THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANANATHAN WRIT PETITION NOS. 17548, 17628, 17051, 17076, 18666, 21236, 19459, 16771 AND 23362 OF 2006 ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) Repeated attempts by the Government of Andhra Pradesh to bring about a unified cadre of teachers in government, mandal parishad and zilla parishad schools have met with little success. The last such effort, prior to Act 27 of 2005, which met its waterloo was when the Rules, in G.O.Ms.No.538 dated 20.11.1998, were declared ultravires the Presidential Order and were quashed by the Division Bench of this Court in M. Kesavulu Vs. State of A.P.[1]. Aggrieved by the order of the Division Bench in M. Kesavulu1, the A.P. United Teachers Federation filed S.L.P.Nos.7496-7510 of 2005 and the Supreme Court, by order dated 25.10.2004, stayed the contempt proceedings initiated pursuant to the order of the Division Bench. The State of A.P. also preferred S.L.P.Nos.22597-22612 of 2004 and, while granting stay of the contempt proceedings, these S.L.Ps. were directed to be tagged along with S.L.P.Nos.7496-7510 of 2004. All the S.L.Ps. are still pending before the Supreme Court. As the order of the Division Bench, in M. Kesavulu1, was not suspended by the Supreme Court, the State Government then commenced efforts to obtain approval of the President for organizing the cadre of teachers in mandal parishad and zilla parishad schools into local cadres, in yet another attempt at achieving integration of the two cadres, i.e., the teachers cadre in government schools and the teachers cadre in mandal parishad and zilla parishad schools. The Central Government, vide letter dated 7.3.2005, sought information from the Government of A.P. whether (i) organization of teaching and non-teaching staff of zilla parishad and mandal parishad schools in Andhra Pradesh into local cadres would cause disquiet among the teaching and non-teaching staff; and (ii) whether it was legally tenable and procedurally appropriate to issue the proposed orders when the principle behind the proposed orders had been challenged in the S.L.Ps filed by the A.P. United Teachers Federation before the Supreme Court, notwithstanding the fact that the Union of India was not a respondent in the S.L.Ps. While furnishing information to the Central Government, in its letter dated 18.03.2005, the Government of A.P. informed them that if the President of India permitted teachers working in Panchayat Raj institutions to be organized into local cadres, and they were integrated with government teachers, the S.L.Ps. pending before the Supreme Court would become infructuous and, therefore, there was no legal objection to issuing the proposed orders. Concurrence of the Government of India was sought to enable the State Government to organize the teaching and non-teaching staff of zilla parishad and mandal parishad schools into local cadres. However, Presidential approval has not been accorded till date. The legislative route was then taken and Ordinance 12 of 2005 was promulgated on 13.7.2005 and under Section 12(1) thereunder the Rules notified in G.O.Ms. No. 95 and 96 dated 25.7.2005 were made. Ordinance 12 of 2005 was challenged before the A.P.A.T in O.A. 3109 of 2005 and batch and, on Act 27 of 2005 being made, repealing Ordinance 12 of 2005, necessary amendments were carried thereto and several other O.As. were filed to include a challenge to the vires of the Act. While several contentions were raised challenging the validity of Act 27 of 2005, and the Rules notified in G.O.Ms.Nos.95 and 96 dated 12.7.2005, the Tribunal, by order dated 14.8.2006, allowed O.A. No. 3109 of 2005 and batch and quashed Section 1(3) of Act 27 of 2005 as ultravires the Presidential Order. The Tribunal further held that Act 27 of 2005 could not be brought into force without approval of the President as stipulated under the proviso to Para 3(1) of the Presidential Order and, since the Act could not have been brought into force, the Rules issued under G.O.Ms.No.95 and 96 dated 25.7.2005 were also unenforceable. The order of the Tribunal, in O.A.Nos.3903 of 2005 and batch dated 14.8.2006, is subjected to challenge before us by the Government of A.P. in W.P.17548 of 2006, the State Teachers Union in W.P.17628 of 2006, and others in W.P.Nos.16771, 17051, 17076, 18666, 19459, 21326 and 23362 of 2006. Since the order of the Tribunal, to the extent it negatived the challenge to the vires of Act 27 of 2005, and the Rules in G.O.Ms. No. 95 and 96 dated 25.07.2005, is also under challenge in some of these writ petitions, we are called upon to examine the vires of the Act and the Rules on various grounds and not just on the ground which found favour with the Tribunal. While Sri E. Manohar, Sri S. Ramachandra Rao, learned Senior Counsel, Sri M. Surendra Rao and Sri J.R. Manohar Rao, learned Counsel have made elaborate submissions challenging the validity of Act 27 of 2005, and the Rules notified in G.O.Ms. No. 95 and 96 dated 25.07.2005, the learned Advocate General and Sri D. Prakash Reddy, learned Senior Counsel, have advanced elaborate arguments to uphold the validity of the Act and the Rules. Detailed written submissions have also been placed before us by the learned Advocate General, Sri S. Ramachandra Rao, learned Senior Counsel and Sri M. Surendra Rao. We are satisfied that Act 27 of 2005 and the Rules notified in G.O.Ms.No.95 and 96 dated 25.7.2005 are ultra vires the Presidential Order, and Article 16(2) of the Constitution of India, and are required to be struck down. It is, therefore, unnecessary for us to refer to the other submissions made challenging the validity of Act 27 of 2005 and the Rules. Before referring to the provisions of the Act 27 of 2005, and the Rules notified in G.O.Ms. No. 95 and 96 dated 25.07. 2005, it is necessary to make, in brief, prefatory observations on the scope and purport of Article 371-D and the Presidential Order made thereunder. ARTICLE 371-D – CIRCUMSTANCES WHICH NECESSITATED ITS INTRODUCTION: State action be it by legislation, plenary or subordinate, or by an executive order, which denies citizens equal opportunity and access to public employment on the ground only of place of birth or residence, would be invalid qua the provisions of Article 16(2) of the Constitution of India. Article 16(3) of the Constitution, which makes an exception to the limitations under Article 16(2), is confined to enabling Parliament to prescribe the qualification of residence in the State as a whole, and not to any part thereof. No legislation is permissible even by Parliament making the requirement of ‘residence’ in a part of the State for employment or appointment to a public office in that State. (A.V.S. Narasimha Rao Vs. State of A.P.[2], Ch. Raji Reddy Vs. A.P.S.R.T.C. rep. by its Regional Manager, Bhagyanagar Region[3]). It is with a view to enable prescription of “residence” in a part of the State for employment or appointment to posts, and in matters of admissions in Universities or other educational institutions, that the Constitution, under Article 371-D, has made special provisions with respect to the State of Andhra Pradesh. It is necessary, in this context, to refer in brief to the events which led to the introduction of Article 371- D by the 32nd amendment to the Constitution. The former State of Hyderabad comprised of three linguistic areas: Telengana, Marathwada and Karnatak. In 1919, the Nizam issued a Firman promulgating the Mulki Rules. The Nizam confirmed these Rules by another Firman issued in 1949. Those Rules provided, inter alia, 15 years residence in the State as an essential qualification for public employment. In 1955 the Rajpramukh, in exercise of his powers under the proviso to Article 309 of the Constitution, framed the Hyderabad General Recruitment Rules, 1955 in supersession of all previous rules on the subject. These rules prescribed a domicile certificate for appointment to a 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, on the States Reorganisation Act coming into force, the State of Hyderabad was trifurcated. The Telengana region became a part of the newly formed State of Andhra Pradesh, while Marathwada and Karnatak regions ultimately became parts of Maharashtra and Mysore (presently Karnataka) States. The State of Andhra Pradesh was constituted of portions of the territories drawn from the erstwhile States of Andhra and Hyderabad. Soon after formation of the State of Andhra Pradesh, Parliament enacted the Public Employment (Requirement as to Residence) Act, 1957 making special provision for requirement as to residence for public employment and brought it into force with effect from March 21, 1957. The constitutional validity of this Act was challenged by persons employed in the ministerial services of the Govt. of Andhra Pradesh in A.V.S. Narasimha Rao2and the Supreme Court held Section 3 of the Act, insofar as it related to the Telangana area, ultra vires Article 16 of the Constitution. Meanwhile, there were two widespread agitations, one in the Telangana area and the other in the Andhra region of the State between 1969 and 1972, creating political turmoil and virtually paralysing State administration. The political leaders of the State, considerably exercised over this situation, made concerted efforts to find an enduring solution to this problem. On September 21, 1973 a Six-Point Formula was evolved by the political leaders to provide for a uniform approach for promoting accelerated development of the backward areas of the State so as to secure balanced development of the State as a whole and to provide equitable opportunities to different areas of the State in matters of education and employment in public services. Point No.3, 4 and 5 thereof read as under:- (3). Subject to the requirements of the State as a whole, local candidates should be given preference to specified extent in the matter of direct recruitment to (i) non- gazeted posts (other than in the Secretariat. Offices of Heads of Department, other State level officers and institutions and the Hyderabad City Police) (ii) corresponding posts under the local bodies and (iii) the posts of Tahsildars, Junior Engineers and Civil Assistant Surgeons. In order to improve their promotion prospects, service cadres should be organized to the extent possible on appropriate local basis upto specified gazetted level, first or second, as may be administratively convenient. (4). A high power administrative tribunal should be constituted to deal with the grievances of services regarding appointments, seniority, promotion and other allied matters. The decisions of the Tribunal should ordinarily be binding on the State Government. The constitution of such a tribunal would justify limits on recourse to judiciary in such matters. (5). In order that implementation of measures based on the above principles does not give rise to litigation and consequent uncertainity, the Constitution should be suitably amended to the extent necessary conferring on the President enabling powers in this behalf. Implementation of this Six-Point Formula envisaged, inter alia, amendment of the Constitution conferring power on the President of India in order to secure smooth implementation of the measures based upon the Six-Point Formula without giving rise to litigation and consequent uncertainty. It was in pursuance of this requirement of giving effect to the six point formula that Article 371-D was introduced in the Constitution by the Constitution (Thirty-second Amendment) Act, 1973 which came into force with effect from July 1, 1974. The Statement of Objects and Reasons for the Constitution (32nd Amendment) Act, 1972, reads thus:- “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 of A.V. S.N. Rao v. Andhra Pradesh, (1969) 1 SCC 839: (1970) 1 SCR 115], the Supreme Court held the relevant provision of the Act to be unconstitutional insofar 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 September 21, 1973, they suggested certain measures (generally known as the Six-Point Formula) indicating a uniform approach for promoting accelerated development of the backward areas of State so as to secure the balanced development of State as a whole and for providing equitable opportunities to different areas of 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 insofar 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: ITS SCOPE: The primary purpose of introducing Article 371-D was twofold: (i) To promote accelerated development of the backward areas of the State of Andhra Pradesh so as to secure 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 prospects in public service. To achieve this primary object, clause (1) of Article 371-D 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 education. Clause (2) is complementary to clause (1) and particularises matters for which an order, made under clause (1), may provide. Sub-clause (c)(i) thereof 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. (Chief Justice of A.P. Vs. L.V.A. Dixitulu[4]; P. Sambamurthy Vs. State of A.P.[5]). Article 371-D is a special provision which makes a departure from the general scheme of the Constitution. (Govt. of A.P. Vs. A. Suryanarayana Rao[6]). 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 that 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), provided such a prescription has been made under Article 371-D or the Presidential Order made thereunder. It is also necessary to note that the scheme of Article 371-D was held to be valid, intra vires the amending power of Parliament and as not to militate against the basic structure of the Constitution. (Dr. C. Surekha Vs. Union of India[7]; Fazal Gafoor Vs. Union of India[8]; B. Ramesh Vs. University of Health Sciences[9]; and Devarakonda Rajesh Babu Vs. NIMS[10]). The provisions of Article 371-D and the Presidential Order are insulated from any attack or challenge based on any other provision 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 or any other provision of the Constitution, (Dr. B. Sudhakar Vs. Union of India[11] Dr. Fazal Ghafoor Vs. The Principal, Osmania Medical College, Hyderabad[12]) , since the Presidential Order has been given overriding effect. PRESIDENTIAL ORDER: SCOPE AND EXTENT OF THE POWER OF THE STATE GOVERNMENT THEREUNDER: 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”, (hereinafter referred to as the Presidential Order), which was notified in G.S.R. 524(E) and came into force on 18.10.1975. Para 2(d) of the Presidential Order defines a local authority as not include any local authority which is not subject to the control of the State Government. Para 2(e) defines “local cadre” to mean any local cadre of posts under the State Government organized in pursuance of paragraph 3, or constituted otherwise for any part of the State. Under Para 2(2), the General Clauses Act, 1897 applies for the interpretation of the Presidential order as it applies for the interpretation of a Central Act. Para 3 relates to organization of local cadres and, under sub-para (1) thereof, the State Government was hitherto required, within a period of twelve 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 hereinafter provided”. The period of twelve months prescribed in Para 3(1) was enhanced to eighteen months vide G.O.Ms. No. 794 dated 12.11.1976 and twenty seven months vide G.O.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 G.O.Ms. No. 34 dated 24.01.1981, 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. While Para 3(1) ordained the State Government to organize classes of posts in the civil services of the State, and classes of civil posts under the State, into different local cadres for different parts of the State, the “extent” to which, and the “manner” in which, such classes of posts were required to be so organized was, specifically prescribed, to be as provided thereafter in the Presidential Order. Thus, not all classes of posts in the civil services of the State, and not all classes of civil posts under the State, were required to be organized into local cadres, and it was only to the extent provided for in the Presidential Order itself was the State Government required to so organize them into local cadres. Even under the proviso to Para 3(1), it is only to the extent the President considers it expedient that he may make an order requiring the State Government to organize any classes of posts in the civil services of the State, and classes of civil posts under the State, to be organized into different local cadres for different parts of the State. 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 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 and it is only from amongst persons allotted thereto was promotions to be effected and their seniority determined. In view of 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. It is for this reason that, both in S. Prakasha Rao Vs. Commissioner of Commercial Taxes[13] and in M. Kesavulu1, the Supreme Court and the Division Bench of this Court held that a local cadre, once organized, cannot be meddled with. On an analysis of the provisions of the Presidential Order, it is clear that, having regard to historical compulsions which led to the introduction of Art. 371-D, 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 led to the making 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 any other provision 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[14]). CADRES UNDER A LOCAL AUTHORITY CANNOT BE ORGANISED INTO LOCAL CADRES: Panchayats, Mandal Parishads and Zilla Parishads are local authorities both under Part IX of the Constitution and under the provisions of the A.P. Panchayat Raj Act, 1994. While the local cadres, organized in the department of school education, in G.O.Ms.No.529 dated 14.5.1976, included the posts of teachers in government schools, it did not extend to the posts of teachers under local authorities. Posts of teachers under local authorities were, hitherto, not organized into local cadres. The learned Advocate-General would emphasize, placing reliance on Mathurdas Kedia Vs. S.D. Munshaw[15] and State of Gujarat Vs. Ramanlal Keshavlal Soni[16], that posts under local authorities are also civil posts as the posts have been provisionalised, there exists a master and servant relationship between the State Government and such employees, and their salaries are paid from out of the consolidated fund