*THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN +WRIT PETITION No.4690 OF 1995 %Dated 20.09.2005 # Dr.N.Ram Gopal, S/o N.Ramana, R/o H.No.6/773, Sankarapuram, Cuddapah. …PETITIONER VERSUS $ 1. The Executive Officer, Tirumala Tirupati Devasthanam, Tirupathi. And two others. …RESPONDENTS !Counsel for Petitioner: MR.P.Rajendra Reddy, Counsel for the Petitioner ^Counsel for the Respondents: MR.S.Srinivas, Standing Counsel for the Respondents <GIST: > HEAD NOTE: ? Cases referred AIR 1991 SUPREME COURT 2113 2 AIR 1995 ANDHRA PRADESH 86 3 AIR 1970 SC 1150 4 AIR 1967 SC 884. 5 AIR 1981 SC 53 6 (2004) 5 SCC 263 7 AIR 1979 (SC) 193 8 AIR 1995 (AP) 86 (FB) 9 1988(2) ALT 227 10 (2002) 5 ALT 454 11 AIR 1991 (SC) 2113 12 2002(1) ALD 4(FB 13 AIR 1967 (SC) 884 14 AIR 1981 (SC) 53 15 2004 (5) SCC 263 16 AIR 2002 SC 77 17 (2001) 8 SCC 416 18 AIR 1970 SC 422 19 AIR 1993 SC 1365 20 2003 (4) ALD 96 THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.No.4690 OF 1995 Date: 20.09.2005 Between: Dr.N.Rama Gopal, S/o N.Ramana R/o H.No.6/773, Sankarapuram, Cuddapah. … Petitioner and 1. The Executive Officer, Tirumala Tirupati Devasthanam, Tirupathi. And two others. … Respondents. THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.No.4690 OF 1995 ORDER: Appointment of the 3rd respondent, as Assistant Professor of Indian Medicine in S.V.Ayurvedic College, Tirumala Tirupati Devasthanam, (for short ‘T.T.D.’), vide proceedings dated 18-06-1994, is questioned in this writ petition as being contrary to the provisions of the A.P.Public Employment Organisation of Local Cadres and Regulation of Direct Recruitment Order, 1975, notified in G.O.Ms.No.674, dated 20- 10-1975. The facts, to the extent necessary for this writ petition, are that the 2nd respondent issued an advertisement on 14-09-1993 inviting applications for two posts of Assistant Professors in S.V.Ayurveda College and Hospital run by the T.T.D. One of these two posts was reserved for the Scheduled Tribes. Three candidates were called for interview on 22-01-1994, viz., the petitioner, the third respondent and one Dr.N.Chanda. While the petitioner was the only Scheduled Tribe candidate from Zone-IV, (comprising of Chittoor, Ananthapur, Cuddapah and Kurnool Districts), the other two candidates were from the Telangana area, outside the local area of the T.T.D. The 3rd respondent was selected on the basis of merit and appointed as Asst. Professor vide proceedings of the 1st respondent dated 18.06.1994. A counter affidavit is filed by the 1st respondent, wherein it is stated that the post of Assistant Professor, under Scheduled Tribe category, was not reserved for candidates from the local area, that the third respondent belongs to Telangana area, that he is an in-service candidate, that he was appointed as a Medical Officer in S.V.Ayurveda College, Tirupati, during the year 1989 and that for all purposes, he was treated as a local candidate since he had been residing at Tirupati for the past six years. It is stated that the third respondent was selected on the basis of his merit and not on the basis of his being a local candidate, that the zonal system is not followed in T.T.D. for appointment in various cadres including medical posts in S.V.Ayurveda College, Tirupati, that a list of candidates was obtained from the Regional Employment Exchange, Hyderabad and that interviews were conducted from amongst those candidates whose names were sponsored by the Regional Employment Exchange. It is further stated that in recruitments to teaching and medical posts,in S.V.Ayurveda College at Tirupati, during the years 1984, 1987 and 1989, applications were invited from all eligible candidates without restricting it only to local candidates. Candidates from several regions in the State were selected and appointed, more particularly in the backlog reserved vacancies of Medical Officers in S.V.Ayurveda College, Tirupati, which were filled up during the year 1989. It is also stated though the petitioner possessed the requisite educational qualifications prescribed for the post, he did not come up higher in merit and was therefore not selected, that the post of Assistant Professor in Indian System of Medicine is higher than the post of Civil Assistant Surgeon, these two posts are not inter transferable, and that selection of the third respondent was approved by the Selection Committee, the Commissioner, Indian Medicines and Homeopathy, Hyderabad, and the Vice-Chancellor, University of Health Sciences. The petitioner a resident of Cuddapah District, contends that since T.T.D. is in zone-IV, it is he and not the 3rd respondent who is from the Telangana Area, who should have been appointed in the sole vacancy, reserved for Scheduled Tribe candidates, in the posts of Assistant Professor in Indian Medicine, S.V.Ayurveda College, Tirupati. The questions, which therefore arise for consideration in this writ petition, are (1) whether the Presidential Order would apply to posts in the T.T.D?; (2) whether posts in the T.T.D. are posts in a civil service or civil posts under the State or posts under a local authority within the State of A.P.? and (3) Whether the State Government, in exercise of its rule making power, under the A.P.Charitable and Hindu Religious Institutions and Endowments Act, has extended the provisions of the Presidential order to posts in the T.T.D? Questions 1 & 2: Sri P.Rajender Reddy, Learned counsel for the petitioner, would submit that S.V.Ayurveda College, Tirupati, is affiliated to the S.V. University, is under the supervision and control of the T.T.D. and as such is governed by the provisions of the Presidential Order. Learned Counsel would refer to the third schedule, to the “A.P.Public Employment Organisation of Local Cadres and Regulation of Direct Recruitment Order” (hereinafter referred to as the “Presidential Order”), which specifies the categories of posts, required to be organized into local cadres, for reservation in favour of local candidates, and to Rule 8 (5) of the Presidential Order, whereunder 60% of posts under the State Government belonging to the category of Civil Assistant Surgeons, to be filled by direct recruitment, are to be reserved in favour of and allocated among local candidates. Learned counsel would place reliance on the judgment of the Supreme Court in GOVT OF A.P. v. A.SURYANARAYANA RAO , wherein it was held that Article 371-D is of exceptional nature and its object is to provide equal opportunities in the backward areas in respect of the specified posts mentioned in the Third Schedule which are included in the local cadre which thus become zonal posts. Learned counsel would submit that, keeping in mind the beneficial provisions of the Presidential Order, made under Article 371-D of the Constitution of India, local area reservation is required to be provided for posts upto the cadre of Civil Assistant Surgeon in the T.T.D. also and since the post of Assistant Professor in the 2nd respondent college is interchangeable and equivalent to that of an Assistant Civil Surgeon, the said post is also required to be reserved, in favour of local candidates, in accordance with the provisions of the Presidential Order. Reliance is placed on a Full Bench Judgment of this Court in B.SUDHAKAR v UNION OF INDIA , to contend that the single post of Assistant Professor, reserved for the Scheduled Tribes, should also be reserved in favour of local candidates and since the petitioner is the only Scheduled Tribe local candidate to have applied for the post, it is he and not the third respondent who should have been appointed. Sri S.Srinivas, learned counsel appearing on behalf of the T.T.D., would submit that the T.T.D. is not a “local authority”, under paragraph 2 of the Presidential Order, as it is not subject to the control of the State Government. Reliance is placed on the Judgment of the Supreme Court in S.L.AGARWAL v. THE GENERAL MANAGER, HINDUSTAN STEEL LIMITED in this regard. Learned counsel would submit that the writ petition as filed is misconceived, inasmuch as (1) Posts in the T.T.D. are not civil posts; (2) T.T.D. is a separate legal entity over which the State Government has no financial control; (3) posts in the T.T.D. are not “Civil posts”, and the Presidential Order has therefore no application; (4) the post of Assistant Professor in Indian Medicine is higher than the post of Civil Assistant Surgeon, (while the scale of pay of Assistant Professor in Indian Medicine, under revised pay scales, is Rs.3880-8140, the scale of pay of Civil Assistant Surgeon in Allopathy is Rs.3640-7580), and (5) para 8(v) of the Presidential Order, which applies only to the post of Civil Assistant Surgeons, would have no application to the higher post of Assistant Professor in Indian Medicine. Learned counsel would submit that it is only for civil posts, under the State, that the State Government is obligated to organize local cadres and, since posts in the T.T.D. are not “Civil Posts” under the State, the provisions of the Presidential Order have no application. Reliance is placed on THE STATE OF ASSAM v. KANAK CHANDHRA DUTTA , MATHURADAS MOHANLAL KEDIA v. S.D.MUNSHAW and Dr.GURJEEWAN GAREWAL v. Dr.SUMITRA DASH in this regard. ARTICLE 371-D OF THE CONSTITUTION OF INDIA – ITS BACK GROUND: Before dealing with the aforementioned questions, it would be useful to refer, in brief, to the historical background in which Article 371D came to be inserted in the Constitution and the Presidential Order came to be made. In 1919, the Nizam of Hyderabad issued a Firman promulgating what came to be known as Mulki Rules. The Nizam confirmed these Rules by another Farman issued in 1949. Those Rules provided interalia 15 years’ residence in the State as an essential qualification for public employment. In 1955, the Rajprmukh, in exercise of his powers under the proviso to Article 309 of the Constitution of India, framed the Hyderabad General Recruitment Rules, 1955 in supersession of all previous rules on the subject. One of these Rules laid down that a domicile certificate would be necessary for appointment to the State or subordinate service and the issue of such certificate depended upon residence in the State for a period of not less than 15 years. On November, 1, 1956, as a result of the coming into force of the States Reorganization Act, the State of Hyderabad was trifurcated. Telangana region became a part of the newly formed State of Andhra Pradesh while Marathwada and Karnataka regions ultimately became parts of Maharashtra and Karnataka. At the time of formation of Andhra Pradesh, certain safeguards were envisaged for the Telangana area in the matter of development, employment opportunities and educational facilities. Various steps taken and the safeguards provided to give effect to the assurances did not yield the desired results and, on the contrary, gave cause for dissatisfaction sometimes in the Telangana area and sometimes in the other areas of the State, which led to public agitations and disruption of normal life. A concerted effort was made by several leaders to analyse the factors, giving rise to dissatisfaction, and as a result thereof, a formula was evolved to achieve fuller emotional integration of the people of Andhra Pradesh, for promoting accelerated development of the backward areas of the State and for providing equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public services. This formula, commonly known as the six point formula, was given effect to by a Bill introduced in Parliament for enacting the Constitution (32nd Amendment) Act, 1972, whereby Article 371D and 371E were inserted in part XXI of the Constitution of India. (Chief Justice of A.P. Vs. L.V.A.Dikshitulu; Dr. B.Sudhakar Vs. Union of India; Dr.Fazal Ghafoor Vs. Principal, Osmania Medical College). The statement, objects and reasons for the Constitution (Thirty-second Amendment) Act, 1973, whereby Article 371-D was introduced in the Constitution of India, reads as under: "When the State of Andhra Pradesh was formed in 1956, certain safeguards were envisaged for the Telengana area in the matter of development and also in the matter of employment opportunities and educational facilities for the residents of that area. The provisions of clause (1) of Article 371 of the Constitution were intended to give effect to certain features of these safeguards. The Public Employment (Requirement as to Residence) Act, 1957, was enacted inter alia to provide for employment opportunities for residents of Telengana area. But in 1969 (in the case, A.V.S. Narasimha Rao v. State of Andhra Pradesh, (1970) 1 SCR 115 : (AIR 1970 SC 422), the Supreme Court held the relevant provision of the Act to be unconstitutional in so far as it related to the safeguards envisaged for the Telengana area. Owing to a variety of causes, the working of the safeguards gave rise to a certain amount of dissatisfaction sometimes in the Telengana area and sometimes in the other areas of the State. Measures were devised from time to time to resolve the problems. Recently several leaders of Andhra Pradesh made a concerted effort to analyse the factors which have been giving rise to the dissatisfaction and find enduring answers to the problems with a view to achieving fuller emotional integration of the people of Andhra Pradesh. On the 21st September 1973, they suggested certain measures (generally known as the Six Point Formula) indicating a uniform approach for promoting accelerated development of the backword areas of the State so as to secure the balanced development of the State as a whole and for providing equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public services. This formula has received wide support in Andhra Pradesh and has been endorsed by the State Government. 2. This Bill has been brought forward to provide the necessary constitutional authority for giving effect to the Six-Point Formula in so far as it relates to the provision of equitable opportunities for people of different areas of the State in the matter of admission to educational institutions, and public employment and constitution of an Administrative Tribunal with jurisdiction to deal with certain disputes and grievances relating to public services. The Bill also seeks to empower Parliament to legislate for establishing a Central University in the State and contains provisions of an incidental and consequential nature including the provision for the validation of certain appointments made in the past. As the Six-Point Formula provides for the discontinuance of the Regional Committee constituted under clause (1) of Article 371 of the Constitution, the Bill also provides for the repeal of that clause." ARTICLE 371-D OF THE CONSTITUTION OF INDIA: Clauses (1) and (2) of Article 371-D of the Constitution of India read as under: “371D. 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 organize any class or classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot in accordance with such principles and procedure as may be specified in the order the persons holding such posts to the local cadres so organized; b. specify any part or parts of the State which shall be regarded as the local area – (i) for different recruitment to posts in any local cadre (whether organized in pursuance of an order under this article or constituted otherwise) under the State Government; (ii) for different recruitment to posts in any cadre under any local authority within the State; and (iii) for the purposes of admission to any University within the State or to any other educational institution which is subject to the control of the State Government; c. specify the extent to which, the manner in which and the conditions subject to which, preference of reservation shall be given or made – (i) in the matter of direct recruitment to posts in any such cadre refereed to in sub-clause (b) as may be specified in this behalf in the order; (ii) in the matter of admission to any such University or other educational institution referred to in sub-clause (b) as may be specified in this behalf in the order, to or in favour of candidates who have resided or studied for any period specified in the order in the local area in respect of such cadre, University or other educational institution, as the case may be. Article 371-D of the Constitution of India is intended to provide for equitable opportunities and facilities for the people belonging to different parts of the State. It aims at maintaining the integrity of the State and to dispel any feeling of one region dominating the other. While interpreting the Presidential Order, the philosophy behind Article 371-D of the Constitution of India cannot be lost sight of. ( M.Shyam Sunder Vs. Govt. of A.P.). The primary purpose of incorporating Article 371-D was (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 different areas of the State in the matter of education, employment and career in public service. (L.V.A.Dikshitulu 7 supra). Article 371-D of the Constitution of India is a special provision, for the State of Andhra Pradesh, which makes a departure from the general scheme of the Constitution of India. (Govt. of A.P. Vs.A.Suryanarayana Rao). Article 371-D(1) is in general terms and applies to public employment as a whole. Article 371-D(2) which, in particular, applies to direct recruitment, is only complementary to clause (1) and particularizes the matters to which an order made under clause (1) provides for. (A.Suryanarayana 11 supra). THE PRESIDENTIAL ORDER: After insertion of Article 371-D of the Constitution, by the Constitution (Thirty-second Amendment) Act, 1973, the President of India, issued the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 (hereinafter referred to as “the Presidential Order”). The Presidential Order was intended to provide for equitable opportunities and facilities for the people belonging to different parts of the State of Andhra Pradesh, in the matter of public employment. Para 3 of the Presidential Order casts an obligation on the State Government to organise classes of posts in the civil services and the 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 in the Presidential Order. The enabling provision for organisation of different local cadres is intended to achieve the main objective of Article 371-D, namely, to provide equitable opportunities to different areas of the State, in the matter of employment and career prospects in public services as well as 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. “Local area”, “Local authority”, “Local cadres”, “State Government” and “Zone” are defined in paragraphs 2(c ), (d), (e),(k) and (m) of the Presidential Order to mean:- “c) Local Area’ in relation to any local cadre, means the local area specified in paragraph 6 for direct recruitment to posts in such local cadre, and includes, in respect of posts belonging to the category of Civil Assistant Surgeons the local areas specified in sub.paragraph (5) of paragraph 8 of this order. d) Local Authority’ does not include any local authority which is not subject to the control of the State Government; e) Local cadre means any local cadre of posts under the State Government organized in pursuance of paragraph.3 or constituted otherwise for any part of the State.” k) “State Government” means the Government of Andhra Pradesh m ) “zone” means the zone specified in the second Schedule comprising the territories mentioned therein. Paragraph 3 relates to organization of local cadres, paragraph 4 to allotment of persons, paragraph 5 to local cadres and transfer of persons, Paragraph 6 to local areas, Para 7 to local candidates and qualifications for recruitment to the post as a local candidate, and Paragraph 8 to reservation in the matter of direct recruitment. Paragraph 8(v) reads thus: “60% of the posts under the State Government belonging to the category of Civil Assistant Surgeons to be filled by direct recruitment at any time shall be reserved in favour of and allocated amongst the local candidates in relation to the local area specified in Column (1) of the Table below in the respective ratios specified in the corresponding entry in column (2) thereof.” ZONE LOCAL AREA RATIO I Districts of Srikakulam and Visakhapatnam 13 II Districts of East Godavari and West Godavari and Krishna 18 III Districts of Guntur, Prakasam and Nellore 15 IV Districts of Chittoor, Cuddapah, Anantapur and Kurnool 18 V Districts of Adilabad, Karimnaar, Waranal and Khammam 15 VI Districts of Hyderabad (Excluding the City of Hyderabad), Nizamabad, Mahaboobnaar, Medak and Nalgonda 17 VII City of Hyderabad 4 Paragraph 8(vi) provides that while determining under paragraph 8, the number of posts to be reserved in favour of local candidates any fraction of a post shall be counted as one. Paragraphs 10 and 11 of the Presidential Order read thus: “10. POWER TO AUTHORIZE ISSUE OF DIRECTIONS: 1) The president may, by order, require the State Government to issue such directions as may be necessary or expedient for the purpose of giving effect to this order to any local authority and such local authority shall comply with such directions. 2) The state Government may, for the purpose of issuing any direction under sub paragraph (1) or for satisfying itself that any directions issued under sub paragraph (1) have been complied with, require, by order in writing any local authority to furnish them such information, report or particulars as may be specified, in the order and such local authority shall comply with such order. 11.ORDER TO HAVE OVER RIDING EFFECT: The provisions of this order shall have effect notwithstanding anything contained in any statute, ordinance, rule regulation or other order made before or after the commencement of this order in respect of direct recruitment to posts under the state Government or any local authority.” Among the zones specified in the second Schedule is zone (iv) comprising Chittoor, Cuddapah, Anantapur and Kurnool District. Since both Tirumala and Tirupati are in Chittoor District, it is contended that the posts in TTD, located within Chittoor District, falls within zone (iv) and posts in the T.T.D. are, therefore, required to be reserved for candidates from zone (iv) alone and not made available to those who do not fall within the zone. On an analysis of the provisions of the Presidential Order, it is clear that having regard to historical compulsions which have led to the insertion of Art. 371D, the Presidential Order provides the framework for intra State compartmentalization of certain posts under the rubric of local cadres, constituted for parts of the State and protects the service conditions of members allotted or recruited to such local cadres. Local cadres are thus the result of historical compulsions engendered by economic and other differentia, operating between parts of the State of Andhra Pradesh, and of the felt grievances of residents of such parts of the State. It is well to remember the historical compulsions which have led to the enactment of the Presidential Order, which is buttressed by the overriding effect given to the provisions of the Presidential Order not only against the exercise of majoritarian political and executive choices of the State, but is also made operative against all other provisions of the Constitution of India (Article 371-D (10) read with para 11 of the Presidential Order) (G.Anantha Reddy Vs. Andhra Pradesh Admn. Tribunal, Hyderabad). The provisions of Article 371-D and the Presidential Order are insulated from any