Andhra HC (Pre-Telangana)
N. Brahmaiah And Ors. vs The Govt. Of A.P. Rep. By Its Secretary, ... on 28 March, 1994
Equivalent citations: 1994(2)ALT633
Author: T.N.C. Rangarajan
Bench: T.N.C. Rangarajan
JUDGMENT M.N. Rao, J.
1. These two writ appeals arise out of Writ Petition Nos. 15660 of 1992 and 1102 of 1993 which were disposed of along with certain other writ petitions, by a learned Single Judge of this Court by a common order dated 18th January, 1994. What was essentially at issue before the learned Single Judge was the method of appointments to the common cadre of Class-II Officers in the A.P. State Co- operative Bank. Section 116-A of the A.P. Co-operative Societies Act, 1964 contemplates constitution of common cadres of posts in certain societies. Clause (a) which is relevant is in the following terms:
"116-A: (1) Notwithstanding anything in this Act, the Registrar shall have power to constitute a common cadre for the following posts, namely:
(a) Co-operative Banks (i) General Managers of Co-operative Central Banks and Deputy General Managers of Appex Bank, (ii) Deputy Managers of Co-operative Central Banks and Assistant General Managers of Andhra Pradesh State Co-operative Bank."
We are concerned with sub-cluase (ii), namely, Deputy Managers of Co- operative Central Banks and Assistant General Managers of Andhra Pradesh State Co-operative Bank. As a consequence of Section 116-A, a common cadre has to be brought into existence consisting of the above two categories of Officers. No written test was prescribed for Class-II cadre; 40 marks were allotted for viva voce out of which 20 marks were earmarked for "group discussion". The learned Single Judge found that the "group discussion" could not yalidly form part of viva voce and that earmarking of 40 marks for viva voce was not legally permissible. The learned Single Judge opined that the marks earmarked for oral test should not exceed 25%. The Selection Board as per the Regulations was to consist of only three members, but actually four members - the fourth one, a representative of National Bank for Agricultural and Rural Development (NA BARD) was co-op ted as an expert and that was faulted by the learned Single Judge. In the result, the learned Judge allowed the writ petitions and quashed the selections.
2. The appellants before us, who figured as petitioners in Writ petition Nos. 15660 of 1992 and 1102 of 1993, raised certain additional points, namely, (i) There was no reservation in favour of persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes; and (ii) The Regulations framed were ultra vires Section 116-A (2) of the Act. So far as the first point is concerned, the learned Single Judge negatived the contention relying upon the authority of the Supreme Court in Indra Sawhney v. Union of India, . On the second point no definite view was expressed by the learned Single Judge.
3. The Andhra Pradesh State Co-operative Bank, pursuant to the judgment of the learned Single Judge, has once again initiated the process of selection to fill up Class-II cadre posts. The learned Counsel for the appellants has raised before us the following contentions:
(1) Failure on the part of the Co-operative Bank to reserve posts in Class-II cadre in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Backwared Classes is violative of the constitutional mandate under Article 16 (4);
(2) G.O.Ms.No. 55, Food and Agriculture, dated 1st February, 1977 by which reservation was confined to posts to be filled by direct recruitment alone is contrary to Section 116-B (a) of the Act;
(3) The existing Common Cadre Regulations framed under Section 116-A are ultra vires the powers of the Registrar under Section 116-A (2); and (4) Earmarking 22 marks for "service" in the feeder post is arbitrary.
4. Re: (1): We do not find any merit in the contention that failure to reserve posts in favour of persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes in Class-II common cadre is violative of the constitutional mandate envisaged in Article 16 (4). The position is no longer res Integra. It was ruled by the Supreme Court in Indra Sawhney v. Union of India, . that there cannot be any reservations at the promotional levels for persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes. The learned Single Judge after elaborately discussing this aspect, concluded:
"Thus, all the eight learned Judges (in Indra Sawhney v. Union of India) who expressed their views on this question have unanimously held that reservations have to be confined to first appointment and that they are out of place in the case of promotions. The petitioners in these two writ petitions therefore, have no case whatsoever for having the policy of reservations extended to the cadre posts of Class-II Officers and they have to reconcile themselves to competing with others on the basis of their efficiency and competence."
We entirely agree.
5. Re: 2:- Section 116-B confers power on the State Government to issue directions to a society or class of societies in regard to appointments falling under Section 116-A. Clause (a) speaks of reservation of appointments in any cadre and it is in the following terms:
"116-B (a) for the reservation of appointments or posts under any such society in any cadre created under the said section in favour of, or......" G.O.Ms.No. 55, Food and Agriculture, dated: 1st February, 1977 issued under Section 116-B encompasses "appointments to all posts in all co-operative Institutions to be filled by direct recruitment on temporary or regular basis". It thus excludes reservation at the promotional levels. The contention advanced before us is that there should have been separate notification in respect of each cad re; there cannot be a general notification to certain category of posts in all Co- operative Institutions. We are not inclined to accept the contention raised by the learned Counsel for the appellants. The power conferred on the Government under Section 116-B is very wide. It includes appointments or posts under any Society in any cadre falling within the ambit of Section 116-A. We cannot interpret the general words in a narrower sense confining their application only to any particular cadre. Power to issue notifications in respect of any cadre includes power to issue notifications to all cadres and this power also takes in cadres which comprise posts to be filled by direct recruitment and also by promotion. When the benefit of reservation was confined only to appointments to be made by direct recruitment, it cannot be said that the notification is ultra vires Section 116-B (a).
6. Re.3:- The argument advanced before us is that inasmuch as sub-section (2) of Section 116-A confers power on the Registrar to frame Regulations, the existing regulations which have also been approved by the Registrar cannot be treated as regulations framed by the Registrar. The Common Cadre Regulations placed before us do not show that they have been framed by a different authority and only approved by the Registrar. Regulation 2.1 (vii) defines Regulations as "the common Cadre Regulations as approved by Registrar of Co-operative Societies under Section 116-A of the Andhra Pradesh Co-operative Societies Act," The definition of "regulations" mentioning that they mean 'as approved by tine Registrar' is not an indication that the existing regulations were not actually framed by the Registrar. Regulation 45 (2) says that "the Registrar shall have the power to add, delete, substitute or modify any of these regulations from time to time in consultation with Cadre Committee." Consultation with Cadre Committee cannot be considered to be consultation with an outside body. Cadre Committee which is closely associated with the selection process, is one of the relevant bodies that can be consulted by the Registrar for the purpose of modification, addition or deletion of the regulations. Consultation with such a Committee is not a vitiating factor. On the other hand, in our view, such a consultation process increases the efficacy of the regulations.
7. Re. 4:- According to the learned Counsel, the appellants were directly recruited to the posts of Managers, freeder posts to Class-II Cadre. In the freeder post of Manager, there are two categories of persons - direct recruits and promotees. Earmarking of 22 marks for service would prejudice the direct recruit Managers but advantageous to promotees who would be in a better position to secure more marks in viva voce. We do not find any merit in this contention. When recruitment to a post is from two sources, there cannot be any differentiation based upon the source of recruitment. Manager being the feeder post, whoever is functioning in the feeder post for the specified period is entitled to the weightage according to the length of service in that post. The weightage given under the head 'Service' is in the following terms:
"Service...........22 marks.
For each completed year of service 11/2 marks in the feeder post (subject to a maximum of 22 marks.) The service rendered in the feeder post will be reckoned upto the end of 31st December of the year prior to the year of selections. Completion of six months of service and above shall be treated as full year of service and marks shall be awarded accordingly. Fraction of less than 6 months of service will be ignored."
If there are persons working as Managers with longer service, certainly they will be entitled to more marks as per the aforesaid formula. The argument of the learned Counsel for the appellants is that "service" should be confined to regular service but not temporary or irregular service. In support of his contention, reliance is placed upon a decision of the Supreme Court in State of West Bengal v. Aghore Nathdev, . The contention is without substance. The aforesaid case arose out of a writ petition. The writ petitioners were initially appointed on ad hoc basis in violation of recruitment rules. It was ruled by the Supreme Court that such ad hoc service in violation of the rules should not enure to the benefit of the petitioners. In the present case, there is no allegation that the candidates who have been working as Managers and are eligible to compete for Class-II Posts, have rendered "ineligible service". In our view, temporary service stands on a different footing from the service rendered in a post to which a person is appointed contrary to rules. The rationale behind the aforesaid formula is that weightage should be given to those who acquired expertise and experience in the feeder post. It matters little whether that expertise or experience was gained in a regular capacity or in a temporary capacity. Earmarking of 22 marks under the head "Service" cannot be said to be on the high side. A Division Bench of this court in Writ Appeal No. 331 of 1989 and batch dated 26-12-90 has upheld the allocation of weightage of 25% for service.
8. The last contention advanced by the learned Counsel for the appellants is that it is open to the Government to grant special concessions in the matter of appointment in favour of persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and this power is specifically incorporated in Section 116-B (b). In what manner and to what extent this power has to be exercised is a policy matter and we cannot issue any specific directions in this regard.
9. For the foregoing reasons, both the writ appeals fail and accordingly they are dismissed at the admission stage.