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PETITIONER: A.K. NAZEER SAHEB & ORS.

       Vs.

RESPONDENT: A.P. PUBLIC SERVICE COMMISSION & ORS.

DATE OF JUDGMENT:       19/02/1998

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T D.P. Wadhwa. J.      The  appellants,   numbering   three,   were   directly recruited as  Assistant Directors  of Sericulture  under The Andhra  Pradesh  Industries  Service  Rules  by  the  Andhra Pradesh  Public   Service  Commission  after  following  the procedure prescribed.  Their  appointments  were  challenged before the Andhra Pradesh Administrative Tribunal (for short ‘the  Tribunal’)   by  Inspectors   of  Sericulture,   being respondents 4  to  7.  Under  the  relevant  Andhra  Pradesh Industries  Service   Rules  post   of  Assistant   Director Sericulture  is   a  promotional  post  from  the  Inspector Sericulture.      Respondents 4  to 7  who challenged  the appointment of the appellants  were  also  candidates  for  appointment  as Assistant Directors  Sericulture by  direct recruitment  but they  were   not  able   to  quality.  They  challenged  the appointment  of   the  appellants  on  the  following  three grounds:      (1) According  to  the  Rules,  the      question  of   direct   recruitment      arises only  if there are more than      five permanent vacancies. If direct      recruitment is to be made for three      posts,  therefore   should  be   15      permanent vacancies. There were not      so many vacancies.      (2)  It   will  not  be  in  public      interest to  recruit candidates  to      the posts of Assistant Directors of      Sericulture    without    practical      experience  when   candidates  with      practical      experience      were      available.      (3) The  proposal  to  make  direct      recruitment affects  the  right  of      the  petitioners   who  are   fully      qualified    and    eligible    for      promotion.      Grounds 2  and 3 were not considered by the Tribunal in

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any detail  as those appeared to be meaningless. As a matter of fact  respondents 4  to 7  were  initially  appointed  as Assistant  Inspectors   of  Sericulture   and   subsequently promoted as  Inspectors of  Sericulture.  These  respondents when  they   were  appointed   as  Assistant  inspectors  of Sericulture had  not  practical  experience  in  Sericulture industry as  envisaged in  the Service  Rules yet  they were sent for 15 months training for a Diploma in Sericulture. It is not that the appellants did not possess the qualification prescribed for appointment to the post of Assistant Director of Sericulture,  the only ground which found favour with the Tribunal in  quashing their  appointment was that there were no permanent  posts of  Assistant  Director  of  Sericulture under  the   Rules  and  as  such  the  appointment  of  the appellants was  not legal.  The  impugned  judgment  of  the Tribunal is  dated March  27. 1989.  The appellants  filed a review petition  before the  Tribunal which was dismissed by the Tribunal  by order  dated August  9. 1989.  The Tribunal affirmed its view that a substantive vacancy and a permanent post were not the same. In the impugned judgment dated March 27, 1989, the Tribunal observed as under:      "Admittedly,  according  to  Rules,      appointment   to   the   posts   of      Assistant    Sericulture    Experts      redesignated as  Assistant Director      of Sericulture  can be  made either      by   direct   recruitment   or   by      transfer   from   A.P.   Industries      Subordinate  Services.  Appointment      by direct  recruitment can  be made      only when  there are moer than five      permanent posts.  According to  the      Respondents, there  are 30 posts of      Assistant Directors of Sericulture.      They have  not stated  how many  of      these  are  permanent  posts.  They      have however  stated that  17 posts      of    Assistant    Directors    are      continuing for  more than 10 years.      In the  course of  the hearing  the      learned G.P. stated that there were      only two permanent posts. According      to the  explanation below Rule 6 of      the  A.P.   State  and  subordinate      Service  Rules  these  are  in  the      nature of substantive vacancies and      direct  recruitment   can  be  made      against   such   posts.   But   the      question  is   whether  substantive      vacancies   are   synonymous   with      permanent posts.  In the  course of      the hearing,  the counsel  for  the      petitioner argued  that a permanent      vacancy   is   different   from   a      substantive vacancy  as defined  in      the Explanation below Rule 6 of the      A.P. State  and Subordinate Service      Rules.  On   the  other  hand,  the      counsel for  the Respondents argued      that there  is no  such  difference      and  that   a  substantive  vacancy      should be  deemed to be a permanent      post for  purposes of the rules. In      this connection,  they referred  to      the       Webster        Dictionary

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    (Encyclopedic Edition) in which the      word ‘substantive’  is said to mean      permanent. It  seems to me however,      the explanation below Rule 6 of the      State and Subordinate Service Rules      makes   a    distinction    between      vacancies in  the  permanent  cadre      and  other  substantive  vacancies.      While   all    vacancies   in   the      permanent cadre  are substantive it      cannot be said that all substantive      vacancies are  permanent. The  term      ‘substantive’ seems  to be  broader      in  connotation   than  the   terms      ‘permanent    post’.    The    term      ‘substantive   vacancies’    cannot      therefore be regarded as synonymous      with permanent  posts. While Rule 8      of the General Rules permits direct      recruitment   against   substantive      vacancies, according to the proviso      (6) below  Rule 2 of the Industries      Service  Rules  direct  recruitment      can be  made only  when  there  are      more than  five permanent posts. It      is  well   established  that  where      there is  a  difference  between  a      General Rule and a Special Rule the      latter   will   prevail.   In   the      circumstance, I  am of  the opinion      that unless  it is established that      there are  more than five permanent      posts  as   distinguished  from   5      substantive    vacancies     direst      recruitment is  not permissible  in      terms of these rules."      It  is   this  reasoning   of  the  Tribunal  which  is challenged before  us and  it is submitted by the appellants that this led to miscarrige of justice. At this  stage we  may refer  to the  relevant Rules  on the subject .      (1) Andhra Pradesh Industries Service Rules      Rule 1. Constitution:- The service shall consist of the      following categories of Officers, namely:- Assistant Sericultural      1. By direct recruitments; or Expert                      2. By transfer from category-I (redesignated as Assistant     (Sericultural Inspector/ Director of Sericulture)       Supervisors) or Class IX of                                the A.P. Industries                                Subordinate Service. Provided that :      (a)...................      (b)...................      (c)..................      (d)...................      (e)..................      (f) Appointment  to the  post of  Sericulture Export by      direct recruitment  shall be  made only  when there are      more  than   5  permanent  posts.  Our  of  every  four      permanent vacancies  of Asstt.  Sericulture Export  the      third vacancy  shall be filled or reserved to be filled      by direct recruitment.      (Ins. by B.O.Ms. No 315, Inds, Dt. 26.4.1973  w.e.f. 26      (2) Andhra Pradesh State and Subordinate Service Rules      Rule 6. Method of Recruitment:- Where the normal method

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    of recruitment  to any  service, class  or category  is      neither solely  by direct  recruitment  nor  solely  by      transfer but  is both  by  direct  recruitment  and  by      transfer -           (a) the  proportion or  order in which the special      rules concerned  may require  vacancies to be filled by      persons recruited  direct and  by  those  recruited  by      transfer shall  be    applicable  only  to  substantive      vacancies in the permanent cadre;           (b)  a  person  shall  be  recruited  direct  only      against a  substantive vacancy  in such permanent cadre      and only  if the  vacancy is one which should be filled      by a direct recruit under the special rules referred to      in clause (a);      Provided that  for special  reasons, direct recruitment      may also be made against the temporary posts.      (Added by G.O.Ms. No.739, GA (Ser-A), Dt.22-12.1984).      (c) recruitment to all other vacancies shall be made by      transfer:      Provided that  nothing in  this  rule  shall  adversely      affect any  person who  on the  date of  issue  of  the      special  rules   referred  to   in  clause  (a)  was  a      probationer in  such service, class or category, as the      case may be.           Explanation:-  For   the  purpose  of  this  rule,      notwithstanding anything  contained in  these rules  or      special or  ad hoc  rules ‘substantive vacancies’ shall      mean  all   vacancies  in   the  permanent  cadre,  all      vacancies in the posts which have been in existence for      more than  10 years.  All vacancies in 75% of the posts      which have  been in existence for more than 3 years but      less than  10 years  and all  vacancies in  50% of  the      posts which  have been  in existence  for more than one      year but less than 3 years.      (G.O.Ms.No. 310,    G.A. (Ser.D).      Dt.24.5.1984 w.e.f. 8-3-1983).      Considering these  Rules we  think there  can be hardly any scope for controversy raised in the matter. Requirements of  filling   up  of   three  posts  of  Assistant  Director Sericulture by  direct recruitment are (1) Existence of more than 5  permanent posts  in the  cadre and (2) Possession of prescribed qualifications  by the  incumbent.  There  is  no dispute that  the  appellants  did  possess  the  prescribed qualifications. Tribunal has noted that the State Government stated that  there were  30  posts  of  Assistant  Directors Sericulture but  it was not stated as how many of these were of permanent  posts though  17 posts had been continuing for the last more than 10 years. That being so under Explanation (amended w.e.f.  8.3.1983) to  Rule 6  of the A.P. State and Subordinate Service  Rules these 17 posts would certainly be permanent posts in the permanent cadre of Assistant Director Sericulture and  any vacancy  in  these  posts  would  be  a substantive vacancy  to be  filled by a direct recruit under Rule 6.  Three vacancies  for direct  recruitment were  thus clearly available. Contention raised by the respondents 4 to 7 therefore  that there were no permanent posts of Assistant Director of Sericulture and therefore the direct recruitment by the  A.P. Public  Service Commission  was illegal was not correct. Thus,  while notifying  the 3  vacancies for direct recruitment the  ratio fixed in sub-rule II (f) of Rule 2 of the A.P.  Industries Service  Rules was  followed keeping in view the  availability of such number of permanent posts. As a matter  of fact,  it is  the stand of the State Government that there were 4 posts of Assistant Director of Sericulture as against 3 which were available for direct recruitment and

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the A.P.  Public Service Commission was informed accordingly on October,  31, 1988.  It has  also been pointed out by the State Government  that there  are standing  orders issued by GOMs No.47  dated January  31, 1987 where in it was provided that there  should be  at least  30% of the posts were to be earmarked for  direct recruitment  and  that  there  is  yet another GOMs  No. 739  dated 22.12.1984  which provides  for direct  recruitment   for  special   reasons  even   against temporary posts.  To this again the Tribunal was of the view that these  GOMs could not be made applicable unless special rules were suitably amended.      The qualifications  required for  the post of Assistant Director Sericulture  under direct  recruitment are a degree in Botany, Zoology, Agriculture of any recognised University with Diploma  in Sericulture  of a recognised Institute. The State Government has also pointed out that the contention of the respondents  4 to  7 that  it would  not  be  in  public interest to  recruit Assistant  Director of  Sericulture  by direct recruitment  without having  practical experience was also not correct as by GOMs 315 dated April 16, 1973 in Rule 7(ii) it  had been  added that  the  candidate  selected  by direct recruitment  to the  post  of  Assistant  Sericulture Expert Assistant  Director of  Sericulture) shall during the period of  probation and  before posted  with  regular  duty would undergo  a course of training for a period of 6 months in Mulberry  cultivation, silkworm rearing and silk reeling. As noted  above post of Assistant Director of Sericulture is a  promotional   post  from  Inspector  of  Sericulture  and respondents  4  to  7  would  certainly  be  considered  for promotion in  due course  on merit  to fill  up the  post of Assistant Director of Sericulture available to be filled for by promotion.  There is  no dispute  that post  of Assistant Sericulture Expert  is redesignated as Assistant Director of Sericulture and  in  our  view  the  Tribunal  unnecessarily raised this  controversy.  In  the  petition  filed  by  the respondents before  the Tribunal  they themselves  sought  a declaration that  the rights of the petitioners and other to have their  cases considered  for promotion  to the  post of Assistant Director  of  Sericulture  (Assistant  Sericulture Expert) could not be taken away by making direct recruitment to the  said posts  contrary to the Statutory Rules and they had also  sought quashing  of  the  advertisement  No.  3/88 dated 7.5.88 of the Andhra Pradesh Public Service Commission published in  Deccan Chronicle  dated 12.5.88  so far  as it related to the filling up of the posts of Assistant Director of Sericulture.  Thus  the  whole  controversy  which  arose before the  Tribunal was  if the  substantive vacancies were synonymous with  permanent posts. The Tribunal held that the term ‘substantive’  seemed to  be broader in connotation and substantive vacancies  could not  therefore be  regarded  as synonymous with  permanent  posts  under  the  Rules.  This, according to  us, is not correct. The Tribunal, in our view, quite unnecessarily  raised of  its own  difference  between special and  general laws.  Constriction of  A.P. Industries Service Rules  and the  A.P. State  and Subordinate  Service Rules has  to be  done harmoniously  and as a matter of fact there is  no conflict  between the  two set  of  Rules.  The appellants are  right in  their submission  that substantive vacancies are  synonymous with  the vacancies  in  permanent posts. The  three appellants,  being the  directly recruited Assistant Director  Sericulture, have filled the substantive vacancies in  the permanent cadre of the Assistant Directors Sericulture.      In this  view  of  the  matter  3  posts  of  Assistant Director of  Sericulture were clearly available to be filled

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by direct  recruitment to  which the  appellants  have  been appointed. We,  therefore, allow  the appeals, set aside the impugned order  of the  Tribunal holding otherwise and would dismiss the petitions filed by the respondents 4 to 7 before the Andhra Pradesh Administrative Tribunal.