THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.25461 of 2002 November 18, 2011 Between: K.Jagadiswara Rao, S/o.K.V. Kishan Rao And others … Petitioners And The Transport Commissioner, B.R.K.R. Bhavan, Hyderabad And another ... Respondents THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.25461 of 2002 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) As the petitioners are aggrieved by the order dated 06.11.2002 of the Andhra Pradesh Administrative Tribunal made in O.A.No.1295 of 1994, they filed the instant writ petition seeking writ of certiorari to quash the order of the Tribunal, whereby and whereunder their original application to declare the action of the respondents to repatriate them to their parent departments pursuant to the proceedings dated 22.2.1994 of the first respondent and consequential orders dated 15.3.1994 of the second respondents as illegal and arbitrary, was dismissed. The fact of the matter which is not in dispute is as follows. In exercise of the powers conferred under Article 371-D(1) and (2) of the Constitution, the President of India made the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 (hereafter, the Presidential Order). Para 3 thereof mandates that the Government shall organize classes of posts in the civil services of the State into different local cadres for different parts of the State as provided in the Presidential Order. Para 5 postulates that each local cadre so organized shall be a separate unit for the purposes of recruitment, appointment, discharge, seniority, promotion and transfer, and such other matters as may be specified by the State Government. Sub-paragraph (2) of Para 5 enables the Government to transfer a person from one local cadre to another local cadre in four different situations as enumerated infra. As per Para 14 the Presidential Order shall not apply to the posts in the Secretariat, in the office of the head of the departments, in a special establishment, a State level office or institution and in the major development projects other than non-Gazetted categories in Ministerial Service. For the sake of ready reference, we may quote Para 5 below. Para 5. Local cadres and transfer of persons:- (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, discharge, seniority, promotion and transfer, and such other matters as may be specified by the State Government, in respect of that category of posts. (2) Nothing in this Order shall prevent the State Government from making provision for – (a) the transfer of a person from any local cadre to any Office of Establishment to which this Order does not apply, or vice-versa; (b) the transfer of a person from a local cadre comprising posts in any Office or Establishment exercising territorial jurisdiction over a part of the State to any other local cadre comprising posts in such part, or vice-versa; (c) the transfer of a person from one local cadre to another local cadre where no qualified or suitable person is available in the latter cadre on where such transfer is otherwise considered necessary in the public interest; and (d) the transfer of a person from one local cadre to another local cadre on a reciprocal basis, subject to the condition that the person so transferred shall be assigned seniority in the latter cadre with reference to the date of his transfer to that cadre. In the Transport department as per Paragraphs 3 and 4 of the Presidential Order – there is no dispute – the posts of Junior Assistants/Typists in the ministerial service are organized as district cadre posts. Some time in 1989, the Government sanctioned various categories of additional posts in the Transport department. As there was ban for constitution of District Selection Committees the Government issued instructions to fill up the posts of Junior Assistants/Typists as per Para 3(2) of the Presidential Order by transfer of persons working in other departments duly following Rule 22 of the Andhra Pradesh State and Subordinate Service Rules, 1996 (hereafter, the General Rules). In 1991 so as to fill up the vacancies of Junior Assistants in his office, the Joint Commissioner and Secretary, Regional Transport Authority (second respondent herein) addressed D.O. letter to the first respondent seeking instructions. In response thereto, it appears that the Government issued memo dated 05.3.1991 advising to fill up the vacancies by taking eligible candidates from the Government departments only and not through Corporations. Sequel thereto a committee consisting of three officers was constituted by the first respondent vide proceedings dated 12.3.1991. The Joint Commissioner then sent circular dated 05.8.1991 to various departments for sponsoring candidates for being appointed in the Transport department. At the relevant time the first petitioners 1 to 3 were working as Junior Assistants in Judicial department, Industries department and Medical & Health department respectively. In response to the circular of the second respondent dated 05.8.1991 they submitted their applications for being appointed in the office of the second respondent. It is the case of the petitioners that screening committee appointed by the first respondent selected them and by order dated 27.2.1992 they were appointed by transfer. About two years thereafter the first respondent issued the proceedings vide M.No.8912/C2/92, dated 22.2.1994 directing the second respondent to repatriate five Junior Assistants including the petitioners and two others to their parent departments. The consequential order, accordingly, was issued on 15.3.1994 directing the concerned Regional Transport Officer to repatriate the petitioners to their respective parent departments. Even before these orders could be served on them the petitioners filed original application before the Tribunal mainly contending that Rule 16A of the General Rules enables transfer from one local cadre to another local cadre and, therefore, their appointment by transfer in the Transport department does not violate the Presidential Order; they have become members of ministerial service; and, therefore, they cannot be repatriated from Transport department. The respondents filed counter affidavit opposing the original application. It was mainly urged that the Joint Commissioner while addressing the Government departments on 05.8.1991 stipulated conditions and one such condition was that the appointment by transfer will be considered only from among the Junior Assistants from the local cadre of Hyderabad. The Joint Commissioner has no power to appoint Junior Assistants by transfer from one local cadre to another local cadre and that it is only the Government under Para 5(2)(c) of the Presidential Order which can do so in public interest and that the appointment of the petitioners in Transport department is contrary to the Presidential Order. The Counsel for the petitioners would contend that the petitioners’ appointment in Transport department was authorized by the Government itself vide their orders in Memo dated 05.3.1991; their applications were scrutinized by a screening committee before they were appointed; they were also included in the seniority list of Junior Assistants in Transport department and that during the pendency of original application before the Tribunal and the writ petition before this Court the petitioners were promoted as Senior Assistants as well as Administrative Officers. He would urge that if they are now repatriated they would suffer hardship and it would be illegal. The Assistant Government Pleader for Services–II would submit that the appointment of petitioners in Transport department was not ordered by the Government and, therefore, it was illegal. Nextly she would submit that even as per the circular issued by the Joint Commissioner, Junior Assistants from the local cadre of Hyderabad alone ought to have been considered but the Joint Commissioner erroneously appointed the petitioners from other Districts which is contrary to the Presidential Order. She relies on the decision of the Supreme Court in V.Jagannadha Rao v State of Andhra Pradesh[1]. There is no dispute that the petitioners 2 and 3 were appointed in Ranga Reddy District local cadre as Junior Assistants in the office of the General Manager, District Industrial Centre, in the office of the Medical Officer, Karvan respectively. It is also no dispute that the first petitioner was appointed as Junior Assistant in the District Court, Nalgonda. They certainly did not belong to Hyderabad local cadre. The question for consideration, therefore, is whether their appointment by transfer from local cadre of Ranga Reddy District and Nalgonda District as Junior Assistants in the office of the second respondent was not violative of the Presidential Order. Para 5(2) of the Presidential Order enables the Government alone to order transfer of persons from one local cadre to another local cadre in the following circumstances: (i) the transfer of a person from any local cadre to any Office of Establishment to which Presidential Order does not apply, or vice-versa; (ii) the transfer of a person from a local cadre comprising posts in any Office or Establishment exercising territorial jurisdiction over a part of the State to any other local cadre comprising posts in such part, or vice-versa; (iii) the transfer of a person from one local cadre to another local cadre where no qualified or suitable person is available in the latter cadre or where such transfer is otherwise considered necessary in the public interest; and (iv) the transfer of a person from one local cadre to another local cadre on a reciprocal basis. There is no dispute that appointment of the petitioners does not come within Para 5(2)(a), (b) or (d) of the Presidential Order. There is also no dispute that the appointment of the petitioners from local cadres of Ranga Reddy and Nalgonda to the local cadre of Hyderabad can be sustained only if the Government had passed orders under Para 5(2)(c). Though a submission is made that the Joint Commissioner appointed the petitioners as per the instructions in Government Memo No.141/Tr.I(I)/91-2, dated 05.3.1991 it is not possible to countenance such submission. The Presidential Order does not enable the Government to delegate the power under Para 5(2)(c) nor it is demonstrated before us that the Joint Commissioner was competent to appoint Junior Assistants from other district local cadres other than Hyderabad. Indeed as noticed by the learned Tribunal even in the circular the Joint Commissioner imposed a condition that the consideration for appointment by transfer in the office of the Joint Commissioner shall be restricted to the local cadre of Hyderabad. Consideration of this aspect by the learned Tribunal is as follows. The learned counsel for applicants in support of his contentions relied upon a decision of the Apex Court in the case of State of A.P. v Sadanandam, reported in AIR 1989 SC 2060. It is to be stated here that this judgment of the Apex Court has been overruled by a subsequent judgment of the Supreme Court in the case of V.Jagannadha Rao v State of A.P., reported in AIR 2002 SC 77, according to which transfer from one local cadre to another local cadre is not permissible. In the present case, it is clear that the applicants belong to different local cadres. Applicant No.2 is from Industries Department who was working in R.R. district at the time of his selection. Applicant No.1 was working in Nalgonda District Judge’s Court. Applicant No.3 was working in Medical Department. They were appointed subsequent to the issuance of the Presidential Order and if their appointment is not in accordance with the provisions of Presidential Order, they have to be repatriated to their parent department. In fact the very first condition stipulated at the time of addressing other Departments as could be seen from the counter is that they should belong to the local cadre of Hyderabad. When the applicants do not fulfil the requirements laid down under the provisions of Presidential Order they cannot claim to continue in Transport Department. Accordingly, the impugned orders were issued repatriating them to their parent department. If this is so, there is nothing illegal or irregular in the impugned orders. The decision of the Supreme Court in V.Jagannadha Rao is an authority for the proposition that the appointment by transfer to a different local cadre can only be made by the Government under Para 5(2)(c) of the Presidential Order. The relevant observations from the said decision may be beneficially excerpted herein below. It is to be noted that para 5(1) of the Presidential Order is in terms of para 3(3) thereof. Para 3(3) postulates that each department in each zone shall be organised into a separate cadre. Para 5(1) speaks of 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 the category of posts and each part of the State for which local cadre has been organised in respect of any category of posts is required to have a separate unit for the aforesaid purposes. Para 5(2) is in the nature of an enabling provision which authorizes the State Government to make provisions for transfer in certain specified circumstances. The present dispute relates to para 5(2)(c). It speaks of a “transfer”. Attempt of the appellants is to give enlarged meaning to the expression to include promotional aspects. It has been contended in that context that though para 5(1) treats promotion and transfer separately, yet that distinction would not be applicable to cases covered by para 5(2). The contention is clearly untenable. … … … Necessarily, therefore, if it is construed and held that the Presidential Order prohibits consideration of the employees from the feeder category from other units then such a rule made by the Governor under the proviso to Article 309 of the Constitution will have to be struck down. Then again in exercise of powers under para 5(2) of the Presidential Order if the State Government makes any provision, which is outside the purview of the authority of the Government under para 5(2) of the Order itself, then the said provision also has to be struck down. Having construed the Rules framed by the Governor under proviso to Article 309 of the Constitution from the aforesaid standpoint, the conclusion is irresistible that the said Rule to the extent indicated by the Tribunal is constitutionally invalid and its conclusion is unassailable. Thus appointment of the petitioners by the Joint Commissioner in Hyderabad is contrary to the Presidential Order. For this reason while issuing proceedings dated 22.2.1994, the Transport Commissioner directed repatriation of the petitioners. In the said proceedings, it is stated as below. The posts of Junior Assistants/Typists are district cadre posts as per rule 3(2) of Andhra Pradesh Public Employment Order, 1975. In so far as Transport Department is concerned, the posts of Junior Assistants/ Typists is organized into district cadre. According to Para 5(2) of Presidential Order, the Government is the only competent authority for inter-local cadre transfers. Any departmental transfer is contrary to presidential order. Further the Government have amended rule 16 of Andhra Pradesh Ministerial services vide G.O.Ms.No.665/ G.S. (Services B) Department, dt.14.12.90. According to amendment Rule 16 of Andhra Pradesh Ministerial Services Rules, all the transfers of probationers approved probationers at their request from the unit of the office of the Head of the Department originally allotted to another unit have to be made by the Head of the Department with the concurrence of the other Heads of Department. As per amended Rule 16 of Andhra Pradesh Ministerial Service Rules the concurrence of this office have not been obtained while effecting the departmental transfers. Thus the Jt. Transport Commissioner & Secretary, Regional Transport Authority, Hyderabad violated Presidential Order and Rule 16 of Andhra Pradesh Ministerial Service Rules. In view of the above the Jt. Transport Commissioner and Secretary, RTA, Hyderabad is requested to repatriate the departmental transfers from other district cadres to their parent departments as their appointment is against presidential order and report compliance within a week. After giving anxious consideration to the issue raised before us, we do not find any error much less grave error apparent on the face of record warranting interference with the well considered order of the learned Tribunal. The writ petition is, therefore, liable to be dismissed. In the result, for the above reasons, the writ petition is dismissed without any order as to costs. _______________ (V.V.S.RAO, J) ___________________ (K.G.SHANKAR, J) November , 2011 YS [1] AIR 2002 SC 77