential Order was by way of a savings clause and merely provided that the various mandates and restrictions under the Presidential Order did not apply to posts in the office of the heads of departments and it only meant that the posts enumerated therein were not required to be organized into local cadres. The Tribunal further held that the object of Para 14 was that, notwithstanding the geographical location of these offices and considering the nature of the posts, the geographical restrictions for constituting a local unit and a local cadre were not applicable to these posts and that nothing in Para 14 of the Presidential Order justified prescription of any rule providing for appointment of a person, from outside the local cadre and outside the zone, to a post in a local cadre or the zone in respect of posts for which such cadres or zones had been organised under the Presidential Order. The Tribunal held that the power to effect transfers, in Para 5(2) of the Presidential Order, did not include the power make appointment by transfer and the impugned rules in G.O.Ms.No.14 dated 26.11.1994 as amended upto date, to the extent they provided for appointment of senior assistants and senior stenographers working in the head office and subordinate offices of the factories and boilers department, which were outside the zone, by transfer to the zonal post of assistant labour officer, was void as being violative of Para 3(3) and 5(1) of the Presidential Order. Sri M. Panduranga Rao, learned counsel for the petitioner in W.P. No. 6123 of 2004, would submit that having held that the impugned rules were in violation of the Presidential Order the Tribunal had erred in giving it prospective application only from the date of the judgment of the Supreme Court in V. Jagannadha Rao1. Learned counsel would place reliance on Sarwan Kumar Vs. Madan Lal Aggarwal[4] and M.A. Murthy Vs. State of Karnataka[5] to contend that the power to over-rule a judgment prospectively was available only to the Supreme Court and, in so far as High Courts/Tribunals were concerned, once the rules were held to be in violation of the Presidential Order, the judgment would relate back from the inception. Sri P. Naveen Rao, learned counsel for the petitioners in W.P. No.6068 of 2004, would place reliance on a Division Bench judgment of this Court in J. Vivek Kumar Vs. The Government of India[6], to contend that a judgment can be applied prospectively only by the Supreme Court and it is not open to the Tribunal to hold that a particular judgment was prospective in its application. Learned counsel would submit that, since the respondents in the O.A. had chosen to join offices of the heads of departments on their volition, they could not now turn around and claim that they belong to the zone or to any local cadre. Learned counsel would submit that the interpretation placed on Paragraphs 3 and 5 of the Presidential Order in the earlier judgments of the Supreme Court had been reversed and the interpretation placed, in V. Jagannadha Rao1, on these and other provisions of the Presidential Order, was binding on the High Court. Sri Abhinand Kumar Shavili, learned counsel for the petitioners in W.P.16890 of 2006, would submit that, in V. Jagannadha Rao1, the question which arose for consideration was whether employees from the factories and boilers department could be appointed by transfer to posts in the labour department and the question, whether employees from the office of the heads of departments could be appointed by transfer to posts in subordinate offices of the same department, did not arise for consideration therein. Learned counsel would place reliance on the instructions in G.O.P. No.729 dated 1.11.1975 wherein Clause 21, which relates to recruitment to posts in the secretariat, offices of heads of department etc., provides that the scheme of reservation in favour of local candidates, as notified in the Presidential Order, would not apply to such posts, and that direct recruitment to fill posts in these offices would be on a State-wide basis as it was the government’s intention that such offices and establishments should, as far as possible, cease to be separate units of appointment and that posts in such offices and establishments should not, ordinarily, be filled by direct recruitment or by drawing persons on tenure basis from different local cadres. Learned counsel would submit that the scheme of reservation in favour of local candidates, as prescribed in the Presidential Order, did not apply to posts in the offices of the heads of departments and, therefore, employees appointed to such posts could be appointed by transfer to posts in the subordinate offices. Learned counsel would refer to the provisions of the A.P. Educational Institutions (Regulation of Admission) Order, 1974, to contend that the petitioners had a right to be classified as local candidates of one local area or the other and that, the mere fortuitous circumstance of their working in the head office would not disentitle them from being treated as a local candidate in one local area or the other. Learned counsel would refer to Rule 3 of the A.P. Ministerial Service Rules, 1998 which prescribes the method of appointment for several categories of posts. He would place reliance on Note (1) thereunder which provide that the first out of every eight successive vacancies of superintendents in the offices of heads of departments and directorates are to be filled by transfer from the category of superintendents working in the subordinate offices under the administrative control of the concerned heads of departments, or the directorate as the case may be, and that, if a person so appointed by transfer faces reversion, he shall be reverted to his parent unit of the department. Learned counsel would also refer to Note (2) which provides that the first out of every four successive vacancies of senior assistants in the offices of heads of departments shall be filled in from amongst suitable senior assistants working in subordinate offices of the concerned heads of departments. According to the learned counsel since persons from subordinate offices are entitled to be appointed by transfer to the head office, likewise, employees working in the head office would be eligible to be considered for appointment by transfer to subordinate offices. Learned counsel would contend that recruitment in the head office cannot deprive employees, appointed in such posts, of their fundamental right of being treated as a local candidate or to be brought within a local area under the Presidential Order, that Paragraph 3 of the Presidential Order had no application to the facts of the present case and that Paragraph 5(1) should be interpreted in such a manner that the percentage of reservation prescribed in Paragraph 8, which relates to direct recruitment, should also be applied for promotion or appointment by transfer in which event, at least to the extent of the unreserved vacancies, employees from outside the local area would also be entitled to be considered for appointment to such posts either by promotion or by transfer. Learned Government Pleader would submit that, consequent to the judgment of the Supreme Court in V. Jagannadha Rao1, the government had examined the matter and was advised that the Presidential Order should be amended, by inserting a new Paragraph 5(2) to the Presidential Order, to provide for a channel for appointment by transfer of section officers/senior stenographers/asst. section officers of the secretariat and superintendents and senior assistants of the heads of departments to localized executive posts, that the Government of India had been addressed and that necessary orders in the matter were awaited. The A.P. Labour Subordinate Service Rules was notified in G.O.Ms.No.14 dated 1.7.1993. Rule 2 thereof prescribes the constitution of the service. It includes several categories of posts and under category (1) thereunder is the post of Assistant Labour Officer (including Assistant Inspectors of Factories, Welfare Organizers & Executive Assistants, S.I.H.S). Under Rule 3, the method of appointment and the appointing authority for the post of Assistant Labour Officer is as below mentioned:- Category (1) Method of Appointment (2) Appointing Authority Assistant Labour Officer (i) By direct recruitment; (ii) By transfer from Sr. Assistant and Senior Stenographers in the A.P. Ministerial Service, working in Head Offices and Subordinate Offices of the Labour Department, Factories Department and Boilers Department; (iii) By promotion from the categories of: Health Visitor, Nursery School Teacher, Craft Instructress, Games Supervisor, Adult Education Teachers (including Workers Education Teachers) Audio-Visual Incharge Deputy Commissioner of respective Zones. Note (1) thereunder reads thus: “Note (1):- In every cycle of 10 vacancies, other than leave vacancies, the 1st, 4th, 7th and 10th vacancies shall be filled by direct recruitment and the remaining six vacancies shall be filled by appointment by transfer in the ratio of vacancies as mentioned below: Among the Senior Assistants/Senior Stenographers and the personnel working in the Labour Welfare Centers, the appointment to the post of Assistant Labour Officer shall be made in the ratio of 9:1 respectively in the following order of rotation: (1) Senior Assistant/Senior Stenographer (2) Senior Assistant/Senior Stenographer (3) Senior Assistant/Senior Stenographer (4) Labour Welfare Centre Staff (5) Senior Assistant/Senior Stenographer (6) Senior Assistant/Senior Stenographer (7) Senior Assistant/Senior Stenographer (8) Senior Assistant/Senior Stenographer (9) Senior Assistant/Senior Stenographer (10) Senior Assistant/Senior Stenographer Provided that among the Senior Assistants/Senior Steno of the Directorate and the Senior Assistants/Senior Stenos of the Subordinate Offices, the appointment shall be in the ratio of 2:3 respectively in the following rotation: 1st vacancy : Subordinate Offices 2nd vacancy : Directorate 3rd Vacancy : Subordinate Offices 4th Vacancy : Directorate 5th Vacancy : Subordinate Offices (Subs. By G.O.Ms.No.22, Labour Employment Training & Factories (Lab.IV) Dt. 9.5.1996 w.e.f. 26.11.1994) Note (1) to Rule-3 requires four out of ten vacancies to be filled by direct recruitment and the remaining six on appointment by transfer. Among the ten vacancies, nine are earmarked for senior assistants/senior stenographers and the 10th for the labour welfare center staff. Among the vacancies earmarked for senior assistants/senior stenographers, appointment is required to be made in the ratio of 2:3 between senior assistants/senior stenographers of the directorate (Head Office) and senior assistants/senior stenographers in the subordinate offices. Thus, in a cycle of five vacancies while the first, third and fifth go to subordinate offices, the second and fourth are reserved for the directorate or the Head Office. As noted above, the office of heads of departments/directorate, in view of paragraph-14, fall outside the scope of the Presidential Order. Subordinate offices, on the other hand, form part of the local cadre (district/zone) and the post of Assistant Labour Officer in Category 1 of Rule-2 is a zonal cadre post under Paragraph 3(3) of the Presidential Order. As the method of appointment prescribed under Rule 3, includes appointment by transfer of senior assistants and senior stenographers working in the office of the heads of departments and the second and fourth vacancy, in the cycle of five vacancies, having been reserved in their favour, employees who do not form part of the zonal cadre, and to whom the provisions of the Presidential Order does not apply, were entitled to be appointed to the zonal cadre post of Assistant Labour Officer. Article 371-D is a special provision which marks a departure from the general scheme of the Constitution. The area of departure cannot, therefore, extend beyond what is unmistakably and specifically delineated by the words employed therein or in the Presidential Order made thereunder. Article 371-D, in effect, enables the President to make an order enabling prescription of “residence” in a part of the State for employment or appointment to a public office in the State. Clause (10) of Article 371-D gives overriding effect, both to the provisions of Article 371-D and an order made by the President thereunder, over other provisions of the Constitution and any other law in force. Thus prescription of “residence” in a part of the State of Andhra Pradesh is permissible, notwithstanding the prohibition under Article 16(2), if it is so provided under the Presidential Order. The provisions of Article 371-D, and the Presidential Order, are insulated from attack or challenge based on any other provisions of the Constitution or any other law for the time being in force. It is also not open to challenge on the ground of violation of Part III of the Constitution, (Dr. B. Sudhakar Vs. Union of India[7] Dr. Fazal Ghafoor Vs. The Principal, Osmania Medical College, Hyderabad[8]) , since the Presidential Order has been given overriding effect. In exercise of the powers conferred by clauses (1) and (2) of Article 371-D of the Constitution the President made, with respect to the State of Andhra Pradesh, the “A.P. Public Employment (Organization of Local Cadre and Regulation of Direct Recruitment) Order, 1975”, which was notified in G.S.R. 524(E) and came into force on 18.10.1975. Para 2(e) thereof defines “local cadre” to mean any local cadre of posts under the state government organized pursuant to paragraph 3, or constituted otherwise for any part of the State. Para 3 relates to organization of local cadres and, under sub-para (1) thereof, the State Government was required, within a period of twenty-seven months from the commencement of the Order, to organize classes of posts in the civil services and classes of civil posts under the State into different local cadres for different parts of the State to the extent, and in the manner, provided thereafter in the Presidential Order. With a view to enable organization thereafter, of different local cadres for different parts of the State, a proviso was inserted to Para 3(1), as notified in G.O.Ms. No. 34 dated 24.01.1981, which enables the President, notwithstanding the expiration of the period of twenty seven months specified in Para 3(1), to make an order, whenever he considers it expedient to do so, requiring the State Government to organize any classes of posts in the civil services of and classes of civil posts under the State into different local cadres for different parts of the State. Under Para 3(2) posts belonging to the category of junior assistants, and to each of the other categories equivalent to and lower than junior assistants in each department in each district, shall be organized into a separate cadre. Para 3(3) provides that posts belonging to each non-gazetted category, other than those referred to in sub-paragraph (2), in each department in each zone shall be organized into a separate cadre. Under para 3(4) posts belonging to each specified gazetted category in each department in each zone are required to be organized into a separate cadre. The object of organizing different local cadres for different parts of the State is clear from Paragraphs 4 and 5 of the Presidential Order. Under Para 4(1), persons holding posts, required to be organized into local cadres, were to be allotted to such cadres by the state government in accordance with the principle and procedure specified in the Presidential Order. Under Para 5(1) each part of the State, for which a local cadre has been organized in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment, seniority, promotion, transfer etc. On a local cadre being organized under Para 3(1) each part of the State, for which such a local cadre was organized, is required to be treated as a separate unit and it is only from amongst persons allotted thereto are appointments to be made, promotions effected and their seniority determined. As stipulated in Para 5(1), a local cadre is a distinct and separate unit and, for matters prescribed therein, persons who do not belong to the said local cadre or those who belong to other local cadres cannot form part thereof. A local cadre, once organized, cannot be meddled with. The consequence, of organizing different local cadres for different parts of the State, is that each of these local cadres, being a distinct and separate unit, in effect, provides for reservation on the basis of residence in a part of the State of Andhra Pradesh. But for the protection conferred on it by the Presidential Order, any such provision would have been void under Article 13(2) as it would contravene Article 16(2) of the Constitution of India. Para 14 is the savings clause and provides that nothing in the Presidential Order would apply, among others, to any post in offices of the heads of departments. As posts in the offices of the heads of departments are not covered by the Presidential Order they are not entitled for its protection. Local area reservation, or reservation on the basis of residence in a part of the State, cannot be provided to such posts as it would then contravene Article 16(2) of the Constitution which prohibits discrimination in respect of any employment or office under the State on the ground of residence. It was not disputed before the Tribunal, nor has it been disputed before us, that the posts of Assistant Labour Officers, under the A.P. Labour Subordinate Service Rules, is a post in respect of which a zonal cadre has been organized under Para 3(3) of the Presidential Order. It is also not in dispute that senior assistants and senior stenographers, in the A.P. Ministerial Services, working in the head office of the labour department, factories department and boilers department do not fall under the ambit of the Presidential Order, in view of Para 14 thereof, and have not been organized into local cadres. Since the post of Assistant Labour Officer is a zonal cadre post, and forms part of the zonal cadre, the question which arises for consideration is whether persons, who do not belong to such a local zonal cadre, can be permitted to be considered for appointment by transfer to such zonal cadre posts. A similar question arose for consideration in V. Jagannadha Rao1 wherein the validity of the