P.V. Radha Krishna Vs State of A.P. .

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5141 OF 2002

P.V. Radha Krishna and others … Appellants

Versus

State of A.P. and others … Respondents

WITH CIVIL APPEAL NO.5142 OF 2002

M. Bhaskar Reddy and others … Appellants

Versus

State of A.P. and others … Respondents

WITH CIVIL APPEAL NO.5144 OF 2002

G. Jaya Prasad and others … Appellants Versus

State of A.P. and others … Respondents

WITH CIVIL APPEAL NO.2965 OF 2003

B. Venkat Reddy … Appellant

Versus State of A.P. and others … Respondents

JUDGMENT

G.S. Singhvi, J.

1. The State of Andhra Pradesh comprises of three regions known as

Andhra area, Telangana area and Raylaseema area. At the time of

formation of the State in 1956, certain safeguards were envisaged for

Telangana area in the matters of development, employment opportunities

and educational facilities for the residents of that area. The legislature

enacted the Public Employment (Requirement as to Residence) Act, 1957

for providing employment opportunities for the residents of Telangana

area but the relevant provisions of that Act were declared unconstitutional

by this Court. In 1969, an agitation was launched by some political parties

demanding separate statehood for Telangana area on the ground that

people of that area were not getting their due in the matters of education,

government employment and economic development. In the backdrop of

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the agitation, a six-point formula was evolved which, among other things,

envisaged equitable employment opportunities and career prospects for

the people of different areas of the State by ensuring preferential

treatment to the local candidates. Subsequently, clarification dated

22.10.1973 was issued in which it was visualized that the State as a whole

may consist of five or six divisions and the twin cities of Hyderabad and

Secunderabad including the cantonment will be constituted into a separate

division. This is evident from paragraph 7 of the clarification, which reads

as under:

“7. In regard to the service the basic approach of the formula is that the people of different areas should have equitable employment and career prospects. The concepts of local candidates and local areas are interrelated because local candidates will be identified with reference to a local area. In specifying any local areas it should not be necessary to go below the level of district. For recruitment of Class IV posts and posts of LDC and equivalent in district office, the district will then be the local area. For other categories of posts it would be desirable to group contiguous districts into divisions. We, however, visualize that the State as a whole may consist of five or six divisions, the twin cities including the cantonment being constituted into a separate division.”

(emphasis added)

2. For giving effect to the six-point formula, Articles 371D and 371E

were inserted in the Constitution by the Constitution (Thirty-second

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Amendment) Act, 1973. Clauses (1) and (10) of Article 371D read as

under:

(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.

(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.

3. In exercise of power under clause (1) of Article 371D, the President

made the Andhra Pradesh Employment (Organization of Local Cadres and

Regulation of Direct Recruitment) Order, 1975 (hereinafter referred to as

‘the Presidential Order’). The relevant provisions of the Presidential Order,

as amended from time to time, read as under:-

“2. INTERPRETATION: In this Order, unless the context

otherwise requires.

(a) `City of Hyderabad’ means the part of the State comprising the territories specified in the First Schedule;

(b) xxxx xxxx xxxx

(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

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Surgeons, the local area specified in sub-paragraph (5) of paragraph (6) of this Order;

(d) to (g) xxxx xxxx xxxx

(h) `Schedule’ means a Schedule appended to this Order;

(i) `Special Office or Establishment’ means as Office or Establishment notified as such by the Central Government;

(j) `Specified gazetted category’ means any gazetted category specified in the Third Schedule and includes any other gazetted category notified as such by Central Government;

(l) `State-level office or institution’ means as office or institution serving, or the jurisdiction of which extends to the State as a whole and notified as such by the Central Government;

(m) `Zone’ means a zone specified in the Second Schedule comprising the territories mentioned therein;

3. Organization of local Cadres:- (1) xxx xxx xxx

(2) The posts belonging to the category of lower division clerk and each of the other categories equivalent to or lower than that of a lower division clerk in each department in each district shall be organized into separate cadre.

Explanation:- For the purposes of this sub-paragraph, sub- paragraph (1) of paragraph 6 and sub-paragraph (1) of paragraph 8 a category shall be deemed to be equivalent to or lower than that of a lower division clerk if the minimum of the scale of pay of a post belonging to that category or where the post carries a fixed pay such fixed pay is equal to or lower than the minimum of the scale of pay of a lower division clerk.

(3) The posts belonging to each non-gazetted category, other than those referred to in sub-paragraph (2), in each

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department in each zone shall be organized into a separate cadre.

(4) The posts belonging to each specified gazetted category in each department in each zone shall be organized into a separate cadre.

(5) Notwithstanding anything contained in sub-paragraphs (3) and (4), the State Government may where it considers it expedient so to do and with the approval of the Central Government, organize the posts belonging to any of the categories referred to therein, in any department, or any establishment thereof, in two or more contiguous zones into a single cadre.

(6) Notwithstanding anything contained in sub-paragraphs (2), (3), (4) and (5), the Central Government may notify the departments in which and the categories of posts for which a separate cadre has to be organized for the City of Hyderabad and on such notification, the posts belonging to each such category in each such department in the said City (other than those concerned with the administration of areas falling outside the said City) shall be organized into a separate cadre and the posts so organized shall be excluded from the other cadres, in pursuance of this paragraph or constituted otherwise and comprising of posts belonging to that category in that department.

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

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(a) the transfer of a person from any local cadre to any Office or Establishment to which this Order does not apply, or Vice Versa.

(b) The transfer of a person from 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 for where such transfer is otherwise considered necessary in the Public interest.

(d) The transfer of a person from one local cadre to another local cadre on a reciprocal basis 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.

(Vide G.O.Ms. No. 34, G.A. (SPF.A) Dept, dt. 24.01.1981)

6. Local Areas :- (1) Each district shall be regarded as a local area.

(i) for direct recruitment to posts in any local cadre under the State Government comprising all or any of the posts in any department in that district belonging to the category of a lower division clerk or to any other category equivalent to or lower than that of a lower division clerk.

(ii) For direct recruitment to posts in any cadre under any local authority within that district, carrying a scale of pay, the minimum of which does not exceed the minimum of the scale of pay of a lower division clerk or a fixed pay not exceeding that amount.

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(2) Each Zone shall be regarded as a local area.

(i) for direct recruitment to posts in any local cadre under the State Government comprising all or any of the posts in any department in that zone belonging to any non-gazetted category other than those referred to in sub-paragraph (1)

(ii) for direct recruitment to posts in any local cadre comprising all or any of the post in any department in that zone belonging to the categories of Tahsildars, Asstt. Executive Engineers, Assistant Agricultural Officers, Inspectors of Police and Motor Vehicles Inspectors (Vide G.O.Ms. No. 498, dated 16.7.1977 G.O.Ms. No. 34, dt. 24.01.1981 and G.O.Ms. No. 635, (SPF.A) Dept. dated 30.11.1993).

(iii) for direct recruitment to posts in any cadre under any local authority within that zone, carrying a scale of pay, the minimum of which exceeds the clerk but does not exceed Rs.480/- per mensem or a fixed pay which exceeds the minimum of the scale of pay of a lower division clerk but does not exceed Rs.480/- per mensem or any amount corresponding to it as may be specified in this regard in the successive revisions of pay scales granted by the State Government from time to time. (G.O.Ms. No. 635, G.A. (SFF.A) Dept. dated 30.11.1993).

Provided that where a single cadre has been organized for two or more zones under sub- paragraph (5) of paragraph 3 of posts belonging to any of the categories referred to in clause (i) or clause (ii) each of such zones shall be

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regarded as separate local area in respect of such cadre.

(3) Notwithstanding anything contained in sub-paragraphs (1) and (2)

(i) the City of Hyderabad shall be regarded as

a local area for direct recruitment to posts in any local cadre under the State Government comprising all or any of the Posts in the said City in the departments and belonging to the categories notified under Sub-paragraph (6) of paragraph 3 and the said City shall be excluded from the local area relatable to any other local cadre comprising posts in the departments and belonging to the categories so notified, and

(ii) the City of Hyderabad shall be regarded as a local area for direct recruitment to posts in any cadre under a local authority within the said City comprising posts carrying a scale of pay the minimum of which does not exceed Rs.480/- per mensum or any amount corresponding to it as may be specified in this regard in the successive revisions of pay scales granted by the State Government from time to time or a fixed pay not exceeding that amount, and the said City shall be excluded from the local area relatable to any cadre under any local authority not within the said City. (G.O.Ms. No. 635, G.A. (SPF.A) Dept. dated 30.11.1993).

10. Power to Authorise 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

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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 of 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 provision 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. 14. Saving:- Nothing in this Order shall apply to:-

(a)any post in the Secretariat of the State Government, (b)any post in an office of the Head of a Deptt., (c) any post in a Special Office or Establishment. (d) any post in a State-level office or Institution. (e) any post other than a post belonging to any of the non-

gazetted categories in the ministerial and technical services in a Major Development Project; (G.O.Ms. No. 455, G.A. (SPF.A) Dept., dated 3.10.1985 and

(f) any post Police Officer as defined in clause (b) of Section 3 of the Hyderabad City Police Act, 1348 F.

THE FIRST SCHEDULE [See paragraph 2(1)(a) City of Hyderabad]

(a) Hyderabad Municipal Corporation area: (i)

(ii)

Hyderabad Division

Secunderabad

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Division (b) Secunderabad

Cantonment area (c) Osmania University Campus (d) Zamistanpur Village (e) Fatehnagar Panchayat area (f) Bowenpalle Panchayat area (g) Machabolaram Panchayat area (h) Lalaguda Village Village (i) Malkajgiri Panchayat area (j) Uppal Khalsa Panchayat area (k) Alwal Panchayat area (l) Balanagar Panchayat area (m) Musapet Panchayat area (n) Kukatpalli Panchayat area

THE SECOND SCHEDULE [See paragraphs 2(1)(m) and 8(4)]

ZONES RATIO

Zone I Srikakulam, Vizianagaram (1st day of June, 1979) Visakhapatnam Districts.

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Zone II East Godavari, West Godavari and Krishna Districts.

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Zone III Guntur, Prakasam and Nellore Districts.

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Zone IV Chittoor, Cuddapah, Ananthapur and Kurnool Districts.

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Zone V Adilabad, Karimnagar, Warangal and Khammam Districts.

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Zone VI Hyderabad, Rangareddy 22

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(15th August, 1978), Nizamabad, Mahboobnagar, Medak and Nalgonda Districts.

4. In pursuance of paragraph 3(6) of the Presidential Order, the

Government of India issued notification, GSR No.528E dated 20.10.1975

and notified the departments in which and categories of posts for which

separate cadres were required to be organized for the city of Hyderabad.

These were the Department of Public Health and Municipal Engineering,

Indian Medicines and Homeopathy, Fire Services, Jail, Judiciary,

Commercial Tax, Education, Employment and Training Development

(Training Wing), National Cadet Corps, Technical Education, Weights and

Measures, Labour, Treasuries and Accounts. The post of Police Officer as

defined in Section 3(b) of the Hyderabad City Police Act 1348 Fasli (for

short ‘the Hyderabad Act’) was not included in that notification because

the same had been excluded from the purview of the Presidential Order by

virtue of paragraph 14(f) thereof. Thereafter, the Government of India

issued instructions vide order dated 1.11.1975 for organization of the local

cadres and allotment of persons to such cadres. Paragraph 8 of that

order by which certain departments and posts were excluded from its

purview reads thus:-

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8. Departments and posts excluded from the purview of the Order – It should be carefully noted that certain posts are altogether excluded from the application of the provisions of the Presidential Order. By virtue of paragraph 14 of the Order, posts in the Secretariat, Offices of the Heads of Departments, State level Offices/Institutions, Major Development Projects and Special Offices or establishments and posts of Police Officers as defined in clause (b) of Section 3 of the Hyderabad City Police Act, (1348 F) are excluded. The lists of State Level Offices/Institutions, Major Development Projects and Special Offices/establishments have been notified in G.O.I. notification G.S.R. Nos.527(E), 525 (E) and 526 (E) respectively, dated 18th October, 1975. As already indicated, non-gazetted categories of posts exempted by the notification G.S.R. No.529(E), dated 18th October, 1975 issued under paragraph 3(8) of the order are also excluded from the local cadres. Therefore, departments which consist exclusively of posts of the nature or belongs to categories referred to above automatically get excluded from the scheme of localization. The departments lists in the Annexure to this order will be covered by the scheme.

(emphasis supplied)

5. On the same day i.e., 1.11.1975, the Government of Andhra

Pradesh issued G.O. Nos.729 and 730. In G.O. No.729, it was emphasized

that the main purpose of the Presidential Order was to ensure that major

share of vacancies arising in certain categories of posts should be reserved

for being filled from among the local candidates. However, in paragraphs

5 and 21 it was made clear that reservation in the matter of direct

recruitment in favour of local candidates do not apply to the posts

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specified in paragraph 14(f) of the Presidential Order. For the sake of

convenience, these paragraphs are extracted below:

“5. The provisions, of order regarding reservations in the matter of direct recruitment in favour of local candidates do not, however, apply to the posts specified in para 14 of the Order, viz., posts in the Secretariat in the offices of the Head of Departments, in the Special Offices/Establishments notified by the Central Government in G.S.R. No.526(E), dated 18.10.1975, in the State Level Offices/Institutions notified by the Central Government in G.S.R. No.527(E), dated 18.10.1975, in the Major Development Projects notified by the Central Government in G.S.R. No.525(E) dated 18.10.1975 and posts of police officers as defined in clause (b) of section 3 of the Hyderabad City Police Act, 1348 Fasli.

21. Recruitment of posts in Secretariat. Offices of Heads of Departments, etc – As indicated earlier the scheme of reservation in favour of local candidates will not apply to posts in the secretariat, office of Heads of Department, and State- Level offices/institutions notified in G.S.R. No.527(E), dated 18.10.1975. Direct recruitment to fill posts in these offices will be on a state wide basis. The scheme of reservation in favour of local candidates will not also apply to the posts in special offices/establishments notified in G.S.R. No.526(E), dated 18.10.1975. It is the Governments intention that such offices and establishments should as far as possible cease to be separate units of appointment and that posts in such offices and establishment should not ordinarily be filled by direct recruitment, but by drawing persons on tenure from different local cadres on an equitable basis. The scheme of reservation does not apply to posts in Major Development Projects notified in G.S.R. No.525(E), dated 18.10.1975. Here also it is the intention of the State Government that the posts in such projects should be largely filled by drawing persons on transfer or tenure equitably from different local cadres. Where however, any direct recruitment becomes essential it will be done on a state wide basis.”

(emphasis supplied)

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6. In paragraph 2 of G.O. Ms. No.730, the aforesaid provision was

reiterated in the following words:

“2. The Presidential Order requires that certain categories of posts shall be organized into appropriate local cadres. These include all non-Gazetted categories of [posts other than those exempted by virtue of the notification issued under para-3(8) of the Order – vide Government of India, Ministry of Home Affairs, GSR 529(E), dated 18.10.1975] and the posts belonging to the specified gazetted categories: however, the posts for which the unit of appointment is confined to the Secretariat and the Offices of the Heads of Departments, State level Offices/Institutions, Special Offices/Establishments and Major Development Projects and posts of Police Officers as defined in the Hyderabad City Police Act, 1348 F, are excluded…..”

7. After about seven months, the State Government issued G.O. Ms.

No.795 dated 30.6.1976 whereby scheme for organization of local cadres

for the non-gazetted categories of posts (both Executive and Ministerial)

and other posts equivalent to or lower than LDCs was formulated and

circulated. The said scheme was finalized in consultation with the

Allotment Committee constituted under G.O. Ms. No.74 dated 15.11.1995.

As far as the police department is concerned, the scheme of organization

of local cadres excluded some of the offices and posts including the post of

Police Officer as defined in clause (b) of Section 3 of the Hyderabad Act.

While creating new Police Ranges vide G.O. Ms. No.1697 dated

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10.12.1975, which were shown in Annexure – 1 appended to G.O. Ms.

No.795, Hyderabad, Secunderabad and other areas mentioned in First

Schedule to the Presidential Order were separately identified as City

Range. All this is evident from paragraphs 3, 4, 16 and Annexure – 1

appended to G.O. Ms. No.795, the relevant portions of which are

reproduced below:

“(3) The following offices of the Police Department are outside the purview of the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 for the reasons given against them:-

Name of Office Reasons for exemption

1. Office of the Inspector General of Police

Being office of the Head of the Department.

2. Railway Police Being Special Office or Establishment vide Notification No. GSR 526(E) dated 18.10.1975.

3. Police Communications Organization

4. Police Training College, Anentpur

5. Office of the Deputy Inspector General of Police, Railways, Crime and Training, Hyderabad

Being the State level offices of Institution, vide Notification No. GSR (E) dated 18.10.75

6. Office of the Deputy

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Inspector General of Police, Railways, Crime and Training, Hyderabad.

7. Police Transport Organization

8. Office of the Director of Police Communications

9. Office of the Director of Forensic Science Laboratory, Hyderabad

10. All categories of posts in the Special Police Battalions including Special Armed Police, Amberpet other than Ministerial categories

Being exempted categories vide Notification No. GSR 529(E) dated 18.10.1975

11. Any post of Police Officer as defined in clause (b) of Section 3 of the Hyderabad City Police Act, 1348-F.

Vide para 14(f) of the Presidential Order

(4) Thus, the Presidential Order dated 18.10.1975 will apply to the remaining offices of the Police Department as given below -

1. Officers of the six Police Ranges (viz. Northern, Eastern, Central Southern, Warangal and Hyderabad)

2. Ministerial staff of the office of the Commissioner of Police, Hyderabad

3. Ministerial Staff of the Special Police Battalions including Special Armed Police

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4. Ministerial staff of the District Police Office

5. District Police i.e. Regular Police Force

(16). As no separate cadre for the City of Hyderabad needs to be organized for the Police Department, the Ministerial staff of the office of the Commissioner of Police alone will be included in zone VI. However, it will be treated as a separate cadre in that zone, the other cadre being the staff under the jurisdiction of Deputy Inspector General of Police, Hyderabad Range.

ANNEXURE – 1

New Police Ranges as per Police Ranges prior to the the order issued in G.O. Ms issue of orders issued in No.1697, Home dated 10.12.1975 G.O. Ms No.1697, Home

dated 10.12.1975 ZONE–1 Northern Range

Head-quarters at Vishakahpatnam

1. Srikakulam

2. Vishakhapatnam

ZONE–II Eastern Range Headquarters at

Eluru

1. East Godavari 1. Srikakulam

2. West Godavari 2. Visakhapatnam

3. Krishna 3. East Godavari

4. West Godavari

ZONE–III Central Range Headquarters at Guntur 1. Guntur 1. Krishna

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2. Nellore 2. Guntur

3. Prakasam 3. Nellore

4. Prakasam

ZONE–IV Southern Range Headquarters at Kurnool

1. Chittor 1. Chittor

2. Cuddapah 2. Cuddapah

3. Anantapur 3. Anantapur

4. Kurnool 4. Kurnool

ZONE–V Warrangal Range Headquarters at Warangal

1. Adilabad 1. Adilabad

2. Karimanagar 2. Karimanagar

3. Warangal 3. Warangal

4. Kahmmam 4. Kahmmam

5. Nalgonda

ZONE–VI Hyderabad Range Headquarters at Hyderabad

1. Hyderabad 1. Hyderabad

2. Nizamabad 2. Nizamabad

3. Mahaboobnagar 3. Mababoobnagar

4. Medak 4. Medak

5. Nalgonda

City Range

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Hyderabad and Secunderabad 1. Hyderabad and other areas as mentioned in First Schedule to the Presidential 2. Secunderabad Order ”

8. The posts of Hyderabad City Police were not shown in Annexures IV,

V, XII and XIII appended to G.O. Ms. No.795, which contained statements

showing the cadre strength of localized cadres in respect of the posts of

Constable, Head Constable, Sub-Inspector and Inspector. The relevant

portions of those Annexures are extracted below:

Annexure IV

Point No.3 – 40 (34 permanent and 6 temporary) posts of S.B., C.I.D., Hyd. and 11 (10 permanent and 1 temporary) posts of C.B.CID attached to the City Police are not shown in the statement as the City Police is not localized.

Annexure V

Point No.3 – 16 (11 permanent and 5 temporary) posts of S.B. and 13 (12 permanent and 1 temporary) posts of Crime Branch, C.I.D. are not shown in the statement as the City Police is not localized.

Annexure XII

Point No.1 – Includes posts of Int., CB & RP. distributed to all units. But the posts distributed to the City Police are not shown in the statement as City Police is not localized.

Annexure XIII

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Point No.1 – The posts of CID attached to the City are not shown in the statement as City Police is not localized.

9. At this stage, we may notice Sections 3(b), 4 and 7 of the

Hyderabad Act and Sections 2(b), (c), 3 and 4 of the Andhra Pradesh

Members of Police Force (Regulation of Transfers) Act, 1985 (hereinafter

referred to as ‘the 1985 Act’).

The Hyderabad Act

“3(b) “Police Officer” shall be deemed to include every member of the City Police Force appointed under this Act and shall also include the Commissioner of City Police, Hyderabad, Deputy or Assistant Commissioner of Police, and subject to the provisions of sub-section (2) of Section 9 and Sub-Section (2) of Section 10 shall also include every person who has been appointed as an additional or special Police Officer.”

4. ORGANIZATION OF POLICE – For the City of Hyderabad there shall be appointed a Police force and its strength and constitution shall be as may be prescribed in accordance with the orders of the Government issued in this behalf, from time to time.”

7. POWERS OF APPOINTMENT AND PROMOTION – (1) The powers to appoint and promote an Inspector, Sub-

Inspector and other subordinate of the force shall vest in the Commissioner of City Police, Hyderabad. The Government shall have the power to appoint the Deputy Commissioner and, Assistant Commissioner of Police.

(2) Powers of dismissal, discharge, demotion, suspension, fine and punishment.– The (Commissioner of City Police, Hyderabad) may, subject to such rules and regulations, as the Government may, from time to time,

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promulgate in this behalf, except Deputy Commissioner and Assistant Commissioner of Police––

(a) dismiss, discharge, demote, suspend or fine to extent of half the salary, any member of the Police force when any member of the force commits, neglects or fails to perform duties or contravenes the provisions of this Act or of the rules made thereunder or commits gross misconduct during leave;

(b) impose the punishment of attendance in a Police Station for a period not exceeding three days upon a member of the force inferior in rank to that of a Head Constable, who in his presence commits a gross wrong or behaves insolently and insubordinately.

(3) Nothing contained in sub-section (2) shall effect any criminal proceeding by which any criminal liability or charge is established for an offence against any Police Officer.”

The 1985 Act

“2(b) ‘police force’ means the police force constituted under the Hyderabad City Police Act, 1348 F., the Andhra Pradesh (Andhra Area) District Police Act, 1859 and the Andhra Pradesh (Telangana Area) District Police Act, 1329 F, or any other law relating to police force.

(c) ‘prescribed’ means prescribed by rules made under this Act.

3. Regulation of transfer of members of police force:- (1) Notwithstanding anything in any law for time being in force, a member of the police force shall be liable to serve in any part of the State of Andhra Pradesh.

(2) The Government may make rules for the regulation of transfer of members of police force from one part of the State to another part within the State of Andhra Pradesh by such authority as may be prescribed.

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4. Power to make rules:- (1) The Government may, by notification in the Andhra Pradesh Gazette, make rules to carry out the purposes of this Act.

(2) Every rule made under this Act shall, immediately after it is made, be laid before each House of the State Legislature if it is in session and if it is not in session immediately following for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before the expiration of the session in which it is so laid or the session immediately following both Houses agree in making any modification in the rule or in the annulment of the rule, the rule shall from the date on which the modification or annulment is notified in the Andhra Pradesh Gazette, have effect only in such modified form or shall stand annulled, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.”

10. Before enactment of the 1985 Act, the Governor of the State had,

in exercise of the powers conferred upon him by Sections 8 and 10 of the

Madras District Police Act, 1859, Section 6 of the Hyderabad District Police

Act 1329 Fasli and Section 7 of the Hyderabad Act read with proviso to

Article 309 of the Constitution of India made the Special Rules for Andhra

Pradesh Police Subordinate Service. These rules were published by G.O.

Ms. No.1263, G.A. (Rules) Dept., dated 26.8.1959. In exercise of the

powers conferred upon it under Section 3(2) of the 1985 Act, the State

Government framed rules for regulating transfer of the members of the

police force. Those rules were circulated by G.O.Ms. No.288 Home

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(Police-C) Department dated 6.5.1986. In 1999, the Governor framed

another set of Special Rules for A.P. Police (Civil) Subordinate Services.

The same were issued vide G.O. Ms. No.374 Home (Police. C) dated

14.12.1999.

Pre-Presidential Order Litigation

11. Shri D. Ram Reddy and Shri T. Ram Reddy, who were recruited as

Head Constable and Constable respectively in the Hyderabad City Police

filed Writ Petition No.1643/1973 questioning their transfers to Khammam

and Nalgonda districts respectively by the Commissioner of Police,

Hyderabad on the ground that being members of Hyderabad City Police

force, they could not be transferred outside the twin cities of Hyderabad

and Secunderabad. The Inspector General of Police, Andhra Pradesh and

Commissioner of Police, Hyderabad, who were impleaded as respondents

opposed the prayers of the petitioners by contending that the petitioners

are governed by the provisions of the Andhra Pradesh Police Subordinate

Rules and, as such, they are liable to be transferred and posted anywhere

in the State of Andhra Pradesh. The learned Single Judge referred to the

provisions of Article 309 of the Constitution, the Andhra Pradesh

(Telangana Area) District Police Act 1329 (Fasli), which was extended to

whole of the Telangana area except the city of Hyderabad, Section 7 of

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the Hyderabad Act and held that in view of the provisions contained in the

latter enactment, the rules framed under proviso to Article 309, insofar as

the same affected the conditions of service of the Police Officers appointed

in Hyderabad City Police are ineffective. Accordingly, transfer of the writ

petitioner outside the limits of twin city was declared illegal and quashed.

12. The respondents in the writ petition challenged the order of the

learned Single Judge in Writ Appeal No.890/1975. The Division Bench

referred to the Presidential Order and held:

“The Hyderabad City Police force comes under Article 371-D of the Constitution which is a special provision made for the state of Andhra Pradesh. Under Article 371-D with respect to the State of Andhra Pradesh, the President of India issued some rules as 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 for various parts of the State. Clause 10 of Article 371-D states that the provisions of this Article and of any order made by the President thereunder shall have effect not with standing anything in any other provision of the Constitution or in any other law for the time being in force. Therefore special provisions have been made in the case of Andhra Pradesh State in regard to public employment organisation of local cadres and regulation of direct recruitment. That order stipulating the above provisions, will take precedence over the provisions of Articles 309 and 313 of the Constitution. The Presidential Order which we have referred to above in clause (5) provides for local cadres and transfer of persons. Clause (1) of Section 5 states that for each part of the state, for which a local cadre has been organized in respect of any category of posts, shall be a

25

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. Sub-clause 2 of Section 5 states that nothing in this order shall prevent the state Government from making provision for the transfer of person from any local cadre to any office or establishment to which this order does not apply or vice-versa. Clause 14 of the order mentions special saving provisions and under Sub- Clause (f) of clause 14 any post of police officer as defined in clause (b) of section 3 of the Hyderabad City Police Act 1348 F is excluded.

In view of the provisions of clause 14(f), it is obvious that it is not open to the State Government to make rules providing transfer of persons from Hyderabad City Police Force to any other area or any other police force. On this ground alone the impugned order must be set aside apart from the ground which appealed to our brother Muktadar, J.”

(emphasis supplied)

Post-Presidential Order Litigation

13. Twenty two Sub-Inspectors of Hyderabad City Police challenged the

transfers of 89 Sub-Inspectors and Inspectors of different districts to the

City of Hyderabad by filing an application before the Andhra Pradesh

Administrative Tribunal (for short ‘the Tribunal’), which was registered as

R.P. No.1220/1977. The Tribunal relied upon the orders passed by the

learned Single Judge and the Division Bench of the High Court in Writ

Petition No.1643/1973 and Writ Appeal No.890/1975 respectively, referred

to the provisions of the Hyderabad Act and quashed the transfers of the

26

officers belonging to different districts to the Hyderabad City Police with a

direction that they be sent back to their respective districts and the

consequential vacancies be filled from the officers of the City Police.

14. Another batch of cases was filed by the members of the Hyderabad

City Police before the Tribunal questioning the validity of the 1985 Act and

transfer of the Police Officers from other zonal cadres to Hyderabad City

Police. The same were registered as O.A. Nos.22622-22635/1990, R.P.

Nos.22126-22130/1989, 4761/1988, 4878/1988, 4879/1988 and

1567/1989. The Full Bench of the Tribunal made a reference to the orders

passed by the learned Single Judge in W.P. No.1643/1973 and by the

Division Bench in Writ Appeal No.890/1975 as also order dated 18.7.1988

passed by the Tribunal in R.P. No.1220/1977 and observed that the 1985

Act was passed to overcome the orders passed by the High Court and

Tribunal. The Full Bench of the Tribunal then noted that rules for

regulating transfer of members of police force from one part of the State

to another were framed by the government in exercise of powers under

paragraph 5(2) of the Presidential Order read with Sections 3(2) and 4(1)

of the 1985 Act and also that by the time the 1985 Act and rules were

framed, government had made several provisions with reference to

27

paragraph 5(2) of the Presidential Order and recorded the following

conclusions:

a) The Act and Rules do not violate Presidential Order in so far as a transfer is from a post saved under para 14 of the Presidential Order to another post saved under para 14 of a person not included in any local cadre under the Presidential Order.

b) The impugned Act and the Rules are not effective for making transfer in respect of local cadres i.e. either inter- cadre or from or to posts in the cadre to and from posts saved under para 14 of the Presidential Order, and for which provision is to be made by the Government in various clauses of 5(2) or of persons included in any local cadre under Presidential Order.

c) It is open for the Government to make any further or other provision as contemplated by 5(2).

It is made clear that we have examined the question of transfer from the city police to another local cadre on a permanent basis. We have not examined transfers of police officers bonafide in public interest in exigencies of services for short periods without affecting their continuance and position in their local cadre or effecting their seniority in the local cadre to which they are now transferred for leveled by the Head of Department viz., DGP of Police.

Recruitment of the appellants and particulars of some other advertisements

15. The appellants were appointed as Sub-Inspectors of Police in

Hyderabad City. Their selection was preceded by an advertisement issued

by the Public Service Commission for recruitment to various posts including

Sub-Inspectors of Police. Out of 143 posts of Sub-Inspectors of Police, 93

28

were earmarked for Hyderabad City, which was described as Zone VII.

Thirteen vacancies were reserved to be filled in by transfer from police

ministerial staff. In that category also nine vacancies were shown for

Zone VII. In the same advertisement, the posts of Assistant Commercial

Tax Officers were shown for Hyderabad I (2) and Hyderabad II (4) falling

in Zone VI. The advertisement also specified the area of Hyderabad City

(Zone VII) as comprising the following:

(a) Hyderabad Municipal Corporation Area -

(i) Hyderabad Division (ii) Secunderabad Division

(b) Secunderabad Cantonment Area

(c) Usmania University Campus

(d) Zamastanpur village Panchayat Area

(e) Fatehnagar Panchayat Area

(f) Bowenpalle Panchayat Area

(g) Machabolaram Panchayat Area

(h) Lalgura village Panchayat Area

(i) Malkagiri Panchayat Area

(j) Uppalkalasa Panchayat Area

(k) Alwal Panchayat Area

(l) Alanagar Panchayat Area

(m) Moosapet Panchayat Area

(n) Kukatpalle Panchayat Area

29

16. After completion of the process of selection, the Secretary of the

Commission issued Memos dated 29.5.1985 whereby the appellants were

informed about their selection and allotment to Zone VII i.e., Hyderabad

City. For the sake of reference, memo issued to one of the appellants is

reproduced below:-

“ANDHRA PRADESH PUBLIC SERVICE COMMISSION

MEMO NO.23490/J8/85 dated 29.5.1985

Sub. Recruitment (Direct) Group II – Andhra Pradesh Services 1983-84 – Allotment of selected candidates to the Department – Intimation to the selected candidates – Reg.

Ref. His application. ****

Sri Pantala Venkata Radha Krishna is informed that on the basis of the results of the competitive examination and oral test conducted by the Commission for recruitment to posts included in Group II Andhra Pradesh Services 1983-84 he/she has been selected and allotted as Sub Inspector of Police (Civil) in Zone VII Hyderabad City.

“The selection is subject to the results of the Writ Appeal regarding weightage marks to Telugu Medium candidates pending before the Supreme Court.”

He may await communication from the Unit Officer i.e. Director General of Police, A.P., Hyderabad.

Sd/-

Sd/- Abdul Kareem Khan, IAS, Secretary

30

/f.b.o/ Asst. Secretary

To

Sri Pantala Venkata Radha Krishna _________________”

17. Thereafter, the Commissioner of Police in exercise of the power

vested in him under Rule 2(a) and Annexure-I of the Special Rules for the

Andhra Pradesh Subordinate Service issued orders for appointment of the

appellants as Sub-Inspectors of Police. For the sake of reference, the

order of appointment of one of the appellants, namely, P.V. Radha

Krishna, is reproduced below:

“GOVT. OF ANDHRA PRADESH:

Office of the Commissioner of Police.

Hyderabad-A.P.

Dated 9th Sept. 1985 D.O. No. 3817 No. L&O/E2/3723/85

O R D E R:

Sub: Police – Sub-Inspectors (Civil) – Appointment of – Orders – Regarding.

_________

In exercise of the powers vested in me under Rule 2(a) and Annexure – I of the Special Rules for the Andhra Pradesh

31

Police Subordinate Service Sri Patnala Venkata Radha Krishna s/o. Patnala Narayana Rao is appointed on probation as Sub- Inspector of Police (Civil) in the time scale of pay of Rs.575- 20-775-25-950 subject to the condition that his services are liable to be terminated at any time before the declaration of his probation under General Rule 24(a) or 25(c) of the Andhra Pradesh State and Subordinate Service Rules with one month’s notice or with one month’s pay in lieu thereof. He will be on probation from the date of joining the Police Training College for a continuous period of 2 years and 7 months on duty or a total period of 3 years on duty. He will be governed by the provisions of the Special Rules for the Andhra Pradesh Police Subordinate Service.

He will under go a course of training for a period of one year in the Police Training College, Anantapur followed by practical training for one year and 7 months including independent charge of a Police Station, for not less than one year. During the period of training he will be paid the minimum of the time scale of pay i.e., Rs.575-00 p.m. plus the allowances admissible thereon.

The training will commence from 12.9.1985 at the Police Training College, Anantpur. He should deposit a sum of Rs.300-00 (Rupees three hundred only) at the time of joining the Training College towards Mess and Uniform charges and execute a bond of security.

He is informed that if his mother tongue is not Telugu or if he has not taken Telugu as Second Language in SSC or equivalent examination or any higher examination he shall qualify himself by passing the Second Class Language test in Telugu conducted by the Andhra Pradesh Public Service Commission.”

18. In 1991, advertisement Rc.No.419/R&T Admn 1/90 dated 14.2.1991

was issued for recruitment of Civil Sub-Inspectors (Man) and Reserve Sub-

32

Inspectors (Man) in different zones which were identified with the

respective ranges. In that advertisement, 80 vacancies of Civil Sub-

Inspector (Man) and 26 vacancies of Reserve Sub-Inspector (Man) were

shown as earmarked for Hyderabad City Police Range, which was also

described as Zone VII (free zone). In 1994 also, an advertisement was

issued for recruitment of 435 Sub-Inspectors Civil/Intelligence (Man). In

that advertisement 74 vacancies were shown as earmarked for Zone VII

i.e., Hyderabad City (free zone). Similar advertisements were issued after

1975 for recruitment to various posts enumerated in paragraph 14(f) of

the Presidential Order.

Genesis of the present litigation

19. In view of order dated 20.10.1984 passed by the Tribunal in O.A.

Nos.22622-22635/1990 and connected matters, the State Government

issued G.O. Ms. No.349 Home (Police. C) Department dated 15.12.1997

whereby the private respondents who were then working as Inspectors of

Police in Hyderabad City Police (City Range), were transferred

back/repatriated to their parent cadres in other police ranges specified in

G.O. Ms. No.1697, Home dated 10.12.1975 and G.O. Ms. No.795 dated

30.6.1976. The private respondents challenged G.O. Ms. No.349 in O.A.

Nos.7579/1998, 8430/1998, 8431/1998, 8534/1998, 58/2001 and

33

2139/2001. They pleaded that their transfer to Hyderabad City Police had

been effected in accordance with the provisions of the 1985 Act and rules

framed there under and in public interest and the Government’s action to

transfer them back to the ranges in which they were initially appointed is

ex facie illegal, arbitrary and unjustified. They further pleaded that the

order passed by the Full Bench of the Tribunal cannot be invoked for

effecting their repatriation to the parent cadres because they were not

parties in O.A. Nos.22622-22635/1990 and connected matters. Another

plea taken by the private respondents was that the impugned G.O. is liable

to be declared arbitrary and discriminatory because while some of those

who were transferred to Hyderabad City Police have been repatriated,

others have been retained.

20. In the counter affidavits filed on behalf of the official respondents

before the Tribunal, it was specifically averred that the applicants in O.As.

were appointed in districts other than Hyderabad City Police and were

promoted as Inspectors in their respective parent units as per seniority in

their respective ranges and they cannot claim continuance in Hyderabad

City Police. It was then pleaded that the applicants were transferred to

Hyderabad City Police by the Director General and Inspector General of

Police, Andhra Pradesh in exercise of the powers conferred upon him by

34

G.O. No.288 dated 6.5.1986 but their seniority is being maintained in their

respective police ranges and none has been assigned seniority in

Hyderabad City Police. According to the official respondents, the 1985 Act

and the rules framed there under are not effective for making transfer in

respect of local cadres i.e., either inter cadre or from or to posts in the

cadre to and from posts in paragraph 14 of the Presidential Order for

which provision is to be made by the Government in terms of various

clauses of paragraph 5(2). The relevant portions of the counter affidavit

filed on behalf of the State Government in O.A. No.7579/1998 – Sardar

Harihar Singh and three others v. State of A.P. and others, are extracted

below:-

“It is further submitted that the applicants in the OA were transferred to Hyderabad City Police by the 3rd respondent in exercise of the powers conferred on him in G.O. Ms. No.288 dated 6.5.1986 on different dates. The seniority of the above applicants is being maintained in their respective police ranges only. None of the applicants were assigned seniority in Hyderabad City Police. All of them were promoted as Inspectors of Police in their respective parent units as per their turn in seniority.

In reply to para 6(o) it is submitted that the contention of the applicants that Hyderabad City Police is not a separate zone is incorrect and baseless. It is fact that the entire AP has been divided into six zones and Hyderabad City Police has been treated as “Free Zone”. The Hyderabad City Police being Free Zone has got separate entity as like other zones. The vacancies in respect of posts of Hyderabad City Police are notified separately and selection/appointment to the post of Sub-Inspectors of Police, Civil and Reserve Sub-Inspectors of

35

Police, CAR and Police constables of both Civil and CAR to the extent of vacancies are conducted by this unit only and appointment orders to the candidates so selected after completion of recruitment process work to the said posts such as physical efficiency test, one star test, three star test and also written examination to the candidates are conducted by this unit only independently. The same process if followed in respect of posts of other six zones separately by each zone. Thus all the six zones and Hyderabad City Police are separate units for all service matters of appointment, promotion to the next rank etc. The Hyderabad City Police is not a part and parcel of Zone Six as contended by the applicants.”

(emphasis supplied)

21. After taking note of the respective pleadings, the Tribunal dismissed

the O.As. The argument of the applicants that Hyderabad City Police is

part and parcel of Zone VI was rejected by the Tribunal in the following

words:

“There is no separate zones for Hyderabad city. It is thus a free zone. It thus follows that the Hyderabad City Police Unit is a free zone. Separate and independent recruitment is being made in respect of post of Hyderabad city police. In short, Hyderabad city police is being treated as a free zone where there is independent recruitment.”

22. The private respondents challenged the order of the Tribunal by

filing different writ petitions which were heard and disposed of by the Full

Bench of the High Court. The Full Bench observed that the provisions of

the 1985 Act will have to be construed in harmony with the provisions of

the Presidential Order which prevail over any other provisions of the

36

Constitution or any other law for the time being in force. The Full Bench

then referred to various paragraphs of the Presidential Order and

observed:

“In construing the power granted to the State Government under para 5(2) for making provision for transfers of persons, we must not loose sight of the historical compulsions which have led to the enactment of the Presidential Order, which is buttressed by the over riding effect given to the provisions of the Presidential Order not only against the exercise of the majoritarian, political and executive choices of the State, but is also made operative against any other provisions of the Constitution of India (Art.371D(10) read with para 11 of the Presidential Order).”

23. The Full Bench then delved into the grounds on which power under

paragraph 5 of the Presidential Order could be exercised and observed:

“Having regard to the provisions of para 14 of the Presidential Order, no limitations are prescribed on the power of the State Government to provide for transfer of the incumbent of a post in any department, institution or establishment enumerated in para 14 to another such department, institution or establishment.

Insofar as transfers of persons falling within the ambit of para 5(2)(a) to (c) is concerned, provisions of the Act 1985 and the rules thereunder set out in G.O.Ms. No.288 dated 6.5.1986, must be construed as enabling such transfers only when no qualified or suitable person is available in a particular local cadre or where such transfer is otherwise considered necessary in the public interest and for no other reason. Normally such transfers must necessarily be of limited duration or tenure to meet the specified exigency namely either during the period no qualified or suitable person is available or the public interest that necessitated such transfer, continues. Immediately on cessation of such circumstances –

37

as and when a qualified or suitable person is available or when the public interest concerned ceases to operate, the person so transferred in the above exigencies must need be repatriated to the local cadre to which he belongs either by allotment or direct recruitment to it. There may be very rare circumstances, and very rare they must necessarily be, where a person is required to be transferred to another local cadre on a longer term basis. Clear reasons for such long term transfer must not only exist but must be clearly recorded. In any case wherever such transfer, be it for a short term or longer term, the transfers made in the circumstances set out in para 5(2)(a) to (c) being on administrative exigencies, must enable person so transferred to carry the benefit of his seniority to the transferred local cadre. To this extent Rule 3 of the Rules made under the Act 1985 must be held to be valid.

In the case of a transfer on reciprocal basis, para 5(2)(d) itself mandates that the person transferred shall be assigned seniority in the later cadre with effect from the date of his transfer to such cadre. Rule 3 of the Rules made under the Act 1985 would have no application in such a case and the provisions of para 5(2)(d) would operate. We are of the opinion that even in respect of a transfer under para 5(2)(d) the principles/guidelines for allotment in para 4(2) should be borne in mind and reciprocal transfers should not be freely approved which would gravely disrupt the need for composition of balance cadre having regard to age and seniority or the administrative needs of the posts in the local cadre.

24. On the question whether there is a separate cadre for Hyderabad

City Police or the same falls in Zone-VI which includes District of

Hyderabad, the Full Bench observed as under:

“Nothing has been placed before this court to demonstrate that any appointment of police officers have been made only

38

under the provisions of either the Hyderabad City Police Act 1348 Fasli but they have been made also under the Andhra Pradesh (Andhra Area) District Police Act 1859 or the Andhra Pradesh (Telengana Area) District Police Act 1349 Fasli. All appointments have been made under the relevant Rules made under provision to Art. 309 of the Constitution including the Andhra Pradesh Police Service Rules; Andhra Pradesh Police Subordinate Service Rules; Andhra Pradesh Police (Armed Reserve) Service Rules; Andhra Pradesh (Communications) Subordinate Service Rules; Andhra Pradesh Police (Computer Centre) Service Rules and the Andhra Pradesh Police (Computer Centre) Subordinate Service Rules, etc.

Sec 3(b) of Hyderabad City Police Act 1348 Fasli defines a Police Officer to include every member of the City Police Force appointed under this Act as also the Commissioner of City Police, Hyderabad, the Deputy or Assistant Commissioner of Police and subject to provisions of sub-sec. (2) of Sec. 9 and sub-sec.(2) of Sec. 10 every person who has been appointed as an Additional or Special Police Officer. Sec. 7 of this Act vests in the Commissioner of City Police the power to appoint and promote Inspector of Police, Sub Inspector of Police and other subordinates of the force and empowers the Government to appoint the Deputy Commissioner and Assistant Commissioner of Police. Sections 9 and 10 provide the power to appoint Additional Police Officer and Special Police respectively. No Police Officer has been appointed under the provisions of this Act. All recruitments are notified and appointment made under the Special Rules made under the provision to Art 309 of the Constitution. Thus, though the post of a Police Officer as defined in Sec. 3(b) of the Hyderabad City Police Act 1348 Fasli is beyond the purview of the Presidential Order in view of para 14 of the said Order, there is in fact no Police Officer as defined in Sec. 3(b) of the Hyderabad City Police Act 1348 Fasli, factually in existence.

As there has been no constitution of a separate cadre for the city of Hyderabad for members of the Police Force in terms of para 3(6) of the Presidential Order, members of the police force allotted or recruited to Hyderabad must be construed as having been so allotted or recruited to either the

39

District cadre of Hyderabad or zonal cadre of Zone VI viz Hyderabad, Nizamabad, Mahabubnagar, Medak and Nalgonda Districts, as the case may be, depending upon the rank they hold, whether it is a District cadre post or a Zonal cadre post.

The post of an Inspector of Police in the Police department having been specified as item 51 of the 3rd

Schedule and being a specified gazetted category in terms of para 2(1)(j) read with 3(4) of the Presidential Order and being required therefore, to be organized into a zonal cadre of Inspector of Police including those working for the since as part of the Hyderabad city police, have to be considered as members of Zone VI which includes the District of Hyderabad. They do not fall within the provisions of para 14 of the Presidential Order. The transfers from and to the establishments and units of Hyderabad City Police therefore fall within the parameters of para 5(2)(c) to (d). A person once allotted to one zone and attached to his post must be said to be belonging to the same zone and he has no right to come to any other cadre, which is not organized one.

We may notice that no separate organization has come into being in terms of para 3(1) of the Presidential Order. Para 3(3) of the said order refers to the zonal posts. Para 3(5) apply to both gazetted and non-gazetted posts. Although a power has been conferred in Para 3(6) to create a separate cadre of posts which has to be organized for the city of Hyderabad, no such cadre has come into being. Further, in terms of notification for the purpose of organization of a separate cadre for the city of Hyderabad. Para 3(5) will have application only in relation to the said local cadres, which have been organized in respect of any category of posts. Such local cadre would be a separate unit inter alia for the purposes of recruitment, appointment, discharge, seniority, promotion and transfer. …………

In terms of the II Schedule there are only six zones. The city of Hyderabad comes within the purview of Zone VI. The city of Hyderabad, although loosely treated as a separate zone, but no such separate zone has been created. The city

40

of Hyderabad therefore comes within the purview of Zone VI only.”

25. The Full Bench then recorded 13 conclusions including the following,

which are under challenge in these appeals:

“(b) No separate cadre has been organised for the City of Hyderabad within the meaning of para 3(6) of the Presidential Order.

(c) No recruitment to the post of a police officer as defined in Sec. 3(b) of Hyderabad City Police Act 1348 Fasli has been made and there is thus factually no incumbent of the post of police officer under para 14(f) of the Presidential Order.

(d) Inspectors of Police working in the Hyderabad City Police establishments either on promotion to that post or by direct recruitment, must be considered as belonging to Zone VI in the zonal cadre.”

26. Shri L. Nageshwar Rao, learned senior counsel appearing for the

appellants referred to clause (10) of Article 371D, paragraph 11 of the

Presidential Order and order passed by the Division Bench of the High

Court in Writ Appeal No.890/1975 and argued that when the Parliament

has unequivocally recognized the primacy of the provisions contained in

the Presidential Order, exclusion clause contained in paragraph 14(f)

thereof is required to be given full effect and the Full Bench committed

serious error by indirectly bringing the post of Police Officer as defined in

Section 3(b) of the Hyderabad Act in the scheme of

41

localization/zonalisation of cadres. Learned senior counsel emphasized

that the appellants were recruited as Sub-Inspectors for Hyderabad City

Police which does not fall in any of the zones carved out for localization of

different cadres and argued that the Full Bench erred in holding that no

separate cadre was constituted for Hyderabad City Police. Shri Nageshwar

Rao made a pointed reference to G.O. Ms. No.795 dated 30.6.1976 to

show that in the scheme of organization of local cadres for non-gazetted

posts of the police department, it was specifically mentioned that any post

of Police Officer as defined in Section 3(b) of the Hyderabad Act is outside

the purview of the Presidential Order and the same shall apply to

remaining offices of the police department mentioned in paragraph 4.

Learned counsel then submitted that even while forming new police ranges

vide G.O. Ms. No.1697 Home dated 10.12.1975, a separate range i.e., City

Range was carved out for Hyderabad, Secunderabad and other areas

mentioned in First Schedule to the Presidential Order and argued that by

declaring that members of police force allotted or recruited to Hyderabad

must be construed as having been so allotted or recruited to either the

district cadre of Hyderabad or zonal cadre of Zone VI i.e., Hyderabad,

Nizamabda, Mahabubnagar, Medak and Nalgonda districts, the Full Bench

has virtually negated the exclusion clause contained in paragraph 14(f) of

the Presidential Order and, at the same time, made the creation of City

42

Range redundant. Learned senior counsel argued that in view of the

exclusion clause contained in paragraph 14(f) of the Presidential Order,

the posts of Constable, Head Constable, Sub-Inspector and Inspector of

Hyderabad City Police are not covered by the scheme of

localization/zonalisation and the same cannot be treated as part of Zone VI

as has been done by the Full Bench of the High Court. Shri Nageshwar

Rao submitted that not only the post of Police Officer as defined in Section

3(b) of the Hyderabad Act but various other posts in the Secretariat of the

State Government, in the offices of Heads of Department, Special Office or

Establishment etc. are excluded from the purview of the Presidential Order

and till the pronouncement of the Full Bench, recruitment to all the posts

enumerated in paragraph 14(f) of the Presidential Order was being made

without any preference being given to local candidates. He also referred

to the counter affidavits filed on behalf of the State Government and

Commissioner of Police in the O.As. filed by the private respondents to

show that it has been the consistent stand of the official respondents that

Hyderabad City Police has been treated as free zone and the vacancies in

respect of posts of Hyderabad City Police are notified separately and

selection to various cadres are being conducted for appointment for

Hyderabad City Police only.

43

27. Shri Anoop G. Choudhari, learned senior counsel appearing for the

State submitted that even though in terms of Section 7 of the Hyderabad

Act, the power to appoint an Inspector, Sub-Inspector and other

subordinate of the force vested in the Commissioner of Police, Hyderabad,

after framing of Special Rules for Police Subordinate Service, the said

power can be exercised by other designated authorities and, therefore,

those appointed on subordinate posts in Hyderabad City Police cannot be

treated as part of separate cadre. Shri Choudhari further submitted that

the exclusion clause contained in paragraph 14(f) could operate only if a

separate cadre had been carved out for Hyderabad City and submitted that

in the absence of any recruitment having been made for Hyderabad City

Police, the Full Bench rightly treated the Inspectors of Police working in

Hyderabad City Police establishment as belonging to Zone VI in the zonal

cadre

28. We have given serious thought to the entire matter. It is not in

dispute that the Presidential Order was issued for providing equitable

opportunities and facilities for the people belonging to different parts of

the State in the matters of public employment and education and by virtue

of clause (10) of Article 371D, overriding effect has been given to the

Presidential Order qua other constitutional and statutory provisions. For

44

achieving the objective set out in clause (1) of Article 371D, provisions

have been made in the Presidential Order for localization/zonalization of

cadres and giving preference to the candidates belonging to the particular

local area. Paragraph 3 of the Presidential Order postulates organization

of local cadres for different posts. Paragraph 5(1) thereof declares that

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, transfer and

other matters, as may be specified by the Government in respect of that

category of posts. Paragraph 5(2) empowers the State Government to

make provision for transfer of employees in different contingencies.

Paragraph 6(1) defines local areas. Paragraph 6(2) lays down that each

zone shall be regarded as local area for specified purposes. However, two

exceptions have been carved out in the Presidential Order in respect of

certain categories of posts for the City of Hyderabad. One such exception

is discernible from the language of paragraphs 3(6) and 6(3). In terms of

sub-paragraph (6) of paragraph 3, the Central Government is empowered

to notify the departments in which and categories of posts for which a

separate cadre is required to be recognized for the City of Hyderabad.

This sub-paragraph also lays down that on such notification being issued

the post belonging to each such category and in each such department in

45

the City of Hyderabad (other than those concerned with the administration

of areas falling outside the said City) shall be organized into a separate

cadre and the posts so organized shall be excluded from other cadres. In

terms of paragraph 6 of the Presidential Order, each district and each zone

is regarded as local area but by virtue of sub-paragraph (3) thereof, the

City of Hyderabad is regarded as a local area for direct recruitment to

posts in any cadre under the State Government comprising all or any of

the posts in the said city, in the departments and belonging to the

categories notified under paragraph 3(6). The city is also excluded from

the local area relatable to any other local cadre comprising posts in the

departments belonging to the categories notified in terms of sub-

paragraph (3) of paragraph 6. The other exception is in the form of

exclusion clause contained in paragraph 14(f) which operates on its own

and does not depend on the issue of notification by the Central

Government. By virtue of that paragraph, the provisions contained in the

Presidential Order have been made inapplicable to the specified posts,

which include any post of Police Officer as defined in clause (b) of Section

3 of the Hyderabad Act. This was made more explicit by paragraph 8 of

G.O.P. No.728 dated 1.11.1975 issued by the Government of India,

paragraphs 5 and 21 of G.O. Ms. No.729 dated 1.11.1975 and paragraph 2

of G.O. Ms. No.730 of the same date (both issued by the Government of

46

Andhra Pradesh). When G.O. Ms. No.795 dated 30.6.1976 was issued

incorporating therein the scheme for organization of local cadres for non-

gazetted categories of posts (both Executive and Ministerial) and other

posts equivalent to or lower than Lower Division Clerk, the post of Police

Officer as defined in clause (b) of Section 3 of the Hyderabad Act was

specifically excluded. In paragraph 16 of G.O. Ms. No.795, it was made

clear that as no separate cadre for the City of Hyderabad needs to be

organized for the police department and only ministerial staff of the office

of Commissioner of Police will be included in Zone VI. The posts of the

Police Officers of Hyderabad City were not shown in the cadre strength of

the localized cadres contained in Annexures IV, V, XII and XIII appended

to G.O. Ms. No.795. This was so because there was no localization of

Hyderabad City Police cadres. This was also the reason why a separate

range i.e., City Range was created for Hyderabad, Secunderabad and

other areas mentioned in First Schedule to the Presidential Order.

29. From what we have noted above, it is evident that the post of Police

Officer of Hyderabad City as defined in Section 3(b) was not included in

the process of localization of cadres undertaken in terms of paragraphs 3

and 6 of the Presidential Order. The localization/zonalization of

subordinate cadres in the police department was effected for six

47

zones/ranges but the same was not applicable to Hyderabad City Police. If

this was not so, there was no reason to exclude posts earmarked for

Hyderabad City from the statement of cadre strength of localized cadres

enumerated in various Annexures appended to G.O. Ms. No.795 dated

30.6.1976. The object of exclusion of certain posts from the purview of

the Presidential Order and consequently from the scheme of

localization/zonalization required to be undertaken in terms of paragraphs

3 and 6 thereof was to make recruitment against such posts open for all

without giving any preference to any local candidate. The reason why

special status was given to the posts located in the specified departments

of Hyderabad City, which is capital of the State, was that there should be

no monopoly of candidates belonging to any particular area of the State in

the matter of recruitment etc. against those posts and all eligible

candidates must get opportunity to compete for selection and

appointment.

30. It is also significant to note that after promulgation of the

Presidential Order, Hyderabad City has throughout been treated as an

independent zone or free zone till the impugned judgment was

pronounced and recruitment to the post of Police Officer as defined in

Section 3(b) of the Hyderabad Act was made separately. This was the

48

categorical stand taken by the official respondents before the Tribunal

while contesting the O.A. of the private respondents. In reply to

paragraph 6 of the O.A. filed by Sardar Harihar Singh, it was specifically

averred on behalf of the State that vacancies in respect of posts of

Hyderabad City Police are notified separately and selections/appointments

to the posts of Sub-Inspectors of Police, Civil and Reserve Sub-Inspector,

CAR and Police Constable of both Civil and CAR to the extent of vacancies

are conducted separately and all six zones and Hyderabad City Police are

separate zones for all service matters i.e., appointments, promotions, etc.

and Hyderabad City Police is not part and parcel of Zone VI. The contra

stand taken in the counter affidavits filed before this Court is inexplicable

and is liable to be discarded.

31. We shall now consider whether conclusions (b), (c) and (d) recorded

by the Full Bench of the High Court are legally correct and sustainable.

The observations of the Full Bench that no separate cadre has been

organized and no Police Officer has been appointed under the Hyderabad

Act is based on the premise that in the advertisement issued for

recruitment of Police Officers and appointment orders of the appellants

and other similarly situated persons, reference has not been made to

Hyderabad Act. While doing so, the Full Bench omitted to take note of the

49

fact that in terms of Section 7 of the Hyderabad Act, powers to appoint

and promote Inspector, Sub-Inspector and other subordinates of the police

force vests in the Commissioner of City Police Hyderabad and the said

Section finds specific mention in the preamble to the Special Rules framed

in 1959. Rule 3 of those Rules clearly lays down that as far as Hyderabad

City Police is concerned, the Commissioner of Police shall be the

appointing authority of Sub-Inspectors of Police etc. and by virtue of that

power, the Commissioner of Police, Hyderabad has been making

appointments on various subordinate posts including those of Sub-

Inspectors. In the advertisement of 1985 pursuant to which the

appellants were appointed as Sub-Inspectors, 93 posts were separately

earmarked for Hyderabad City which, for the sake of convenience, was

described as Zone VII or free zone. Even in the subsequent

advertisements issued in 1991 and 1994, the vacancies of Sub-Inspectors

were separately earmarked for Hyderabad City Police Range. The orders

of appointment of the appellants were issued by the Commissioner of

Police. This shows that a separate cadre has been carved out for

Hyderabad City Police and recruitment to the post of Police Officer as

defined in Section 3(b) of the Hyderabad Act has been made by the

designated competent authority in terms of Section 7 thereof. Therefore,

the Full Bench was not justified in curtailing the width and scope of the

50

exclusion clause contained in paragraph 14(f) of the Presidential Order by

holding that there is no separate cadre of Hyderabad City Police and there

is no incumbent of the post of Police Officers as defined in Section 3(b) of

the Hyderabad Act.

32. In view of the above discussion, we hold that the conclusions

recorded by the Full Bench that no separate cadre has been organized for

the City of Hyderabad within the meaning of paragraph 3(6) of the

Presidential Order; that no recruitment to the post of Police Officer as

defined in Section 3(b) of the Hyderabad Act has been made and there is

factually no incumbent of the post of Police Officer under paragraph 14(f)

of the Presidential Order and that the Inspectors of Police working in the

Hyderabad City Police establishment either on promotion to that post or by

direct recruitment must be considered as belonging to Zone VI in the zonal

cadre cannot be sustained and are liable to be set aside.

33. In the result, the appeals are allowed and conclusions (b), (c) and

(d) recorded in the impugned judgment are set aside. The parties are left

to bear their own costs.

……………………………….J. [B.N. AGRAWAL]

51

…………………………… ….J.

[G.S. SINGHVI] New Delhi, October 9, 2009

52

P.V. RADHA KRISHNA Vs STATE OF A.P. .

P.V. RADHA KRISHNA Vs STATE OF A.P. .