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.

15

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  

23

(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  

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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  

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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  

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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]

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…………………………… ….J.

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

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