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PETITIONER: GOVERNMENT OF ANDHRA PRADESH AND ANR.

       Vs.

RESPONDENT: A. SURYANARAYANARAO AND ORS. ETC.

DATE OF JUDGMENT12/09/1991

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PANDIAN, S.R. (J)

CITATION:  1991 AIR 2113            1991 SCR  Supl. (1)  27  1991 SCC  Supl.  (2) 367 JT 1991 (4)   206  1991 SCALE  (2)548

ACT:     Constitution  of India, 1950: Article  371D--Object  and scope  of---Issuance of Presidential Order  1975--Effect  on A.P.  Panchayati Raj Engineering Service  Rules,  1963--Rule 2A--Assistant Engineers (Deputy Executive Engineers)--Wheth- er  applicable for direct recruitment only or for  promotion also.     Civil Services: .A.P. Panchayati Raj Engineering Service Rules, 1963: Rule 2A--Promotion-Junior Engineer to Assistant Engineer--Whether to be made on the basis of zonal seniority or statewide seniority.

HEADNOTE:     Article  371D  of the Constitution of  India,  which  is peculiar  to the State of Andhra Pradesh only, empowers  the President  to provide by order for  equitable  opportunities and  facilities for the people belonging to different  parts of the State in the matters of public employment and  educa- tion.  As provided therein the President of India  made  the Andhra  Pradesh  Public Employment (Organisation   of  Local Cadres  and Regulation of Direct Recruitment) Orders,  1975, by virtue of which the State was divided into six zones, and local  cadres  of posts in respect of the local  areas  were created.  In respect of Andhra Pradesh Panchayati Raj  Engi- neering  Service the two such zonal posts were Junior  Engi- neer  and  Assistant  Engineer.  Before  the  Administrative Tribunal,  some  promotions  made from  Junior  Engineer  to Assistant  Engineer were questioned, and the  Tribunal  held that promotions should be made on the basis of the Statewide list  and directed the State Government to  redetermine  the position  of  the petitioners before it,  in  the  seniority list.     Aggrieved by the Tribunal’s order, the State  Government and the affected officials have approached this Court by way of the present appeals and special leave petitions.     On behalf of the State Government, it was contended that both  the  posts of Junior Engineer and  Assistant  Engineer were zonal posts under the Presidential Order and the  zonal seniority list had to be followed in the 28 matter  of  promotions  from Junior  Engineer  to  Assistant

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Engineer  and  not the Statewide seniority  list  of  Junior Engineers.     On  behalf  of  the Respondents it  was  contended  that Article  371D (2) of the Constitution refers only to  direct recruitment  and the Presidential Order made under the  said Article cannot make a departure and cannot be made  applica- ble for promotions also. It was further contended that it is the Statewide list that should be the basis for promotion. Disposing of these matters, this Court,     HELD: 1. Notwithstanding anything contained in the  A.P. Panchayati  Raj Engineering Service Rules, 1963  the  promo- tions  have  to be based on zonal list; otherwise  the  very object  sought  to be achieved as per Article  371D  of  the Constitution  of  India and the  Presidential  Order  issued thereunder  would be defeated. The word ’employment’  should be interpreted in a broad and general manner. The expression ’in the matter of public employment’ in clause (1) of  Arti- cle 371D is of wider import. The public employment can be by way of direct recruitment or by promotion. The  Presidential Order would apply both for direct recruitment and for promo- tion in respect of categories specified in the Third  Sched- ule. Article 371D (2) does not make any departure from  this principle. The words ’in particular, therein only lay empha- sis  on  the aspect of creating local cadres  for  different parts of the State for the purpose/of direct recruitment and treat such parts as local areas. This does not in any manner restrict  the  scope of Article 371D wherein it  is  clearly declared that in the matter of public employment, the Presi- dent  is  empowered to make an order in  the  manner  stated therein and the public employment cannot but be  interpreted to  include  promotion  also. It,  therefore,  emerges  that Article  371D is in general terms and applies to the  public employment  as whole and Article 371D(2) in  particular  ap- plies  to  direct recruitment. It is only  complementary  to clause  (1)  and particularises the matters which  an  order made under clause (1) provides for. Any other interpretation would defeat the object underlying these two provisions. [42 D-H, 43 A]     The  General  Manager, Southern Railway  v.  Rangachari, [1962] 2 SCR 586, relied on.     2.1.  Article  371D  is of exceptional  nature  and  the objective is to provide equal opportunities in the  backward areas  in  respect of the specified posts mentioned  in  the Third Schedule which are included in the local cadres  which thus became zonal posts. As mentioned in para 5 of the 29 Presidential  Order and Rule 2-A of the A.P. Panchayati  Raj Engineering  Service Rules, such zones should be treated  as separate  units for the purpose of promotions  also.  There- fore,  there is valid nexus to the object that is sought  to be  achieved and even if there is some anamoly it cannot  on that  basis be said that such promotions for zonal posts  on the basis of the zonal seniority list amounts to discrimina- tion. [44 D-E]     2.2.   Rule 2-A makes it abundantly clear that  for  the purpose  of  recruitment, appointment,  promotion,  transfer etc.  each  zone  shall be a separate unit. Para  5  of  the Presidential  Order  is also to the same effect.  When  once each  zone  is treated as separate unit for the  purpose  of promotion  also in respect of zonal posts then by virtue  of Article 371D and the Presidential Order, the promotion  from the  post of junior Engineer to the post of Assistant  Engi- neer  which are both zonal posts, should be on the basis  of the  zonal  seniority list inasmuch as the  post  of  Junior Engineer and the next promotion post namely  Assistant/Engi-

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neer are included in the local cadres and the zonal list  in the  Third  Schedule. With regard to the higher  post  which included  in the local cadre and which are Statewide  posts, it becomes obvious that the Statewide seniority list of  the Assistant Engineer of all zones should be prepared and  that should  be the basis of promotion to the post  of  Executive Engineer  which is not a zonal post. Therefore,  the  direc- tions  given by the Tribunal to ensure that no Junior  Engi- neer is promoted earlier than their seniors in the Statewide seniority list to the post of Executive Engineer, should  be quashed. [43 F-H, 44 A-B]     S.  Prakasha Rao and Anr. v. Commissioner of  Commercial Taxes and Ors., [1990] 2 SCC 259, relied on.     High Court of Andhra Pradesh and Ors. v. V.V.S. Krishna- murthy and Ors., [1979] 1 SCR 26, referred to.     3.1. All promotions of Junior Engineers (redesignated as Assistant  Executive Engineers) to the next higher  post  of Assistant Engineers (redesignated as Deputy Executive  Engi- neers)  have to be made on the basis of the zonal  seniority list and not on the basis of the Statewide seniority list of Junior Engineers. [44 F]     3.2. Having regard to the historical background and  the object  underlying Article 371D and the  Presidential  Order and  in  particular para 13 of the Presidential  Order,  the promotions, if any made should be 30 treated only as provisional. If Rule 2-A is viewed from this angle  particularly  in the light of paras 5 and 13  of  the Presidential  Order it becomes clear that the said Rule  has to  be given retrospective effect so that the promotions  to the junior posts can be brought in conformity with  Articles 371D  and the Presidential Order.The promotions  made  after the Presidential Order dated 18.11.1975 should be treated as provisional and the Government is permitted to review  these promotions  on  the basis of zonal seniority lists  and  re- adjust the same all the future promotions. from the post  of Junior  Engineer  to the post of Assistant  Engineer  should necessarily  be  made on the basis of  the  zonal  seniority lists. For the purpose of promotion to the post of Executive Engineer,  which is not a zonal post, a Statewide  seniority list  of  the  Assistant Engineers of all  zones  should  be prepared and  such statewide seniority list should form  the basis  of promotion to the post of Executive  Engineer.  The State  Government  is accordingly directed to  prepare  such lists  i.e. zonal seniority lists of various zones  for  the purpose  of  promotions from Junior Engineers  to  Assistant Engineers within the zones and also the statewide  seniority list of the Assistant Engineers of all zones for the purpose of promotions to the post of Executive Engineer. Such of the directions  given by the Tribunal in the matters, which  are contrary to and different from the conclusions now  reached, shall remain quashed. [44 D-E; 44 D-H; 45-A-B]     3.3.  The inter-se seniority and the  consequent  promo- tions of Respondent Nos. 1 to 5 in Civil Appeal No.  3935/88 as well as the petitioners in Special Leave Petition (Civil) No.  2150/87 shall be determined subject to the  directions, now given. [45 B-C]     Y..N. Rangiah and Ors. etc. v.J. Sreenivasa Rao and Ors. etc., [1983]3 SCC 284; N.T. Devin Katti and Ors. v. Karnata- ka  Public  Sen,ice Commission and Ors., [1990]  3  SCC  15, referred to.

JUDGMENT:

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CIVIL APPELLATE JURISDICTION: Civil Appeal No.3985 of 1988.     From  the  Judgment and Order dated  31.12.1987  of  the Andhra Pradesh Administrative Tribunal, Hyderabad in R.P.No. 967 of 1987.                       WITH S.L.P.  (C) No. 9290 of 1988 with S.L.P (C) No. 2150/87  CMP No. 25521/88 and C.A.1342/86    K.Madhava  Reddy, C. Sitaramiah, P.P.Rao,  G.  Prabhakar, K.R. 31 Nagaraja, P.K. Rao, Ms. C.K. Sucharita, B. Kanta Rao, K. Ram Kumar,  B. Krishna Prasad and T.V.S.N. chari (N.P.) for  the appearing parties. The Judgment of the Court was delivered by     K.  JAYACHANDRA REDDY, J.  The questions that arise  for consideration in all these connected cases are confined only to some of the posts of civil services of Andhra Pradesh  in view  of  certain  special provisions  applicable  to  these services.  Article  371D  of the Constitution  of  India  is peculiar  to the State of Andhra Pradesh due  to  historical background.  It  was enacted by  the  Constitution  (Thirty- Second)  Amendment  Act which applied only to the  State  of Andhra Pradesh, with a view to give effect to certain  safe- guards  in the matter of employment opportunities for  resi- dents  of Telangana region. This Article empowers  President to provide by order for equitable opportunities and  facili- ties  for  the people belonging to different  parts  of  the State  of Andhra Pradesh in the matter of public  employment and  in the matter of education. This Article also  provides for  constitution of an Administrative Tribunal  to  receive representations for the redressal of the grievances and  for passing necessary orders. Accordingly the President of India made Andhra Pradesh Public Employment (Organisation of Local Cadres  and  Regulation of Direct Recruitment)  Order,  1975 (’Presidential  Order’  for short) by virtue  of  which  the State of Andhra Pradesh has been divided into six zones  and local  cadres  of posts in respect of the local  areas  were created.  In respect of Andhra Pradesh Panchayati Raj  Engi- neering Service the two such zonal posts are junior Engineer and  Assistant Engineer. The main question that  arises  for consideration  in these cases is whether the promotion  from Junior Engineer to Assistant Engineer should be on the basis of Statewide list or the zonal list. Some of the  promotions made  were  questioned by the affected  persons  before  the Administrative  Tribunal which disposed them  of  indicating that  such  promotions should be made on the  basis  of  the Statewide  list. The State of Andhra Pradesh has  questioned the  same  in C.A.No. 1342/86, C.A.No.  3985/88  and  S.L.P. (Civil)  No.  9290/88 mainly on the ground  that  promotions should  be  confined to only within local cadres  and  zonal posts.  S.L.P.  (Civil)  No. 2150/87 is filed  by  two  such Engineers whose representation was disposed of by the Tribu- nal directing the Government to redetermine their  positions in the Seniority list instead of giving a definite  declara- tion as prayed for by them.      Shri K.Madhava Reddy, learned counsel appearing for the State  of Andhra Pradesh, submitted that both the  posts  of Junior Engineer and Assistant Engineer are zonal posts under the  Presidential Order and the zonal seniority list has  to be followed in the matter of promotions from 32 Junior Engineer to Assistant Engineer and not the  Statewide seniority  list of Junior Engineers. He also submitted  that all promotions made so far pursuant to certain orders should be  treated  as provisional and that  the  State  Government

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should be permitted to review these promotions on the  basis of the zonal seniority list and that all further  promotions shall  be  made on the basis of the  zonal  seniority  list. According to the learned counsel, for the purpose of  promo- tion to the higher post of Executive Engineer which is not a zonal  post, a Statewide seniority list of  Assistant  Engi- neers of all zones should be prepared on the basis of  which promotion  to the post of Executive Engineer will  be  made. Shri Sitaramiah, learned counsel appearing for  respondents, submitted  that  Article 371D(2) refers only to  direct  re- cruitment  and  the Presidential Order made under  the  said Article cannot make a departure and cannot be made  applica- ble for promotions also. On the other hand, it is the State- wide  list that should be the basis for promotions. In  sup- port  of  his submissions he invited our  attention  to  the provisions  of Article 371D and the Presidential  Order  and emphasised the word ’employment’ as occurring in the Article should  be  confined only to direct recruitment.  Shri  P.P. Rao, learned counsel appearing for other set of  respondents in the appeals filed by the State of Andhra Pradesh, submit- ted  that even if either of the lists is to form  the  basis for promotions his clients are not affected and their promo- tions are being unnecessarily delayed. Some of the Engineers of the Andhra Pradesh Panchayati Raj Engineering Service got themselves  impleaded  in the appeal filed by the  State  of Andhra  Pradesh  and Shri B. Kanta Rao  appearing  on  their behalf supported the stand taken by the Government of Andhra Pradesh.     To appreciate these rival contentions it becomes  neces- sary to refer to some of the relevant provisions of  Article 371D  as  well  as the Presidential Order and  some  of  the notifications made thereunder and the relevant provisions of the A.P. Panchayati Raj Engineering Service Rules. On Novem- ber 1, 1956 as a result of reorganisation of the States  the erstwhile  State of Hyderabad was trifurcated and  Telangana region  became  a part of the newly formed State  of  Andhra Pradesh. Certain safeguards were envisaged for the Telangana area in the matter of development and also in the matter  of employment  opportunities and education facilities  for  the residents of that area. In the year 1957 the Public  Employ- ment  (Requirement  as to Residence) Act was  enacted  inter alia  to provide for employment opportunities for  residents of Telangana area. Some of the relevant provisions were held to be unconstitutional by the Supreme Court due to a variety of  causes. The working of the safeguards gave rise to  dis- satisfaction  sometimes in the Telangana area and  sometimes in  the  other areas of the State and even  led  to  violent agitations. A consensus was arrived          33 among several leaders of Andhra Pradesh to make a  concerted effort to analyse the factors which have been giving rise to the  dissatisfaction  and they  suggested  certain  measures known as "Six-Point Formula" and the same has been  endorsed by  the  State  Government. A bill was  brought  forward  to provide  for necessary constitutional authority  for  giving effect to this formula and the same became the  Constitution (Thirty-Second)  amendment Act under which Article 371D  was introduced. The relevant provisions of this Article for  our purpose are as under:               "371-D. Special provisions with respect to the               State of Andhra Pradesh-(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

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             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.               (2)  An  order made under clause (1)  may,  in               particular:-               (a)  require the State Government to  organise               any  class  or  classes of posts  in  a  civil               service  of, or any class or classes of  civil               posts  under, the State into  different  local               cadres  for different parts of the  State  and               allot  in accordance with such principles  and               procedure as may be specified in the order the               persons holding such posts to the local cadres               so organised;               (b)  specify  any part or parts of  the  State               which shall be regarded as the local area-               (i)  for  direct recruitment to posts  in  any               local cadre (whether organised in pursuance of               an  order  under this article  or  constituted               otherwise) under the State Government;               (ii)  for direct recruitment to posts  in  any               cadre  under  any local authority  within  the               State; and               (iii)  for  the purpose of  admission  to  any               University  within the State or to  any  other               educational  institution which is  subject  to               the control of the State Government;               XX                   XX                     XX                                                         (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." 34     It  may be noted that clause (3) provides for  constitu- tion of an Administrative Tribunal. Now we may note some  of the relevant provision in the Presidential Order. In para  2 definitions of the various expression used in the Order  are given. They read thus:               "Para 2. Interpretations: - (1) In this Order,               unless the co text otherwise requires:-                (a)   xx            xx                xx                (b) ’direct recruitment’ includes recruitment               made on a temporary basis but does not include               recruitment  made in pursuance of  any  scheme               approved by the State Government providing for               the regularisation of the services of  persons               holding posts on a temporary basis before  the               commencement this order;               (c)  ’local  area’ in relation  to  any  local               cadre,  means  the  local  area  specified  in               paragraph  6 for direct recruitment  to  posts               such local cadre, and includes, in respect  of               posts belonging the category of Civil  Assist-               ant  Surgeons,  the local  area  specified  in               sub-paragraph  (5)  of  paragraph  8  of  this               Order;               (d)  ’local  authority’ does not  include  any               local  authority which is not subject  to  the               control of the State Government;               (e)  ’local  cadre’ means any local  cadre  of               post  under the State Government organised  in

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             pursuance  of  paragraph  3,  or   constituted               otherwise for any part of the State;               (f) ’local candidate’ in relation to any local               area,  means a candidate who  qualifies  under               paragraph  7 as a local candidate relation  to               such local area;               (g)         xx            xx          xx               (h)  ’Schedule’ means a Schedule  appended  to               this Order;                (i)       xx             xx          xx               (j)  ’specified gazetted category’  means  any               gazetted  category  specified  in  the   Third               Schedule  and  includes  any  other   gazetted               category  notifies  as  such  by  the  Central               Government;                (k)     xx            xx              xx                (l)     xx            xx               xx                      35               (m)  ’Zone’  means  a zone  specified  in  the               Second  Schedule  comprising  the  territories               mentioned therein.                 xx                xx                xx                Para  3. Organisations of Local Cadres:-  (1)               The State Government shall, within a period of               eighteen months from the commencement of  this               order, organise classes of posts in the  civil               services of, and classes of civil posts  under               the  state  into different  local  cadres  for               different  parts of the State to  the  extent,               and in the manner, hereinafter provided.                (G.O. Ms. No. 794, G.A.(A) dated 12.11.1976)               "Provided  that, notwithstanding  the  expira-               tions of the said period, the president may by               order, require the State Government,  whenever               he  considers it expedient so to do, to  orga-               nise  any classes of posts in the civil  serv-               ices of, and classes of civil posts, under the               State into different local cadres for  differ-               ent parts of the State." (Proviso is added  as               per G.O. Ms. No. 34,               G.A.D. (SPFA), dated 24th January, 1981).               (2)  The  posts belonging to the  category  of               Junior  Assistant,  and to each of  the  other               categories  equivalent to, or lower than  that               of  a Junior Assistant in each  department  in               each district shall be organised into a  sepa-               rate cadre.               Explanation:-  For the purposes of  this  sub-               paragraph,  subparagraph (1) of  paragraph  6,               and sub-paragraph (1) of paragraph 8, a  cate-               gory  shall be deemed to be equivalent  to  or               lower  than that of a Junior Assistant if  the               minimum of the scale of pay, of a post belong-               ing to a category or where the post carries  a               fixed  pay, such fixed pay equal to  or  lower               than  the  minimum of the scale of  pay  of  a               Junior Assistant.               (3)  The posts belonging to each  non-gazetted               category,  other  than those  referred  to  in               sub-paragraph (2), in each department in  each               zone shall be organised into a separate cadre.               (4)  The  posts belonging  to  each  specified               gazetted  category in each department in  each               zone shall be organised into a separate cadre.               (5)  Notwithstanding  anything  contained   in

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             sub-paragraphs (3) and (4), the State  Govern-               ment  may, where it considers it expedient  to               do  so  and with the approval of  the  Central               Government,  organise the posts  belonging  to               any of the categories               36               referred to therein, in any department, or any               establishment thereof, in two or more continu-               ous zones into a single cadre.                xx                xx               xx               Para  4.  Allotment of persons:-  (1)  Persons               holding  posts required to be  organised  into               local cadres shall be allotted to such  cadres               by  the  State Government or  any  officer  or               authority  authorised by it in this behalf  in               accordance  with the principles and  procedure               hereinafter specified.               (2)  In allotting persons to local cadres  due               regards  shall  be had to all or  any  of  the               following, namely: -               (a)  the administrative needs of the posts  in               the local cadres;               (b)  the need for the composition of  balanced               local cadres with reference to age and senior-               ity, groups;               (c)  the  length  of service  of  the  persons               concerned  in the part of the State for  which               the local cadre is organised;               (d) knowledge of the persons concerned of  the               languages  spoken and the law in force in  the               part of the State lot which the local cadre is               organised;               (e)  preference of the persons  concerned  for               allotment to any local cadre, where feasible.               xx                   xx              xx               Para 5. Local cadres and transfer of persons:-               (1)  Each part of the State for which a  local               cadre  has  been organised 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.               xx                    xx             xx               Para  13. Certain appointments and  promotions               to  be provisional:- Any certain  appointments               and promotions made after the commencement  of               this  order or any order made in pursuance  of               the  proviso to paragraph 3, as the  case  may               be, and before any local cadre has been  orga-               nised under the provisions of this Order  made               in pursuance of the Proviso to               37               paragraph 3, to any post which is required  to               be included in such cadre shall be provisional               and  shall, within a period of  twelve  months               after  such  organisation,  be  reviewed   and               readjusted  in accordance with the  provisions               of this order.               Explanation:-  For the purposes of this  para-               graph,  any local cadre shall be deemed to  be               organised, with the allotment of persons to it               under  paragraph 4. (Substituted as  per  G.O.               Ms.  No.  234, GAD (SPF-A) Dept.,  dated  24th

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             Jan., 1981).               xx            xx                xx                 THE SECOND SCHEDULE                (See paragraphs 2 (1) (m) and 8 (4)                     Zones Zone I           Shrikakulam and Visakhapatnam districts. Zone II        East Godavari, West Godavari and Krishna                   districts. Zone III         Gunrur, Prakasam and Nellore districts. Zone VI       Chittoor, Cuddapah, Anantapur and Kurnool                  districts. Zone V        Adilabad, Karimnagar, Warangal and Khammam                  districts. Zone VI         Hyderabad, Nizamabad, Mahabubnagar, Medak                  and Nalgonda districts.                         THE THIRD SCHEDULE                   [See paragraphs 2(1) (j) and (4)                     Specified Gazetted Categories Sr. No.   Category               Name of the Department (1)        (2)                           (3) xx         xx                             xx 30.     Assistant Engineers      Panchyati Raj Enginee-                                  ring Department 30 A.  Junior Engineers                    do xx           xx                           xx 40.    Junior Engineers           Public Works Department                                   (Irrigation) 41.    Assistant Engineers         Public Works Department                                       (Irrigation) 42.    Junior Engineers            Public Works Department                                     (R&B) 43.    Assistant Engineers                - do-"                                 (emphasis supplied ) 38     It is clear from these provisos that the primary purpose of  Article  371D was to promote speedy development  of  the backward areas of the State of Andhra Pradesh with a view to secure  balance in the development of the State as  a  whole and to provide equitable opportunities to different areas of the State in the matter of education, employment and  career prospects  in public service. Accordingly  the  Presidential Order was made.     From the above extracted provisions of the Order it  can be  seen that State of Andhra Pradesh was divided  into  six zones  and the 4th zone, with which we are  concerned,  com- prises  of  Chittoor, Cuddapah, Anantpur  and  Kurnool  Dis- tricts.  As  noted  above Schedule  III  enumerates  various specified  gazetted  categories  and  Junior  Engineers  and Assistant  Engineers in the Panchayati Raj  Engineering  De- partment as well as in the Public Works Department  (Irriga- tion)  and  (Roads and Buildings) are  among  those  various categories  mentioned  therein.  Paragraph  3  provided  for organisation of local cadres in respect of classes of  posts in the civil services in the State of Andhra Pradesh.  Under para 3(4) the posts belonging to each specified category  in each  department  in  each zone shall be  organised  into  a separate cadre. Para 4 provides for the allotment of persons holding posts into such local cadres to be organised. Para 5 which  is important, lays down that each part of  the  State for which a local cadre has been organised in respect of any category of posts, shall be a separate unit for purposes  of not only recruitment etc. but also in respect of  promotion. Para 13 lays down that in certain appointments or promotions after  the  commencement of the Presidential  Order  or  any order  made in pursuance of the proviso to paragraph  3  and

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before  any local cadre has been organised, shall be  provi- sional and shall within a period of twelve months after such organisation  of local cadre, be reviewed and readjusted  in accordance with the provisions of the Presidential Order.     A.P.  Panchayati  Raj  Engineering  Service  Rules  were framed  in  the year 1963. These Rules provide for  the  ap- pointments  of different categories of engineers. After  the Presidential Order was issued a new Rule 2-A was  introduced on 26.11.79 to bring the State Rules in conformity with  the provisions of the Presidential Order.               Rule 2-A reads thus:                      "Rule  2-A  Unit  of  Appointment:  For               purposes of recruitment,appointment, discharge               for want of vacancy, re-appointment,  seniori-               ty,  transfer,  promotion and  appointment  as               full  member       in respect of  category  4,               Deputy Executive Engineers, each               39               zone   comprising  the   districts   specified               against each shall be a separate unit:                xx                 xx                xx                Zone  IV:  Chittoor, Cuddapah,  Anantpur  and               Kurnool districts.               xx                   xx               xx               Provided  that  the post of  Deputy  Executive               Engineers in the office of the Chief               Engineer (Panchayati Raj) shall be filled on a               tenure  basis  by drafting  persons  equitably               from different units and the period of  tenure               shall not ordinarily exceed three years;               Provided  further  that the  posts  of  Deputy               Executive  Engineers  in  the  Rigs  Divisions               notified as Special Officers under the  Andhra               Pradesh  Public Employment  (Organisations  of               Local Cadres and Regulation of Direct Recruit-               ment) Order, 1975 shall be filled by  drafting               persons from the units over which the  respec-               tive Rigs Division is having jurisdiction.                (G.O. Ms. No. 1024 PR, dated 26.11.1979)."     Regarding the scope of this rule it is the submission of the  learned counsel for the State of Andhra Pradesh that  a combined reading of Rule 2-A read with para 13 of the Presi- dential  Order would show that the said Rule has  retrospec- tive  effect,  therefore  the Government is  at  liberty  to revise  the promotions made otherwise then on the  basis  of the  zonal  seniority  list. But  Shri  Sitaramiah,  learned counsel, submitted that the said Rule cannot be given retro- spective  effect and the same applies to  vacancies  arising thereafter and therefore the promotions already made  should not be disturbed.     It  is an admitted fact that there was a Statewide  list of Junior Engineers before 28.10.75 namely before the Presi- dential  Order was made. Questioning some of the  promotions made by the Government, representation petitions were  filed before the A.P. Administrative Tribunal. In such matters the Tribunal  observed that as a precautionary measure the  jun- iors to the petitioners therein in the Statewide list cannot be promoted before the petitioners’ cases are considered for the appointment to the post of Executive Engineer which is a higher post. In all the orders passed by the Tribunal  there is an indication that the Statewide list should be the basis for  promotion.  Though they appear to be in the  nature  of interim 40 directions  but the ratio relied upon is that the  promotion

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should be on the basis of the Statewide list. Therefore  the question that has been canvassed by the State Government  in all these matters is that the observation and the directions given by the Administrative Tribunal are opposed to the very object underlying the Presidential Order and is contrary  to various provisions therein.     At  this juncture it is essential to note the  principle and  object underlying the zonal system as provided  for  in the  Presidential  Order.  We have already  noted  that  the object underlying Article 371D is to promote speedy develop- ment  of the backward areas and to provide equal  opportuni- ties  to different areas of the State in the matter  of  em- ployment  etc.  This Article is a  special  provision  which makes departure from the general scheme of the Constitution.     In  High  Court  of Andhra Pradesh and  Ors.  v.  V.V.S. Krishnamurthy  and Ors., [1979] 1 SCR 26 after referring  to the  Statement of Objects and’ Reasons of  the  Constitution (Thirty-Second) Amendment Act, it was observed as under:               "It will be seen from the above extract,  that               the  primary purpose of enacting Article  371D               was  two-fold;  (i)  To  promote  "accelerated               development of the backward areas of the State               of Andhra Pradesh so as to secure the balanced               development of the State as a whole". and (ii)               to  provide "equitable opportunities" to  dif-               ferent  areas  of the State in the  matter  of               education, employment and career prospects  in               public service.               (1) To achieve this primary object, Clause (1)               of  Article  371D empowers  the  President  to               provide by order, "for equitable opportunities               and  facilities  for the people  belonging  to               different parts of the State in the matter  of               public employment and in the matter of  educa-               tion." Clause (2) of the Article is complemen-               tary  to  Clause (1).  It  particularises  the               matters  which an order made under Clause  (1)               may provide. For instance, its sub-clause  (c)               (i)  enables the President to specify  in  his               Order,  "the  extent to which, the  manner  in               which  and  the conditions subject  to  which,               preference  or reservations shall be given  or               made  in the matter of direct  recruitment  to               posts  in  any  local cadre  under  the  State               Government  or under any local authority.  Sub               clause  (c) further makes it clear that  resi-               dence  for  a specified period  in  the  local               area, can be made a condition for  recruitment               to  any  such local cadre.  Thus,  Clause  (4)               also,  directly  is designed  to  achieve  the               primary object of the legislation." 41     The  Presidential  Order was made keeping in  view  this Object and suitable provisions are inserted. With a view  to achieve this Object and in conformity with the provisions of the  Order, the State is divided into six zones and  certain specified  gazetted  services  are  included  in  the  local cadres. The A.P. Panchayati Raj Engineering Services is  one such and two categories of posts namely Junior Engineers and Assistant  Engineers  are such zonal posts. It may  be  men- tioned  here that the validity of the Presidential Order  is not  being questioned. Therefore we have to proceed  on  the basis that all the provisions of the Presidential Order  are valid.     The  further and rather the main submission of  the  re-

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spondents is that the Presidential Order only lays down  the criteria  for claiming eligibility as a local  candidate  on the  basis  of the period of residence or of  stay  in  that local  area  and reservations are meant to be  made  to  the local  cadre  only in respect of direct recruitment  to  the said  posts mentioned therein and therefore the  power  con- ferred  under the Article should be confined only to  direct recruitment. In this context the learned counsel also relied very  much on the expressions used in Article 371D  (1)  and (2).  The learned counsel also submitted that initially  the Junior Engineers are selected by the Public Service  Commis- sion  and are given a ranking and they are allotted  to  the local cadre and to that extent that may become a zonal post. But when it is a question of promotion to the higher post of Assistant Engineer though shown as a zonal post by virtue of being included in the local cadre, it should be only on  the basis  of  the seniority in the  Statewide  list  originally prepared  by  the  public Service  Commission.  The  learned counsel very much relied on the expression ’in the matter of public employment’ and the other expressions used in Article 371D (1) and (2).     First we shall consider the submission that the  purport of  Article  371D and the Presidential Order in  respect  of direct recruitment does not apply to promotion. The  expres- sion ’in the matter of public employment’ in clause (1),  in our  view, is of wider import. The public employment can  be by way of direct recruitment or by promotion. In The General Manager;  Southern Railway v. Rangachari, [1962] 2  SCR  586 this Court considered the scope of Articles 16 (1), (2)  and (4) and it was observed that Articles 16 (1) and (2) of  the Constitution are intended to give effect to Articles 14  and 15(1) of the Constitution and they arc supplemented to  each other. Regarding the meaning of the word "employment" it  is noted that:                "Article  16 (1) should, therefore,  be  con-               strued in a broad and general, and  not pedan-               tic and technical way, so construed,  "matters               relating  to  employment" cannot  mean  merely               matters  prior to the act of  appointment  nor               can ’appointment’ to any               42               office mean merely the initial appointment but               must  include all matters relating to  employ-               ment,  whether  prior  or  subsequent  to  the               employment, that are either incidental to such               employment  or  form  part of  its  terms  and               conditions and also include promotion a selec-               tion post.               "Although Article 16(4) which in substance  is               an  exception  to Arts. 16 (1) and  16(2)  and               should, therefore, be strictly construed,  the               court  cannot  in construing it  overlook  the               extreme  solicitude shown by the  Constitution               for the advancement of socially and education-               ally backward classes of citizens."     It  is thus concluded that Article 16(4) authorises  the State to provide for reservation of appointments as well  as selection  posts.  At  this juncture it may  be  noted  that Article 371D (10) declares that any order made by the Presi- dent shall have effect notwithstanding anything in any other provision  of the Constitution or in any other law  for  the time  being  in force.  Therefore  notwithstanding  anything contained  in  the A.P. Panchayati Raj  Engineering  Service Rules, the promotions have to be based on zonal list  other- wise  the very object sought to be achieved as  per  Article

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371D  and  the Presidential Order would  be  defeated.  Shri Sitaramiah,  however,  laid considerable stress  on  Article 371D  (2) which empowers the President to make an order  "in particular" to specify any part or parts of the State  which shall  be regarded as the local area for direct  recruitment in any local cadre. It is submitted that if clauses (1)  and (2) of Article 371D are read together the Presidential Order can make provision only in respect of appointments by way of direct recruitment and cannot be applied for promotion also. But as laid down in Rangachari’s case the word  "employment" should  be  interpreted in a broad and general  manner.  The ratio  therein should be applied in interpreting  the  words "in  the matter of public employment" occurring  in  Article 371D  also. Consequently it must be held that  Article  371D and the Presidential Order apply both for direct recruitment and for promotion in respect of categories specified in  the Third Schedule. Article 371D (2) does not make any departure from this principle. The words "in particular" therein  only lay  emphasis  on the aspect of creating  local  cadres  for different  parts  of  the State for the  purpose  of  direct recruitment  and treat such parts as local areas. This  does not in any manner restrict the scope of Article 371D wherein it is clearly declared that in the matter of public  employ- ment,  the  President is empowered to make an order  in  the manner  stated therein and the public employment cannot  but be  interpreted  to  include promotion  also.  It  therefore emerges that Article 371D is in general terms and applies to the  public  employment as a whole and  Article  371D(2)  in particular applies to direct recruitment. It is only comple- mentary to clause (1) and particularises 43 the  matters which an order made under clause  (1)  provides for. Any other interpretation would defeat the object under- lying these two provisions.     The  other  submission of Shri  Sitaramiah,  as  already noted, is that even assuming that Rule 2 (a) which came into existence  in  1979 is valid and applies to  promotion  also then it can have only prospective effect and all the  promo- tions prior to this Rule should be only on the basis of  the Statewide list. In considering this argument we have to bear in mind para 13 of the Presidential Order which specifically lays down that certain appointments and promotions after the commencement  of the Order should be treated as  provisional and the same should be reviewed an readjusted in  accordance with the Presidential Order for the purpos of preparing  the local  cadres and allotting to the zones. The learned  coun- sel, however, relied on two judgments of this Court in Y. V. Rangiah  and  Others etc. v. J. Sreenivasa  Rao  and  Others etc.,  [1983] 3 SCC 284, and N.T. Devin Katti and Others  v. Karnataka Public Service Commission and Others, [1990] 3 SCC 157, in support of his submission that the said Rule  cannot be given retrospective effect and that the promotions should be  made  only in accordance with the  unamended  A.P.  Pan- chayati  Raj  Engineering Service Rules,  1963.  But  having regard to the historical background and the object  underly- ing Article 371D and the Presidential Order and in  particu- lar  para  13  of the Order the promotions,  if  any,  made, should  be  treated  only as provisional. If  Rule  2(a)  is viewed from this angle particularly in the light of paras  5 and  13 of the Presidential Order it becomes clear that  the said  Rule has to be given retrospective effect so that  the promotions to the junior posts can be brought in  conformity with  Article 371D and the Presidential  Order.  Accordingly any  promotions made should be treated only  as  provisional and they should be reviewed and readjusted.

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   This  leads  us to the question whether  the  promotions from  the  post  of Junior Engineer  to  Assistant  Engineer should be based on zonal seniority list or on the  Statewide seniority list. Rule 2(a) makes it abundantly clear that for the purpose of recruitment, appointment, promotion, transfer etc.  each  zone  shall be a separate unit. Para  5  of  the Presidential  Order  is also to the same effect.  When  once each  zone is treated as a separate unit for the purpose  of promotion  also in respect of zonal posts then by virtue  of Article 371D and the Presidential Order, as observed  above, the promotion from the post of Junior Engineer to the  post’ of Assistant Engineer which are both zonal posts, should  be on  the  basis of the zonal seniority list inasmuch  as  the post of Junior Engineer and the next promotion post  namely" Assistant  Engineer are included in the local cadre and  the zonal  list as we find-in the Third Schedule.  With  regards the  higher posts which are not included in the local  cadre and which are Statewide posts, it 44 becomes  obvious  that the Statewide seniority list  of  the Assistant Engineers of all zones should be prepared and that should  be the basis of promotion to the post  of  Executive Engineer  which  is not a zonal post. Therefore  it  emerges that the directions given by the Tribunal to ensure that  no Junior  Engineer is promoted earlier than their  seniors  in the Statewide seniority list to the post of Executive  Engi- neer, should be quashed.     Shri Sitaramiah, however, pointed out certain  anamolies if  such  a principle is to be followed.  According  to  the learned  counsel, if the promotions are to be made  only  on the basis of the zonal list than there is every  possibility of  some  of the seniors in the Statewide list  not  getting promotions and the same would result in some of the  juniors becoming  seniors which would ultimately affect  the  promo- tional avenues for the Statewide higher post like  Executive Engineer.  But  it  must be noted that Article  371D  is  of exceptional nature and the object is to provide equal oppor- tunities  in the backward areas in respect of the  specified posts mentioned in the Third Schedule which are included  in the local cadre which thus became zonal posts. As  mentioned in  para 5 of the Presidential Order and Rule 2 (a)  of  the Engineering  Service Rules such zones should be  treated  as separate units for the purpose of promotions also. Therefore there  is  valid nexus to the object that is  sought  to  be achieved and even if there is some anamoly it cannot on that basis  be said that such promotions for zonal posts  on  the basis of the zonal seniority list amounts to discrimination. In S.Prakasha Rao and another v. Commissioner of  Commercial Taxes and Others, [1990] 2 SCC 259, a Bench of three  Judges of this Court affirmed the view taken by the  Administrative Tribunal,  Andhra  Pradesh  that the  zonal  seniority  list prepared  pursuant to the initial organisation and  creation of local cadres is to be maintained and such zonal seniority list is the criteria for promotion.     In  the  result we hold that all  promotions  of  Junior Engineers (redesignated as Assistant Executive Engineers) to the  next higher post of Assistant Engineers  (re-designated as Deputy Executive Engineers) have to be made on the  basis of  the zonal seniority lists as indicated above and not  on the  basis of the Statewide seniority list of  Junior  Engi- neers.  The  promotions made after  the  Presidential  Order dated  18.11.75  should be treated as  provisional  and  the Government  is permitted to review these promotions  on  the basis  of zonal seniority lists and re-adjust the same.  All the  future promotions from the post of Junior  Engineer  to

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the post of Assistant Engineer should necessarily be made on the  basis of the zonal seniority lists. For the purpose  of promotion to the post of Executive Engineer, which is not  a zonal  post,  a Statewide seniority list  of  the  Assistant Engineers of all zones should be prepared and such Statewide seniority 45 list  should  form  the basis of promotion to  the  post  of Executive  Engineer.  The State  Government  is  accordingly directed to prepare such lists i.e. zonal seniority lists of various  zones  for the purpose of  promotions  from  Junior Engineers  to Assistant Engineers within the zones and  also Statewide  seniority list of the Assistant Engineers of  all zones for the purpose of promotion to the post of  Executive Engineer.  Such of the Directions given by the  Tribunal  in the  matters  before us which are contrary to  or  different from  the  above conclusions, remain quashed.  The  inter-se seniority and the consequent promotions of respondent Nos. 1 to 5 in Civil Appeal No. 3935/88 as well as the  petitioners in  Special  Leave  Petition (Civil) No.  2150/87  shall  be determined  subject to the above directions. All these  mat- ters are disposed of accordingly with the above  directions. In the circumstances of the cases, there will be no order as to costs. G.N.                                    Appeals disposed of. 46