THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE C.V. RAMULU WRIT PETITION Nos.10277, 15705, 15730, 15769, 15771, 15845, 16030, 16034 & 16178 of 2008 Common order: ( per Hon’ble Sri Justice Ghulam Mohammed ) These batch of writ petitions are ﬁled by the State against the decision of the Andhra Pradesh Administrative Tribunal, Hyderabad, dated 3-4-2008 made in OA No.5618 of 2007 and batch. 2. The subject matter in all these cases is connected and the bone of contention is also same, hence they are heard together and are being disposed of by this common order. For adjudicating these writ petitions, facts stated in WP No.10277 of 2008, which is ﬁled against the decision in OA No.5618 of 2007 are adverted to. 3. The challenge in OA No.5618 of 2007 and batch of other OAs was to Rule 10 of the Special Rules issued in GO Ms.No.188, Home (Courts C) Department, dated 30-3-1992 and the consequential notiﬁcation dated 29-12-2008 issued to ﬁll-up the posts of Assistant Public Prosecutor for short, “APP” Category-7 treating it as zonal posts, as being arbitrary, illegal and violative of Presidential Order dated 18-10-1975, re- published in GO Ms.No.674, dated 20-10-1975 called the Andhra Pradesh Public Employment, (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975, for short, “the Presidential Order” and also the action of the Selecting Authority in selecting the candidates pursuant to the notiﬁcation dated 29-12- 2006 by treating the posts of APP as zonal posts, even though the post of APP is not organized under Para 3 of the Presidential Order and not included in the Third Schedule of the Presidential Order. 4. The Andhra Pradesh Administrative Tribunal, by the impugned common order dated 3-4-2008 while allowing the said OAs observed that the posts of APP, notiﬁed through the impugned notiﬁcation No.600/R&T/Gen.1/2006, dated 29-12-2006, should have been ﬁlled up treating them as state wide posts, instead as zonal posts, but inasmuch as the selection process was completed treating the posts as zonal posts and appointments to the said APP posts are already made, without disturbing the appointments already made, directed the authorities to ﬁll up 42 unﬁlled posts by considering the claims of the applicants-respondents herein by taking into account the state wide merit, in other words, by treating the said unﬁlled posts as state wide posts and complete the consequential exercise within a period of four months thereof. Assailing the said direction, the State has ﬁled these batch of writ petitions. 5. Before going into the merits of the matter, apropos to refer to the gist of the case. 6. The State Government having thought that creation of separate prosecution agency is necessary to ensure conducting of prosecution properly and eﬃciently and also in view of the recommendations made by the Law Commission, Government of India as well as the One Man Police Commission, has established separate prosecution agency named as Director of Prosecutions vide GO Ms.No.323, Home, dated 25-5-1986. The Government acting on the representation dated 26-7-1981, made by the General Secretary, Association of Assistant Public Prosecutors, for giving gazetted status to non-gazetted posts of Assistant Public Prosecutors Grade-II/Assistant Police Prosecuting Oﬃcers as gazetted posts, issued GO Ms.No.755, Home (Courts C) Department, dated 9-12- 1981 notifying them as gazetted posts. The prosecuting staﬀ (gazetted) consists of two categories viz., Police Prosecuting Oﬃcers/Assistant Public Prosecutors Grade-I. The former category exists in Telangana Area and the latter in Andhra Area. As the posts of APPs are called with diﬀerent designations in Andhra and Telangana areas and are governed by diﬀerent set of rules, to have uniformity, it was decided to frame uniﬁed rules and organize the prosecution service with recruitment at diﬀerent levels so that opportunity should be available both for senior and junior members of the Bar to join the prosecution services. It was accordingly decided, interalia, to organize the prosecution service in hierarchy set up comprising of:- a) Assistant Public Prosecutors b) Senior Assistant Public Prosecutors c) Additional Public Prosecutors Grade-II and Grade-I d) Public prosecutors and the above services are brought under the administrative control of Director of Prosecutions. Appointing Authority for the post of APP is Director of Prosecutions, Andhra Pradesh, Hyderabad. The State Level Police Recruitment Board is the recruiting agency for the post of APP. The Government exercising the powers under proviso to Article 309 of Constitution of India and also Sections 24 and 25 of Code of Criminal Procedure, 1973, issued Special Rules for Andhra Pradesh State Prosecution Service in GO Ms.No.188, Home (Courts.C) Department, dated 30-3-1992. In the said Special Rules, the post of APP is under Category-7 and in this case we are concerned with the posts of APP under Category-7. The said posts can be ﬁlled up by direct recruitment under Rule 3 of Special Rules. Under Rule 10 of Special Rules, the Unit of appointment for the post of APP is zone wise and the post of Senior Assistant Public Prosecutor is also a zonal post. 7. Coming to the facts, the Chairman, State Level Police Recruitment Board, A.P., Hyderabad, issued notiﬁcation in Proceedings Rc.No.600/R&T/Genl.1/2006, dated 29-12-2006 for filling-up the posts of APPs. Originally 144 posts of APPs were notiﬁed and during the pendency, 4 more posts were added. 8. The case of the applicants-respondents herein is that they are eligible and qualiﬁed to be appointed to the post of APPs governed by the Special Rules. That the post of APP is an entry level gazetted post and not organized as a zonal post under Para 3 of the Presidential Order and not included in the Third Schedule of the Presidential Order and, therefore, the selection has to be made treating the posts as State wide posts. That the action of the Recruiting Agency in selecting candidates on zonal basis merit and reserving 70% of the posts to local candidates of the respective zones is bad and arbitrary. 9. It is further the case of the applicants- respondents herein that pursuant to the notiﬁcation dated 29-12-2006, they appeared for written examination and having got through the written examination, were called for viva-voce, but they were not selected in the viva-voce, in view of the action of the Recruiting Agency in adopting the selection on zonal basis, by taking the cut oﬀ marks ﬁxed for zonal basis. It is the further case of the applicants- respondents herein that if the selection is made by treating it as state wide post, the applicants- respondents herein come within the zone of consideration. It is also their case that in view of the illegal method of selection adopted by the Recruiting Agency, only 106 candidates have been selected and appointed and the applicants-respondents herein are denied selection having secured more marks than some of the selected and appointed candidates and still there are 42 vacancies and in those vacancies the case of the applicants can be considered by treating the APP posts as state wide post. 10. On the other hand, the case of the writ petitioners herein, before the Tribunal was that the selection process/procedure is speciﬁcally mentioned in the notiﬁcation dated 29-12-2006 and it was also mentioned that the notiﬁcation is being issued pending amendment to the Presidential Order by the Government of India. It was also stated that the notiﬁed vacancies were zonal-wise and that the selections will be done in accordance with the Presidential Order subject to the above said rider. It was also stated that the applicants having participated in the selection process and after not being selected are precluded from challenging the process on the ground that the posts notiﬁed ought to have treated as state wide posts. That it is not open to the applicants to rely upon a para in the notiﬁcation, which was referred to with wrong understanding of the actual legal position and what was relevant is whether the posts of APP is being ﬁlled up in accordance with law or not. It is also stated that the terms and conditions of the impugned notiﬁcation cannot override the Special Rules or the Presidential Order as under Para 11 of the Presidential Order, the provisions of the Presidential Order shall have over-riding eﬀect notwithstanding anything contained in any Statue, Ordinance, rule, regulation or other order made before or after the Presidential Order in respect of direct recruitment to posts under the State Government or any local authority. That under Rule 10 of the Special Rules, the post of APP is to be treated as zonal post, as the same is in accordance with the scope and ambit of the Presidential Order and any other interpretation would bring an incongruous and anomalous situation. 11. Heard Sri J. Sudheer, learned Special Government Pleader appearing on behalf of the learned Advocate General for petitioners and Sri.M.Panduranga Rao, Sri Unnam Muralidhar Rao, Sri G. Vidyasagar and Sri O.Manoher Reddy, learned counsel for the applicants-respondents. Perused the impugned common order passed by the Tribunal. 12. Learned Special Government Pleader appearing for the petitioners strenuously contended that the cadres of APP Gr.-II/APPO were gazetted in the year 1981 and mere conversion of a non-gazetted post into a gazetted post cannot take away the said cadre from the purview of the Presidential Order, and the letter addressed by the State Government vide Lr.No.64377/SPF/05-1, dated 6-6-2005 to the Government of India for inclusion of the post of APP in the Third Schedule of Presidential Order was done under a mistaken impression of the legal position and, therefore, the Tribunal ought not to have allowed batch of OAs based on the said letter dated 6-6-2005. It is also contended that the Tribunal erred in holding that a post, which was organized under Para-3 of the Presidential Order cease to be in the purview of the Presidential Order after the said post was made as gazetted. Learned Special Government Pleader further contended that the applicants cannot rely on a portion of the notiﬁcation and seek to treat the posts of APP as State wide posts in view of Para 11 of the Presidential Order and, therefore, the direction of the Tribunal to ﬁll-up the remaining vacancies based on State wide merit is not practicable as the selection already made was based on zonal basis and the Recruiting Agency cannot adopt two modes of selection for the same posts and, therefore, the impugned common order is liable to be set aside. 13. On the other hand, learned counsel appearing for the applicants-respondents herein contended that as there is no reservation for local candidates as per Para 8 (2) of the Presidential Order to the extent of 70 % of the posts to be ﬁlled by direct recruitment, at any time, and inasmuch the Government issued clariﬁcation to treat the posts of APPs as State wide posts for implementing the earlier order passed by the Tribunal in OA No.963 of 1993 and to prepare a state wide merit list for selection of the candidates for appointment of APPs, the Tribunal rightly directed the petitioners herein to ﬁll up the remaining vacancies on state wide merit and the Tribunal constituted under Article 323-A of the Constitution, the judgment of the Tribunal in OA No.963 of 1993 is binding on the Government since it attained ﬁnality. It is also contended that in the earlier recruitments, for the post of APPs, in the year 1992 and 1997, the post was treated as State wide post. The posts of APPs are governed by the Special Rules as on date of ﬁrst notiﬁcation issued in the year 1992 and in the year 1997 and the impugned present notiﬁcation issued in the year 2006, the procedure which was followed earlier in respect of the earlier notiﬁcations, the same procedure has to be followed now, more so in view of the clariﬁcation issued by the Government in Memo dated 1-10-1994. Learned counsel also drawn our attention to Article 309 and 371-D of the Constitution and also Sections 24 and 25 of Code of Criminal Procedure, 1908. Learned counsel relied on the decisions of the Supreme Court in K.MANJUSREE v. STATE OF AP, 1 MAHARASHTRA SRTC v. RAJENDRA BHIMRAO MANDVE2 & SECRETARY, AP PUBLIC SERVICE COMISSION v. B. SWAPNA3. 14. The matter rests on a narrow compass. Under Rule 10 of the Special Rules, the post of APP is treated as zonal post. Whether Rule 10 of the Special Rules is accordance with the scope and ambit of the Presidential Order, is the question that falls for our consideration. Under Para 3 (1) of the Presidential Order, the State Government was required, within a period of twelve months from the commencement of the Presidential 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 hereinafter provided”. The period of twelve months prescribed in Para 3 (1) was enhanced to eighteen months vide GO Ms.No.794, dated 12-11-1976 and twenty seven months vide GO Ms.No.728, dated 27-10-1977. The period of twenty seven months prescribed in Para 3 (1), for organizing diﬀerent local cadres for diﬀerent parts of the State, expired on 17-01-1978 and thereafter the State Government no longer had the power to organize diﬀerent local cadres for diﬀerent parts of the State. 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 GO Ms.No.34, dated 24-1-1981, which enables the President, notwithstanding the expiration of the period 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. In this regard, the relevant portion of Article 371-D of the Constitution, may be noted, which reads thus: “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 direct 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 direct recruitment to posts in any cadre under any local authority within the State; and (c) specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made-- (i) in the matter of direct recruitment to posts in any such cadre referred 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.” Clause (10) reads thus: “(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.” 15. The object of Article 371-D of the Constitution 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; ii) to provide equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public service. To achieve this primary object, clause (1) of Article 371-D of the Constitution 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 pubic employment and in the matter of education. Sub clause (c) (i) of Clause (2) of Article 371-D enables the President to specify in his Order, the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made in the matter of direct recruitment to posts in any local cadre under the State Government or any cadre under any local authority. Sub-clause (c) further makes it clear that residence for a speciﬁed period in the local area, can be made a condition for recruitment to any such cadre. 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 Presidential Order. 16. Under Para 3 of the Presidential Order the State Government shall 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. Under Para 3 (2) of the Presidential Order, posts in the category of Junior Assistants, and each of the other categories equivalent to, or lower than that of a Junior Assistant in each Department in each District shall be organized into a separate cadre, treating District as the Unit for recruitment, seniority etc. Admittedly the post of APP does not come under Para 3 (2). Under Para 3(3) of the Presidential Order, the posts belonging to each non- gazetted category, other than those referred to in sub- paragraphs (2) of Para 3, in each department, in each zone shall be organized into a separate cadre. Since the post of APP is above the post of Junior Assistant it would fall under Para 3 (3) of the Presidential Order. 17. The post of APP Gr-II and APP were feeder categories for the cadre of APP Gr.I and Police Prosecuting Oﬃcer (PPO) respectively. The said two promotional cadres were gazetted posts as on the date of Presidential Order came into force. Though the said cadres were gazetted categories, at the time of commencement of Presidential Order, they were organized into local cadres as the said gazetted categories were included in Third Schedule of the Presidential Order called as “Speciﬁed Gazetted Categories” in Para 3 (4) of the Presidential Order. It is to be noted that the Government vide UO Note No.97462/MC/2004-51, dated 4-10-2006 has directed that even after gazetting of a post, subsequent to coming into eﬀect of Presidential Order, the original character of reservation as provided in the Presidential Order will be retained. Perhaps, this was done to ensure the immutable character of the posts as on 18-10-1975 i.e. the date of Presidential Order, which means that the reservation to the local candidates in the category of direct recruitment will be 70 % and the same shall be maintained throughout irrespective of making the post gazetted on any date subsequent to 1975. In view of the proviso under sub-paragraph (1) of Para 3 of the Presidential Order, the Government, depending on the needs and exigencies of the running of administration will continue to notify certain non-gazetted posts as gazetted and this change in the status of the post from non-gazetted to a gazetted post will not aﬀect the reservation for local candidates and the same should continue to be 70 % in case of direct recruitments to the zonal posts for such categories, provided such posts are speciﬁed in the Third Schedule of the Presidential Order. The object of organizing diﬀerent local cadres for diﬀerent parts of the State is clear from Paras 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 categories of posts, shall be a separate unit for purposes of recruitment, appointment, seniority, promotion, transfer etc. Once a local cadre was organized under Para 3 (1) each part of the State, for which such a local cadre was organized, was required to be treated as a separate unit. Further, the applicants cannot be permitted to rely upon a para in the impugned notiﬁcation, beneﬁcial to them, which was referred to with wrong understanding of the actual legal position and what was relevant was only whether the posts of APP are being ﬁlled up in accordance with the Special Rules and Presidential Order law or not. Para 11 of the Presidential Order reads thus: “11. Order to have over-riding eﬀect:-- The provisions of the order shall have eﬀect notwithstanding anything contained in any Statue, Ordinance, rule, regulation or other order made before or after this order in respect of direct recruitment to posts under the State Government or any local authority.” 18. In view of over riding eﬀect given to the provisions of the Presidential Order under Para 11, even though the terms and conditions of the impugned notiﬁcation, it was mentioned that the treating the posts of APP as zonal posts is subject to the inclusion in the Third Schedule, though under an erroneous legal position, that cannot override the provisions of the Presidential Order in respect of direct recruitment to posts under the State Government or any local authority and, therefore, any other interpretation than the one intended and contemplated would bring an incongruous and anomalous situation. 19. The posts of APP Gr.I and Police Prosecuting Oﬃcer (PPO) are speciﬁed gazetted category posts and they are included in Third Schedule of the Presidential Order, therefore, the post are to be treated as zonal cadre posts. The next higher post i.e. Senior Assistant Public Prosecutor (earlier called as Public Prosecutor Grade-I/Police Prosecuting Oﬃcer) was itself organized into zonal post, an entry level post i.e. APP, cannot remain as a State wide post in view of Para 3(3) of the Presidential Order. We find force in the argument of the learned Special Government Pleader that when the next superior post i.e. Senior Assistant Public Prosecutor was itself organized into zonal post, the next inferior post (APP) to that cannot be treated as state wide post. Unless, a harmonious approach is made for purposeful interpretation, the whole thing would bring an incongruous and anomalous situation. At any rate, under a bona-ﬁde mistaken impression of the legal position, the Government had addressed a letter dated 6-6-2005 to the Government of India to include the post of APP in the Third Schedule of the Presidential Order. The post of APP is a speciﬁed gazetted category under Para 3 (4) and included in Third Schedule under Sl. No.16 of the Presidential Order. As the posts of APP Gr.I and Police Prosecuting Oﬃcer, which are now uniﬁed and called as APP was included in the speciﬁed gazetted category, question again including the post of APP in the Third Schedule does not arise. Therefore the observation of the Tribunal that in the year 1992 and 1997 the post of APP was being treated as