http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: THE COMMISSIONER OF COMMERCIAL TAXES,ANDHRA PRADESH, HYDERAB

       Vs.

RESPONDENT: G. SETHUMADHAVA RAO & ORS.

DATE OF JUDGMENT:       17/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) MAJMUDAR S.B. (J)

CITATION:  1996 AIR 1915            JT 1996 (2)    44  1996 SCALE  (1)721

ACT:

HEADNOTE:

JUDGMENT:                        O R D E R      Leave granted.        Though  the respondents  have been served with notice they are not appearing either in person or through counsel.        We  have heard Sri Ram Kumar, learned counsel for the appellants.        This appeal by special leave arises from the order of the Administrative  Tribunal of  Andhra  Pradesh  passed  on December 2,  1992 in  O.A. No.5158/92.  The Tribunal  in the impugned order  has held  that though the posts of Assistant Conmercial Tax  officers etc.  are governed  by  rules  made under proviso  to Article  309 of the Constitution issued in G.O. Ms.  No.107 dated  January 30, 1962 and G.O. Ms. No.81- Revenue, dated  February 3,  1990, Rule 22 of the A.P. State and Subordinate  Service Rules  is  not  applicable  to  the recruitment  by  transfer  and  promotion.  Consequently,the Government was  not justified  in applying  the rule  to the above services.  The view  taken  by  the  Tribunal  is  not correct in view of special rules holding the feild.        Rule 5 of the A.P. Commercial Tax Subordinate Service Rules (the special Rules) reads thus:      "Special Representation:- Except in      so far  as it relates to physically      handicapped  persons  the  rule  of      special   representation   (General      Rule 22)  shall apply separately to      the appointment  of Commercial  Tax      Officers by  directrecruStment  and      to their appointment by transfer."        Rule  22 of  the State and Subordinate Service rules, which is  the general  rule, which alone is re1evant for the purpose of this case reads thus:      "22.  Special  representation:  All      appointment to  a service, class or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

    category-      (i) by  direct recruitment,  except      where the  Government by  a general      or  special   order  made  in  this      behalf except  such service,  class      or category;      (ii)  otherwise   than  by   direct      recruitment,  where   the   special      rules lay  down that  the principle      of  reservation   of   appointments      shall apply  to such service, class      or category;  shall be  made on the      following basis;      "Provided further  that  the  carry      forward   vacancies   and   current      reserved vacancies in a recruitment      year   shall   be   available   for      utilisation even  where  the  total      number of  such reserved  vacancies      exceed s  (52%)  of  the  vacancies      filled  that   year  in   case  the      overall   representation   of   the      Scheduled  Castes   and   Scheduled      Tribes in the total strength of the      concerned grade  or cadre,  has not      reached the  prescribed  percentage      of  reservati   on  of   (15%)  for      the5cheduled Castes  and  (6%)  for      the Scheduled Tribes respectively."      Rule 5  of the Special Rules envisages applicability of Rule 22  of the State and Subordinate Service Rules (General Rules) for  appointments to  the above service. The relevant proviso to  rule 22  extracted hereinbefore  postulates that the carry  forward vacancies  and current reserved vacancies in a  recruitment year  shall be  available for  utilisation even where  the total  number  of  such  reserved  vacancies exceeds 52%  of the  vacancies filled  that year in case the overall representation of the Scheduled castes and Scheduled Tribes in  the total  strength of  the  concerned  grade  or cadre,  has   not  reached   the  prescribed  percentage  of reservation of  15% (subsequently  increased to 16%) and for the Scheduled  Tribes 6%  (subsequently increased to 7%), as the case may be.      In General  hanaqer,  Southern  Railway  v.  Rangachari [(1962 (2)  SCR p.586],  the Constitution Bench per majority had held  that the  matters relating  to  employment  cannot mnean merely matters prior to the act of appointment nor can appointment to an office mean merely the initial appointment but must  include all matters relating to employment whether prior or  subsequent to  the ewployment    that  are  either incidental to  such employment or form part of its terms and conditions and  also include  promotion to a selection post. This principle was reiterated by a bench of 7 Judges of this Court in  State of  Kerala v.  N.M.Thomas &  Ors. [(1976)  1 SCRp.906]. The  same was  followed  per  majority  in  Akhil Bharatiya Soshit  Karamchari Sangh  (Railway)  v.  Union  of India &  Ors. [(1981) 1 SCC 246]. It was thus interpreted by this Court that appointment would include promotion.        The  reservation for  Scheduled Castes  and Scheduled Tribes in  contra distinction  to the  rest  of  the  Indian community and  others are  classified to  accord fundamental right of equality of opportunity to the Scheduled Castes and Scheduled Tribes  for the purpose of adequate representation in the  services under  the State. In 1ndra SawhneY and Ors. v. Union  of India  and Ors.  [(1992) Supp.  3 SCR  217],  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

larger bench  of nine  Judges per majority, in which Justice A.M. Ahmadi,  J. (as he then was) did not participate on the issue since  it did not directly arise for decision therein, held that reservation of appointment or post under Art.16(4) is confined to initial appointment only and cannot extend to provide reservation  in matters  of promotion. However, this Court uphe1d  the promotions  made until  the  date  of  the judgment, namely,  November 16,  1992 and held that wherever special rules  have not  provided reservation in appointment by promotion,  the same  was permitted  to  be  done  within 5years from  that date. The Parliament amended Article 16 by 77th Constitution (Amendment Act) 1995 WhiCh came into force from June  17, 1995  incorporating clause 4A to Art.l6 which reads thus:        "Nothing  in this  Article  shall      prevent the  State from  making any      provision   for    reservation   in      matters of  promotion to  any class      or classes of posts in the services      under the  State in  favour of  the      Scheduled Castes  and the Scheduled      Tribes which, in the opinion of the      States,    are    not    adequately      represented in  the services  under      the State."        The  Parliament  by  amending  the  Constitution  and introducing Art.l6(4A)  has recoved  the base as interpreted by this  Court in Indra Sawhney’s case that appointment does not include promotion by making express provisions that when the State  forms an  opinion that  members of  the Scheduled Castes or  Scheduled Tribes  are not  adequately represented inany service  or to  any class  or classes  of base  in the service under  the State,  the State  is empowered  to  make provisions for  reservation by promotion. Article 16(1) does not prevent the State from making such a provision. In Indra Sawhney’s case  also, this  Court reiterated  that right  to equality under  Article 16(1)  is equally  applicable to the Scheduled Castes  and Scheduled Tribes and Articles 16(4) is not an  exception. Reservation  is part  of  the  scheme  of equality under  Article 16(1).Article 16(4A) would establish that the  interpretation put up in Ranqachari’s. Thomas’ and Karamchari Sangh’s cases received parliamentary approval. It would thus  be clear  that as  a principle  of law,  rule of reservation can  apply not  only to  initial recruitment but also in  promotions where  the State  is of the opinion that Scheduled Castes  and Scheduled  Tribes are  not  adequately represented in  promotional posts  in class  or  classes  of service under  the State.  It is  seen that  Rule 22  of the general Rules provides reservation for appointment by direct recruitment. By Constitutional parameters and interpretation of law  by this Court,reservation under Articles 141B, 16(1) and 16(4) would include reservation in promotion as well.      In view  of the  above, the stand taken by the Tribunal that Rule 22 would apply only for direct recruitment and not for appointment by promotion, is illegal.          The  appeal  is  accordingly  allowed  but  in  the circumstances, without costs.