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PETITIONER: STATE OF ANDHRA PRADESH & ORS.

       Vs.

RESPONDENT: V. SADANANDAM & ORS. ETC. ETC.

DATE OF JUDGMENT16/05/1989

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) PATHAK, R.S. (CJ)

CITATION:  1989 AIR 2060            1989 SCR  (3) 342  1989 SCC  Supl.  (1) 574 JT 1989  Supl.    232  1989 SCALE  (1)1464

ACT:     Civil  Services:  Services--Recruitment  to--And  method of--Exclusively  within  the domain  of  Executive--Not  for judicial bodies to judge the wisdom of the Executive.     Andhra Pradesh Treasury and Accounts Subordinate Service Rules 1963--Rule 3 and G.O. Ms. No. 196 dated  17.6.83--Head Accountants   and   Sub-   Treasury    Officers--Recruitment of--Amended Rule 3--Whether conforms to para 5(2) of  Andhra Pradesh Public Employment (Organisation of Local Cadres  and Regulation of Direct Recruitment) Order 1975.

HEADNOTE:     In  these two appeals filed by the State of Andhra  Pra- desh against the orders of the Andhra Pradesh Administrative Tribunal,  the  question that arises  for  consideration  is whether  amended Rule 3 of the Andhra Pradesh  Treasury  and Accounts Subordinate Service Rules 1963 Is violative of  the Andhra  Pradesh  Public Employment  (Organisation  of  Local Cadres and Regulation of Direct Recruitment) Order 1975. The circumstances  under  which  this question  has  arisen  are stated hereinbelow.     Prior  to  the filing of Representative  Petitions  Nos. 1595 and 788 of 1984 by the Respondents in the Tribunal  out of which these appeals have arisen, seven persons  belonging to  category 5 of Branch II of the Andhra  Pradesh  Treasury and  Accounts Subordinate Service had presented  a  Petition before the Andhra Pradesh Administrative Tribunal  challeng- ing  the vires of Rule 3 of the Andhra Pradesh Treasury  and Accounts Subordinate Service Rules 1963, being violative  of para 5(1) of Andhra Pradesh Public Employment Order,  issued by the President of India under clauses (1) & (2) of Article 371-D of the Constitution, inter alia on the ground that  it made provision for promotion of clerks of the Directorate of Treasuries  and Accounts and Assistants of the  Finance  De- partment of the Secretariat to the post of Head  Accountants and Sub-Treasury Officer which posts had become Zonal  posts after  the promulgation of Presidential order. According  to them only the U.D. Accountants of the feeder sources of  the Zone were eligible for consi- 343 deration  in that particular Zone for promotion to the  rank

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of  Head  Accountant and Sub-Treasury Officer  and  not  the personnel  from the other Zones, including U.D.  Accountants of the Directorate.     The  Tribunal  held that by virtue of para 5(1)  of  the Presidential  order, for purposes of promotion, Zonal  Cadre had  to be treated as a separate unit and  consequently  the posts  of  Head Accountants/SubTreasury Officers,  could  be filled up by promotion only on Zonal basis and as such  Rule 3 which specified various categories of posts without refer- ence to Zone as feeder posts for the purpose of promotion to the  posts in question were inconsistent with para  5(1)  of the Presidential order. The Tribunal therefore declared that after the promulgation of Presidential order, the provisions of  Rule  3  would have to be reviewed so as  to  make  them consistent  with the provisions of the  Presidential  order. The  Tribunal  further declared that various  categories  of feeder posts including the posts of Assistant Section  Offi- cers of the Secretariat from which promotion to the posts of Head  Accountants/Sub-Treasury Officer could be made,  Could not  be made operative after the promulgation of the  Presi- dential order. After the aforesaid decision of the Tribunal, the State Government amended Rule 3 and gave it a retrospec- tive operation w.e.f. 18.10.1975.     The  validity of the amended Rule was questioned by  the Respondents  in  the context of  certain  Assistant  Section Officers  in  the Finance Department  (Secretariat  Service) borne on Zone VII being appointed to the post of  Sub-Treas- ury  Officers  borne on the Subordinate  Offices  under  the Directorate  of Treasuries and Accounts borne on Zones I  to IV,  by filing the said Representation Petitions before  the Andhra  Pradesh Administrative Tribunal. It was  again  con- tended  before  the  Tribunal that the amended  Rule  3  was violative of the Presidential order. According to the  State the amended Rule had been issued by the Governor in exercise of the power conferred on him by the Proviso to Article  309 of the Constitution and hence the validity of the Rule could not  be questioned by the Petitioners. It was  further  con- tended by the State that the earlier G.O. was not  violative of the Presidential order of the provisions of Article  371- D,  but even so, as it was considered by the Tribunal to  be inoperative because the special provision did not explicitly state  that they had been made in exercise of the  authority vested in the State Government under para 5(2) of the Presi- dential  order, the Government had set right the  lacuna  by framing  the  amended Rule specifically in exercise  of  the powers conferred on Government under para 5(2) of the Presi- dential order. 344     The Tribunal held that the impugned G.O. 196 did not set out  under which sub-para viz., sub-para (a), (b) or (c)  in para 5(2) of the Presidential order, the G.O. was issued and therefore the amended G.O. could not be upheld. The Tribunal also declared that there was no justification for  transfer- ring  a  person who did not belong to concerned Zone  to  be inducted into that Zone, as that would defeat the underlying purpose of the Presidential order.     The  State  has,  therefore,  preferred  these  appeals. Allowing the appeals this Court,     HELD: That the Tribunal has failed to construe para 5(2) of the Presidential order in its proper perspective and give full effect to the powers conferred thereunder on the  State Government  to  make provisions contrary to  the  scheme  of local  cadres prescribed under para 5(1). The words in  para 5(2)  viz., "nothing in this order shall prevent  the  State Government  from  making provision for" sets out  the  over-

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riding  powers given to the State Government under the  sub- para.  Such overriding powers have been given to  the  State Government in express terms in recognition of the  principle that  public  interest and  administrative  exigencies  have precedence  over  the promotional interests of  the  members belonging to local cadres and zones. [353C-E]     In  order  to make the provisions of old  rule  to  have currency  even after the Presidential order was passed,  the Government  issued G.O. Ms. No. 728 on 1.11.75. The  Govern- ment has issued G.O. Ms. No. 196 dated 17.6.83 for  amending Rule 3 so as to make the Rule conform to the requirements of para 5(2) of the Presidential order. [354B, C-D]     The mode of recruitment and the category from which  the recruitment  for  a service should be made are  all  matters which are exclusively within the domain of the Executive. It is   not  for judicial bodies to  sit in judgment  over  the wisdom of the Executive in choosing the mode of  recruitment or the categories from which the recruitment should be  made as  they are matters of policy decision failing  exclusively within the purview of the Executive. [355B]      The question of filling up of posts by persons  belong- ing to other local categories or zones is a matter of admin- istrative necessity or exigency. When the rules provide  for such transfers being effected and when the transfers are not assailed  on the ground of arbitrariness  or  discrimination the  policy of transfer adopted by the Government cannot  be struck down by Tribunals or Court of Law. [355C] 345     Rule 3 of the amended Rule declared to be intra vires of the Presidential Order. [355E-F]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  3490-91 of 1987.     From the Judgment and Order dated 5.3. 1986 and 1.4.1986 of the Andhra Pradesh Administrative Tribunal, Hyderabad  in R.P. Nos. 1595 of 1983 and 788 of 1984.     P.A.  Choudhary, T.V.S.N. Chari, Ch. Badrinath and  Mrs. Sumitha Rao for the Appellants.     C. Seetharammayya, B. Parthasarthi and A. Subba Rao  for the Respondents. The Judgment of the Court was delivered by     NATARAJAN,  J.  These  appeals by the  State  of  Andhra Pradesh  are  directed against the judgments of  the  Andhra Pradesh  Administrative  Tribunal, Hyderabad, in  R.P.  Nos. 1595  and 788 of 1984. Originally, the Government of  Andhra Pradesh, in purported exercise of its powers under Clause  5 of  Article 371-D of the Constitution passed an  order  G.O. Ms.  No. 215 dated 14.7.1986 to annul the two  judgments  of the Tribunal. On 20.12.1986, this Court negatived the powers of  annulment  assumed by the State Government  by  striking down  Clause 5 of Article 371-D and the proviso  thereto  as being  opposed to the basic structure of  the  Constitution. Thereafter, the State has.preferred these appeals by special leave against the judgments of the Administrative Tribunal.     What falls for consideration in these appeals is whether amended  Rule 3 of the Andhra Pradesh Treasury and  Accounts Subordinate  Service Rules 1963 (hereinafter referred to  as the Rules) is violative of the Andhra Pradesh Public Employ- ment (Organisation of Local Cadres and Regulation of  Direct Recruitment)  Order,  1975 (hereinafter referred to  as  the Presidential Order) issued on 18.10.1975 by the President of India under clauses 1 and 2 of Article 371-D of the  Consti-

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tution.     The  validity of the amended Rule was questioned in  the context of certain Assistant Section Officers in the Finance Department of the Government of Andhra Pradesh  (hereinafter referred to as the 346 Secretariat  Officers) borne on zone VII being appointed  to the  post of Sub-Treasury Officers borne on the  Subordinate Offices  under  the Directorate of Treasuries  and  Accounts (hereinafter referred to as the Local Cadre) borne on  zones I  to  IV. For a proper appreciation of the  matter,  it  is necessary  that  Rule 3 before and after amendment  and  the Presidential Order are set out.     Under Rule 3 of the Rules, the posts of Head Accountants and  Sub Treasury Officers could be filled up by any of  the following methods: (i) By direct recruitment; (ii)  By promotion from category 3, 4 or 5 of Branch  II  or from  category 3 of Branch I, III, IV, VI or category  2  of Branch VIi; and (iii)  By  transfer from among the U.D. Clerks  (now  called Assistant Section Officers) in the Finance Department of the Secretariat. Rule 3 thus made provision for the posts of Head Accountants and Sub Treasury Officers being filled inter alia by: Promotion  of  Upper Division Clerks of the  Directorate  of Treasuries and Accounts & Transfer from among the  Assistant Section Officers in the Finance Department of the Secretari- at. However  as per other Rules, only 4 Assistant Section  Offi- cers, at any given time were eligible for being recruited as Sub Treasury Officers.     On 18.10.1975, the Presidential Order came to be passed. Para  3 of the Order which enjoins the State  Government  to organise  the  posts under the State  into  different  local cadres reads as follows: "3.  Organisation of Local Cadres--(1) The State  Government shall,  within a period of twelve months from the  commence- ment  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." 347 Para  5 which deals with local cadres and transfers of  per- sons consists of 2 sub-paras. The para reads as follows: "5. Local Cadres and transfers 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 post. (2) Nothing in this Order shall prevent the State Government from making provision for-- (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 a 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; and (c) the transfer of a person from one local cadre to another local cadre where no qualified or suitable person is  avail- able in the latter cadre or where such transfer is otherwise considered necessary on the public interest.

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         A  fourth clause was subsequently inserted as  per G.O.  Ms. No. 34 G.A.D. (S.P.F.) dated 24.1.81 and it  reads as follows: (d) the transfer of a person from one local cadre to another local as reciprocal condition 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."     Thereafter,  the Government of Andhra Pradesh by  G.O.P. No.  728  General Administration S.P.W.A.  Department  dated 1.11.1975  issued  various instructions in relation  to  the aforesaid  Presidential  Order including  para  5  regarding inter-cadre transfers. 348     Seven  persons belonging to category 5 of Branch  II  of the A.P. Treasury and Accounts Subordinate Service presented a  representation  petition no. 706 of 78  before  the  A.P. Administrative  Tribunal for declaring Rule 3 of  the  Rules ultra vires, in so far as it made provision for promotion of Clerks  of  the Directorate of Treasuries and  Accounts  and Assistants  of the Finance Department of the Secretariat  to the posts of Head Accountants and Sub Treasury Officers,  in violation  of  para 5(1) of the Presidential Order.  It  was urged by them that with the promulgation of the Presidential Order, the posts of Head Accountants and Sub Treasury  Offi- cers had become zonal posts and as such the zone will be the unit  for  recruitment, appointment,  discharge,  seniority, promotion and transfer to such a zonal post under  paragraph 5(1) of the Presidential Order. They claimed that the  Serv- ice  rules issued under Article 309 of the Constitution,  as they  existed at the time of the Presidential Order did  not conform  to the local cadres created under the  Presidential Order and hence the State Government had issued G.O. No. 728 for  suitable amendments being made to the Service Rules  in each  service.  They  further claimed that only  the  U  .D. Accountants  of  the Feeder Sources of the  zone  alone  are eligible  for  consideration  in that  particular  zone  for promotion  to the rank of Head Accountant and  Sub  Treasury Officer  and  not the personnel from other  zones  including U.D.  Accountants of the Directorate of Treasuries  and  Ac- counts  and  Assistants  of the Finance  Department  of  the Secretariat. In reply the State of A.P. while admitting that under   the   Presidential   Order,  the   posts   of   Head Accountant/Sub  Treasury Officers were organised into  zonal posts nevertheless contended that the personnel from differ- ent  categories mentioned under the Rules are  entitled  for being considered for promotion to the rank of Head  Account- ants/Sub  Treasuries Officers by reason of para  5(2)(a)  of the  Presidential Order and the detailed  instructions  con- tained in para 10(a) of G.O.P. No. 728 dated 1.11.1975.  The relevant portion in G.O.P. No. 728 dated 1.11.1975 reads  as follows: "Though  posts may be organised into separate local  cadres, para 5(2) of the Presidential Order provides that the  State Government  may  make a provision for  transfer  of  persons from,  and  to, local cadres  under  certain  circumstances. These are elucidated below: (a) Transfer of a person from any local cadre to any  office or establishment to which the order does not apply, or vice versa. 349 This  enables a provision being made for drawing persons  on tenure basis from different local cadres to fill  equivalent posts  in  Major Development Projects,  Special  Offices  or Establishments  etc.  There are also cases  where  provision

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exists  for  appointment of persons in mofussil  offices  by transfer  to  the offices of Heads of Departments.  For  in- stance,  a  certain proportion of ministerial posts  in  the offices of Heads of Departments is to be filled by  transfer from  ministerial categories in the subordinate  offices  in the  districts. A provision of this kind is protected  under the Presidential Order." The full bench of the Tribunal considered the rival  conten- tions of the parties and came to the view that para 5(1)  of the Presidential Order made it clear that for the purpose of promotion, zonal cadre has to be treated as a separate  unit and consequently the posts of Head Accountants/Sub  Treasury Officers,  which have been declared as zonal posts could  be filled up by promotion only on zonal basis and  consequently Rule  3 of the Rules which specified various  categories  of posts  without  reference to zone as feeder  posts  for  the purpose of promotion to the posts in question are inconsist- ent with para 5(1) of the Presidential Order. The Full Bench therefore held that "after the promulgation of  Presidential Order the provisions of Rule 3 referred to above would  have to be reviewed so as to make them consistent with the provi- sions of the Presidential Order." The Full Bench also con- sidered  the scope and effect of G.O. No. 728 dated  1.11.75 and held as follows:          "In  our opinion, once this point is conceded,  the contents of paragraph 10 of G.O. (P) No. 728 dated 1.11.1975 cited  by the respondents in this respect would be  properly understood.  What  that paragraph clearly suggests  is  that under paragraph 5(2) of the Presidential Order it is open to the State Government to authorise transfer of a person  from any local cadre to any office or establishment to which  the order  does not apply or vice versa. It is in  this  context that the particular paragraph clarifies the types of  trans- fers  which the Government would authorise. The sentence  "a provision  of this kind is protected under the  Presidential Order"  occurring  in that paragraph has, therefore,  to  be read  as  conveying that a provision of this kind  could  be made  by  the State Government under paragraph 5(2)  of  the Presidential Order. Apparently the respondents have mis- 350 interpreted  this sentence to understand that the  provision of Rule 3 of A.P. Treasuries and Accounts Subordinate  Serv- ice Rules in question continues to be operative without  any specified provision being made in the rules in pursuance  of the authority given to the State Government under  paragraph 5(2)  of the Presidential Order. This clearly cannot be  the correct interpretation as discussed above." (Emphasis supplied) Thus  it  came about that the Full Bench declared  that  the various  categories  of feeder posts  including  Assistants, (now  named Assistant Section Officers of  the  Secretariat) from  which promotion to the posts of  Head  Accountants/Sub Treasury  Officers  can be made, cannot  be  made  operative after the promulgation of the Presidential Order.     After the Full Bench of the Tribunal rendered its  judg- ment  holding  that Rule 3 ceased to  have  operative  force after the Presidential Order was made, the State  Government amended Rule 3 and gave retrospective effect to the  amended Rule with effect from 18.10.1975. The amendment to the  Rule was made in the following terms: "The amendment hereby made shall be deemed to have come into force on the 18th October, 1975. AMENDMENT In the said rules, in the Table under Rule 3, in column  (3) against  category  (2)  Head  Accountants  and  Sub-Treasury

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Officers of Branch-II for items (ii) and (iii), the  follow- ing items shall be substituted, namely: (ii) By promotion from category 3, 4 or 5 of Branch II; (iii) By transfer from among the category of Upper  Division Accountants (Senior Accountants) of Branch I, Branch III  or Branch VI or Upper Division Accountants (Senior Accountants) of Branch--VII); (iv)  By  transfer  from among the  category  of  Assistants (Assistant  Section Officers) of Finance and  Planning  (Fi- nance Wing) Department of the Secretariat." Challenging the validity of the amended rule two representa- tion 351 petitions  viz. R.P. No. 1595 of 83 and R.P. No. 788  of  84 came  to be filed before the A.P.  Administrative  Tribunal. Once  again, a plea was raised that amended Rule 3 was  also violative  of  the Presidential Order. The  State  contended that  the  amended Rule had been issued by the  Governor  in exercise  of the powers conferred on him by the  proviso  to Article  309 of the Constitution and hence the  validity  of the  Rule  cannot be questioned by the petitioners.  It  was secondly  contended that the earlier G.O. was not  violative of the Presidential Order or the provisions of Article  371- D,  but even so as it was considered by the Tribunal  to  be inoperative because the special provisions did not explicity state  that they had been made in exercise of the  authority vested in the State Government under para 5(2) of the Presi- dential  Order,  the  Government had set  right  the  lacuna pointed  out  by the Tribunal by framing  the  amended  rule specifically in exercise of the powers conferred on  Govern- ment under para 5(2) of the Presidential Order.     The Tribunal held that what was challenged by the  peti- tioners  was  not the powers of the Governor  to  issue  the statutory  rule but the Government’s power to fill  a  zonal post  by  the  method of transfer by a person  who  did  not belong to the zone in which the vacancy had arisen by refer- ring to para 5(2) of the Presidential Order in the  Preamble of the Notification making the amendment. Dealing with  this question  the Tribunal referred extensively to the  judgment rendered  by the Full Bench of the Tribunal in  the  earlier case  R.P. No. 708 of 78 and held that the judgment  of  the Full  Bench did not afford scope to the State Government  to pass  a G.O. in conflict with para 5(1) of the  Presidential Order and furthermore the impugned G.O. Ms. No. 196 did  not set out under which sub para viz. sub-para a, b or c in para 5(2)  of  the  Presidential Order the G.O.  was  issued  and therefore  the  amended G.O. cannot be upheld. It  was  also held  by  the Tribunal that there was no  justification  for transferring a person who does not belong to concerned  zone to be inducted into that zone merely because such a practice had existed in the past and moreover the underlying  purpose of  the Presidential Order would be destroyed if  the  State Government is allowed to fill up vacancies in zonal posts by a  person not belonging to that zone. It is the  correctness of  the  view taken by the Tribunal that  is  challenged  in these appeals.     Mr.  T.V.S.N. Chari, learned counsel for the  State  and Mr.  Seetaramiah,  learned counsel for the  respondents  ad- vanced arguments in support of their respective  contentions in the appeals. 352     Before  we examine the correctness of the view taken  by the  Tribunal  striking  down the amended Rule  3  as  being violative of the Presidential Order, we may usefully  recall the relevant provisions of the Presidential Order which have

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to be borne in mind. As already stated para 3(1) enjoins the State Government to organise various classes of posts in the civil  services and classes of civil posts under  the  State into different local cadres for different parts of the State in accordance with the further provisions contained in  para 3. For our purposes it is unnecessary to refer to the  other provisions of para 3 except to point out that the  direction contained in para 3(1) is not an inexhorable one. Sub para 8 of para 3 makes provision for the Central Government, if  it is  not  practicable or expedient to organise  local  cadres under the paragraph in respect of any non-gazetted  category of  posts in any department, to make a declaration  to  that effect, and it is further provided that on such  declaration being  made, the provisions of the para shall not  apply  to such  category of posts. It is, however, common ground  that the posts of Head Accountants and Sub-Treasury Officers have been constituted into Zones I to IV and the U.D.  Assistants and Assistant Section Officers in the Finance Department  of the Secretariat have been organised for the city of  Hydera- bad  into  a separate category falling under Zone  VII.  The question for consideration is whether the U.D. Clerks of the Directorate and Assistant Section Officers in the Secretari- at falling under Zone VII can be transferred by promotion to the  local  cadre posts in zones I to IV. The  Tribunal  has held that such transfers cannot be effected for the  follow- ing reasons: 1. The reasons which weighed with the full Bench for  strik- ing  down the unamended Rule 3 will hold good  for  striking down of the amended Rule 3 also. 2.  The amendment to the Rule cannot be deemed to have  been regularly  effected by the Government because the Rule  does not set out under which relevant clause viz. clause (a), (b) or (c) of sub para 2 of para 5 of the Presidential Order the Government has exercised its powers to amend the Rule. 3.  The amendment sought to be effected by the  Govt.  would have  the  effect of destroying the scheme  of  constituting separate  local cadres and separate zones contained in  para 5(1) of the Presidential Order. 4.  There is no convincing reason as to why persons  in  the Directorate who do not belong to Zones I to IV should be in- 353 ducted into those zones and the system cannot be allowed  to be  continued  merely because such a practice was  in  vogue prior to the issue of the Presidential Order. 5.  Since the amended Rule is virtually a repetition of  the old Rule, it cannot be legitimised merely because Government claims to have amended the Rule in purported exercise of its powers under para 5(2) of the Presidential Order.     On  a  consideration  of the matter, we  find  that  the Tribunal has clearly erred in everyone of the reasons  given by it for striking down the amended Rule 3.     In the first place, we must point out that the  Tribunal has  failed to construe para 5(2) of the Presidential  Order in its proper perspective and give full effect to the powers conferred thereunder on the State Government to make  provi- sions  contrary  to the scheme of  local  cadres  prescribed under  Para 5(1). The words of sub-para (2) of Para  5  viz. "nothing  in this order shall prevent the  State  Government from  making provision for" sets out the over riding  powers given  to  the  State Government under  the  sub-para.  Such over-riding  powers have been given to the State  Government in express terms in recognition of the principle that public interest and administrative exigencies have precedence  over the promotional interests of the members belonging to  local cadres  and zones. Since Para 5(2) also forms a part of  the

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Presidential  Order, it forms part of the  scheme  envisaged for  creating  local  cadres and zones.  The  Tribunal  was, therefore,  in  error in taking the view that if  the  State Government  was to exercise its powers under Para  5(2) and make provision for promotion of UD Assistants in the  Direc- torate and Assistant Section Officers in the Secretariat  to be  transferred  to posts in Zones I to IV, it will  be  the very negation of the creation of cadres and zones under Para 5(1) and it will be destructive of the scheme underlying the Presidential  Order. In fact the Tribunal has  realised  the operative  force  of  Para 5(2) to some extent  but  it  has failed  to give full effect to its realisation of the  scope of Section5(2). In Para 12 of its judgment in RP No. 1595 of 1983  the  Tribunal has stated that since the  amended  rule refers  to Para 5(2) of the Presidential Order "it  will  no longer be open to the petitioners to attack the amendment as was done in respect of the earlier amendment in the previous RP". The Tribunal has thus noticed that the amended Rule has been  brought  about by the Government in  exercise  of  its powers under Para 5(2) but it has failed to draw the logical inference following therefrom. 354     As  regards  the  view taken by the  Tribunal  that  the reasons  which weighed with the Full Bench for holding  that the unamended Rule ceased to have operative force after  the Presidential  Order was made would have relevance even  with reference  to the amended Rule, the Tribunal cannot be  said to  have acted correctly. The Full Bench was concerned  with the  amended Rule 3 which was framed long before the  Presi- dential Order was passed. In order to make the provisions of the  old Rule to have currency even after  the  Presidential Order was passed, the Government issued G.O. Ms. No. 728  on 1-11-75.  However, the Full Bench was of the view  that  the G.O. did not conform to the requirements of para 5(2) of the Presidential Order and therefore the Full Bench held the old Rule  cannot  have  operative force  "without  any  specific provision  being made in the Rules in pursuance of  the  au- thority given to the State Government under para 5(2) of the Presidential  Order." It was in acceptance of this  position the Government had issued G.O. Ms. No. 196 dated 17.6.83 for amending  Rule 3 so as to make the Rule conform to  the  re- quirements  of  para  5(2) of the  Presidential  Order.  The Tribunal has failed to realise this position and has  there- fore  committed the error of holding that the view taken  by the Full Bench with reference to the old Rule will  continue to hold good even with reference to the amended Rule. Anoth- er  patent  error  which the Tribunal has  committed  is  in holding  that G.O. Ms. No. 196 is not valid because it  does not  set out the relevant clause under which the  Government was exercising its powers under the Presidential Order.  The Tribunal’s observation is worded as under: "In the impugned G.O. Ms. No. 196 supra, no particular  sub- paragraph  has been invoked. The situation under which  each sub  sub-para  will be applicable has been  stated.  Clearly provisions  contained  in sub sub para (b) and (c)  are  not attracted;  much less sub sub-para (a). We  are,  therefore, not  convinced  that recruitment by the method  of  transfer could come under any one of the aforesaid provisions." The observations of the Tribunal is manifestly wrong because G.O. Ms. No. 196 clearly sets out that the Notification  was being  issued  by the Government in exercise of  its  powers under Section 3 of the Andhra Pradesh Ordinance 5 of 83 read with  para 5(2)(a) of the Presidential Order.  The  Tribunal has  completely  lost sight of the relevant portion  of  the G.O.

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   We are now only left with the reasoning of the  Tribunal that  there is no justification for the continuance  of  the old Rule and for 355 personnel  belonging  to other zones  being  transferred  on promotion to offices in other zones. In drawing such conclu- sions,  the Tribunal has travelled beyond the limits of  its jurisdiction.  We need only point out that the mode  of  re- cruitment  and the category from which the recruitment to  a service should be made are all matters which are exclusively within  the domain of the Executive. It is not for  judicial bodies  to sit in judgment over the wisdom of the  Executive in  choosing the mode of recruitment or the categories  from which the recruitment should be made as they are matters  of policy  decision falling exclusively within the  purview  of the Executive. As already stated, the question of filling up of  posts by persons belonging to other local categories  or zones is a matter of administrative necessity and  exigency. When the Rules provide for such transfers being effected and when  the transfers are not assailed on the ground of  arbi- trariness or discrimination, the policy of transfer  adopted by  the  Government cannot be struck down  by  Tribunals  or Court of law.     In the light of our discussion, we find that the  griev- ance expressed by the State over the judgment of the  Tribu- nal  is well-founded. In so far as Civil Appeal No. 3491  of 87 is concerned, though there was no direct challenge there- in  to the validity of the amended Rule 3, the Tribunal  has allowed the Representation Petition filed by the petitioners because  of the view taken by it in R.P. No. 1595  of  1983. Hence the judgment of the Tribunal in that case also has  to be set aside.     In the result, we set aside the judgments of the  Tribu- nal,  and allow both the appeals and declare Rule 3  of  the amended  Rule to be intra vires of the  Presidential  Order. There will be no order as to costs. Y.   Lal                                             Appeals allowed. 356