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TMI Blog1989 (5) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... les 1963 (hereinafter referred to as the Rules) is violative of the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 (hereinafter referred to as the Presidential Order) issued on 16.10.1975 by the President of India under clauses 1 and 2 of Article 371-D of the Constitution. 3. The validity of the amended Rule was questioned in the context of certain Assistant Section Officers in the Finance Department of the Government of Andhra Pradesh (hereinafter referred to as the Secretariat Officers) borne on zone VII being appointed to the post of Sub-Treasury Officers borne on the Subordinate Offices under the Directorate of Treasuries and Accounts (hereinafter referred to the Local Cadre) borne on zones I to IV, For a proper appreciation of the matter, it is necessary that Rule 3 before and after amendment and the Presidential Order are set out, 4. Under Rule 3 of the Rules, the posts of Head Accountants and Sub Treasury Officers could be filled up by any of the following methods: (i) By direct recruitment ; (ii) By promotion from category 3, 4 or 5 of Branch II or from category 3 of Branch I, III, IV, VI or category 2 of Bra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: (d) the transfer of a person from one local cadre to another local as reciprocal condition subject to the condition that the persons so transferred shall be assigned seniority in the latter cadre with reference to the date of his transfer to that cadre. Thereafter, the Government of Andhra Pradesh by G.O.P. No. 728 General Administration S.P W.A. Department dated 1.11.1975 issued various instructions in relation to the aforesaid Presidential Order including para 5 regarding inter-cadre transfers. 6. Seven persons belonging to category 5 of Branch II of the A.P. Treasury and Accounts Subordinate Service presented a representation petition No. 706 of 78 before the A.P. Administrative Tribunal for declaring Rule 3 of the Rules ultra vires, in so far as it made provision for promotion of Clerks of the Directorate of Treasuries and Accounts and Assistants of the Finance Department of the Secretariat to the posts of Head Accountants and Sub Treasury Officers, in violation of para 5(1) of the Presidential Order. It was urged by them that with the promulgation of the Presidential Order, the posts of Head Accountants and Sub Treasury Officers had become zonal posts and as such the zone w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is kind is protected under the Presidential Order. The full bench of the Tribunal considered the rival contentions of the parties and came to the view that para 5(1) of the Presidential Order made it clear that for the purpose of promotion, zonal cadre has to be treated as a separate unit and consequently the posts of Head Accountants/Sub Treasury Officers, which have been declared as zonal posts could be filled up by promotion only on zonal basis and consequently Rule 3 of the Rules which specified various categories of posts without reference to zone as feeder posts for the purpose of promotion to the posts in question are inconsistent with para 5(1) of the Presidential Order. The full Bench therefore held that after the promulgation of Presidential Order the provisions of Rule 3 referred to above would have to be reviewed so as to make them consistent with the provision of the Presidential Order. The Full Bench also considered the scope and effect of G.O. No. 728 dated 1.11.75 and held as follows: In our opinion, once this point is conceded, the contents of paragraph 10 of G.O. (P) No, 728 dated 1.11.1975 cited by the respondents in this respect would be properly understood. Wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Wing) Department of the Secretariat. 8. Challenging the validity of the amended rule two representation petitions viz. R.P. No. 1595 of 83 and R.P. No. 788 of 84 came to be filed before the A.P. Administrative Tribunal. Once again, a plea was raised that amended Rule 3 was also violative of the Presidential Order. The State contended that the amended Rule has been issued by the Governor in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution and hence the validity of the Rule cannot be questioned by the petitioners. It was secondly contended that the earlier G.O. was not violative of the Presidential Order or the provisions of Article 371-D, but even so as it was considered by the Tribunal to be inoperative because the special provisions did not explicitly state that they had been made in exercise of the authority vested in the State Government under para 5(2) of the Presidential Order, the Government had set right the lacuna pointed out by the Tribunal by framing the amended rule specifically in exercise of the powers conferred on Government under para 5(2) of the Presidential Order. 9. The Tribunal held that what was challenged by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph in respect of any non-gazetted category of posts in any department, to make a declaration to that effect, and it is further provided that on such declaration being made, the provisions of the para shall not apply to such category of posts. It is, however, common ground that the posts of Head Accountants and Sub-Treasury Officers have been constituted into zones I to IV and the U.D. Assistants and Assistant Section Officers in the Finance Department of the Secretariat have been organised for the city of Hyderabad into a separate category falling under Zone VII. The question for consideration is whether the U.D. Clerks of the Directorate and Assistant Section Officers in the Secretariat falling under Zone VII can be transferred by promotion to the local cadre posts in zones I to IV. The Tribunal has held that such transfers cannot be effected for the following reasons: - 1. The reasons which weighed with the Full Bench for Striking down the unamended Rule 3 will hold good for striking down of the amended Rule 3 also. 2. The amendment to the Rule cannot be deemed to have been regularly effected by the Government because the Rule does not set out under which relevant clause viz. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealised the operative force of para 5(2) to some extent but it has failed to give full effect to its realisation of the scope of Section 5(2). In para 12 of its judgment in RP No. 1595 of 1983 the Tribunal has stated that since the amended rule refers to para (5) (2) of the Presidential Order it will no longer be open to the petitioners to attack the amendment as was don; in respect of the earlier amendment in the previous RP. The Tribunal has thus noticed that the amended Rule has been brought about by the Government in exercise of its powers under para 5(2) but it has failed to draw the logical inference following therefrom. 14. As regards the view taken by the Tribunal that the reasons which weighed with the Full Bench for holding that the unamended Rule ceased to have operative force after the Presidential Order was made would have relevance even with reference to the amended Rule, the Tribunal cannot be said to have acted correctly. The Full Bench was concerned with the unamended Rule 3 which was framed long before the Presidential Order was passed. In order to make the provisions of the old Rule to have currency even after the Presidential Order was passed, the Government iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not for judicial bodies to sit in judgment over the wisdom of the Executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the Executive. As already stated, the question of filling up of posts by persons belonging to other local categories or zones is a matter of administrative necessity and exigency. When the Rules provide for such transfers being effected and when the transfers are not assailed on the ground of arbitrariness or discrimination, the policy of transfer adopted by the Government cannot be struck down by Tribunals or Court of Law. 16. In the light of our discussion, we find that the grievance expressed by the State over the judgment of the Tribunal is well-founded. In so far as Civil Appeal No. 3491 of 87 is concerned, though there was no direct challenge therein to the validity of the amended Rule 3, the Tribunal has allowed the Representation Petition filed by the petitioners because of the view taken by it in R.P. No. 1595 of 1983, Hence the judgment of the Tribunal in that case also has to be set aside. 17. In the result, we set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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