Telangana High Court
A. Srisailam vs State Of Andhra Pradesh on 22 January, 2021
Author: M.S. Ramachandra Rao
Bench: M.S.Ramachandra Rao
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.AMARNATH GOUD
WRIT PETITION Nos.37396 of 2017 and 18559 of 2020
COMMON ORDER:(Per Hon'ble Sri Justice M.S. Ramachandra Rao) In both these Writ Petitions, the petitioners are aggrieved by their final allocation to the State of Andhra Pradesh vide Order No.1 of 2017 in FA No.A-11014/10/2014-AT(Part-2), dt.04.10.2017 issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Union of India (1st respondent in W.P.No.37396 of 2017 and 6th respondent in W.P.No.18559 of 2020) and G.O.Ms.No.133, General Administration (SR-I) Department, dt.04.10.2017 issued by the Government of Andhra Pradesh directing publication of the said Order No.1 of 2017 under the provisions of the A.P. Reorganisation Act, 2014. They seek to set aside the same and also seek a direction to the respondents to redo the exercise and allot the petitioners to the State of Telangana by following Clause 18(j) and 18(l) of the Guidelines framed by the Union of India in Proceedings F.No.27/13/2013-SRS, dt.29.10.2014 published vide G.O.Ms.312, General Administration (SR) Department, dt.30.10.2014.
2. The erstwhile composite State of Andhra Pradesh had been bifurcated into the new State of Telangana and the residuary State of ::2:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 Andhra Pradesh w.e.f. 02.06.2014 under the A.P. Reorganisation Act, 2014 (for short "the Act").
3. The A.P. Administrative Tribunal is mentioned at Serial No.141 in Schedule X to the A.P. Reorganisation Act, 2014.
4. The Department of Personnel and Training, Ministry of Personnel, PG & Pensions of the Government of India had issued Proceedings F.No.27/13/2013-SRS, dt.29.10.2014 framing Guidelines for allocation of State Government employees under the said Act and the Government of Andhra Pradesh had communicated the same vide G.O.Ms.312, General Administration (SR) Department, dt.30.10.2014.
5. A Notification No.19326-A/SR/2016 dt.13.07.2017 was issued by the Government of Andhra Pradesh through its General Administration (SR) Department dt.13.07.2017 stating emphatically that the Guidelines as approved by the Government of India vide their reference No.F.No.27/13/2013-SRS dt.29.10.2014 and published by the Government of Andhra Pradesh vide G.O.Ms.312, General Administration (SR) Department, dt.30.10.2014, would apply for the final allocation of the employees of the A.P. Administrative Tribunal.
6. The Government of India through Gazette No.650 dt.15.09.2016 notified that the A.P. Administrative Tribunal shall cease to have jurisdiction over the State of Telangana with effect from 15.09.2016 and the cases pending in the said Tribunal were ::3:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 transferred to the High Court at Hyderabad for the State of Telangana and the State of A.P. through a letter dt.01.10.2016.
7. Thereafter, the Government of Andhra Pradesh also abolished the A.P. Administrative Tribunal, and on 14.01.2020, the said abolition was gazetted by the Union of India vide Notification No.GSR 30 (E) dt.14.01.2020 which was later amended vide Notification No.886 A dt.27.02.2020 and was published vide G.O.Ms.No.24 General Administration (SPF & MC) Department dt.09.03.2020 issued by the Government of Andhra Pradesh. The facts in W.P.No.37396 of 2017
8. The petitioner in W.P.No.37396 of 2017 was appointed as a Court Master in the A.P. Administrative Tribunal in 2012.The husband of the petitioner in W.P.No.37396 of 2017 is employed in the Andhra Pradesh Wakf Tribunal, Hyderabad and she has two children who are minors. The Andhra Pradesh Wakf Tribunal, Hyderabad where the husband of the petitioner is employed is also mentioned at Serial No.134 of the X Schedule. The said petitioner had sought allotment to the State of Telangana to which she was a local candidate relying on Guideline No.18(l) of the Guidelines framed by the Union of India contained in G.O.Ms.No.312, General Administration (SR) Department, dt.30.10.2014 issued by the Government of Andhra Pradesh.
The said Guideline states:
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"l) Spouses in State cadre in Government or in State Government institutions, local bodies and those who are deemed allocated as per the Act, shall as far as practicable, be allotted to the same State, after considering options made by them and their local candidature. Spouses who are local candidates of a State shall be allocated to that State. Spouses who belong to different States may be allocated after considering their options." However, in the tentative allocation list notified vide Notification No.19326-A/SR/2016, dt.06.09.2017 issued by the General Administration (SR) Department, Government of Andhra Pradesh, she was tentatively allocated to the State of A.P. though she had opted for the State of Telangana; and though she filed objections thereto on 19.09.2017 and prayed for final allocation to the State of Telangana, vide Order No.1 of 2017 issued in F.No.A-11014/10/2014-AT (Part-2) dt.04.10.2017 she was allocated to the State of Andhra Pradesh again.
This is questioned by her in W.P.No.37396 of 2017. The facts in W.P.No.18559 of 2020
9. In W.P.No.18559 of 2020, all the petitioners are appointed in the Last Grade service in posts such as Attender/Office Subordinate in the A.P. Administrative Tribunal prior to 02.06.2014. They possess the local status of Telangana State. On the ground that they belong to BC, SC and ST communities and that they are in Class-IV/Last Grade, by placing reliance on Guideline No.18(j) of the Guidelines framed by ::5:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 the Union of India referred to above, they had given their option for allocation to the State of Telangana.
The said Guideline states:
"18(j)-Last grade employees and Light Vehicle Drivers shall be allocated on the basis of option or local candidature, as far as possible. Vacant posts and posts created subsequent to the appointed day in these categories will be reckoned, if so desired by the concerned State, for the purposes of final allotment for these employees."
However, all of them were finally allocated to the State of Andhra Pradesh vide Order No.1/2017 in FA No.A-11014/10/2014- AT(Part-2), dt.04.10.2017 issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Union of India which was published vide G.O.Ms.No.133, General Administration (SR-I) Department, dt.04.10.2017 issued by the Government of Andhra Pradesh.
This is challenged by them in W.P.No.18559 of 2020. The stand of the State of A.P.
10. As regards the petitioner in W.P.No.37396 of 2017, it is the contention of the State of A.P. that in the cadre of Court Master there are 20 posts out of which 8 posts were allocated to Telangana and 12 posts were allocated to the State of Andhra Pradesh as per the ratio of population between the States of Telangana and Andhra Pradesh; that petitioner stands last in the seniority list at Serial No.20 in the cadre; that 10 of her seniors, who were local to Telangana, had opted for Telangana against the 8 posts allotted to Telangana; so 8 of her ::6:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 seniors were adjusted to Telangana and the other 2 seniors were allotted to Andhra Pradesh as there were no posts in Telangana. It is contended that petitioner was the last in the seniority list in the cadre of Court Masters and she cannot be granted allocation to the State of Telangana since there were no posts.
According to the Government of A.P., the Guidelines framed by the Union of India would apply.
In particular, the Special Government Pleader for the State of Andhra Pradesh laid emphasis on Clause 18(f) of the said Guidelines which states:
"f) The allocation shall be done in order of seniority as available on June 01, 2014. Those who have opted, who are 'local candidates' relatable to the State to which they have opted, shall, in order of their seniority, be considered for allocation first. If allocable posts in that category remain, then, others who have opted to the State may be allocated in order of seniority. If still posts remain allocation will be made in reverse order of seniority."
According to him, in view of the low position of the petitioner in W.P.No.37396 of 2017 in the seniority list in the cadre of Court Master, she was rightly allocated to the State of Andhra Pradesh notwithstanding her option for allocation to the State of Telangana because 8 of the persons senior to her are local candidates of the State of Telangana, and they had been rightly allocated to the State of Telangana in the 8 posts allotted to the said State in the bifurcation.
Coming to the claim of the petitioners in W.P.No.18559 of 2020, it is his contention that the cadre strength in the category of ::7:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 Office Subordinates notified was 37; that 36 were filled and 1 was vacant as on 02.06.2014; out of these posts, 21 filled and 1 vacant post was allotted to the State of A.P. and the remaining 15 filled posts were allotted to the Telangana State. It is contended that of the 36 allocable employees, 28 were local to Telangana State and 6 were local to Andhra Pradesh and the remaining 2 were non-locals to both States.
It is contended that among the 28 locals to Telangana State, 27 opted to the State of Telangana and the other did not exercise option; out of the said 27 local optees to Telangana State, 6 claimed preferential allotment to Telangana State being widowed female employees under Para 18(m) of the Guidelines; these 6 preferential claims were considered first, and then 9 local optees to Telangana State who were seniors to the petitioners had been considered for allocation tentatively to Telangana State as per their option with reference to their seniority against the 15 posts allocated to Telangana State. It is contended that as there were no more posts available and there were excess options for Telangana State, petitioners could not be considered for tentative allotment to Telangana State as per their option; and they were therefore considered for allotment to State of A.P. in the reverse order of seniority under Para 18(f) of the Guidelines.
In regard to Para 18(j) of the Guidelines, it is contended that the said Para is only an indicative guideline and is not mandatory and that allocation of Last Grade employees was made keeping in view the ::8:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 provision contained in Para 18(j) to the extent possible. It is further contended that one cannot claim allocation as per Para 18(j) as of a right and it is left to the authority concerned to decide and consider keeping in view other aspects, such as seniority, etc. It is also contended that there are totally (635) Last Grade Service employees in all the Departments put together who are local optees to Telangana State, but they could not be considered for allocation to Telangana State as per their option; and that they were considered for allotment to Andhra Pradesh State against their options under Para 18(f) of the guidelines due to non-availability of posts in Telangana State for their adjustment.
The stand of the State of Telangana :
11. In regard to the petitioner in WP.No.37396 of 2017, it is admitted that the petitioner had opted for the State of Telangana vide option form submitted on 24.07.2017, but it is contended that since the petitioner was junior most and there were no vacancies available to accommodate the petitioner in the State of Telangana, in accordance with para 18(f) of the Guidelines framed by the Union of India, she was allocated to the State of Andhra Pradesh. It is further stated that the petitioner's spouse is working in the A.P. Waqf Tribunal at Hyderabad but the employees of the said institution have not been allocated as yet.
As regards the petitioners in WP.No.18559 of 2020, it is stated that the Government of India through Gazette No.650 dt.15.09.2016 ::9:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 notified that the A.P. Administrative Tribunal shall cease to have jurisdiction over the State of Telangana with effect from 15.09.2016 and the cases pending in the said Tribunal were transferred to the High Court at Hyderabad for the State of Telangana and the State of A.P. through a letter dt.01.10.2016. It is further stated that the Chairman, A.P. Administrative Tribunal, relieved 71 employees of the Tribunal, who were allocated to the State of Telangana with a direction to report to the Government of Telangana on 01.11.2017 and accordingly, they submitted joining report before the Government of Telangana; that on the request of the Registrar General, High Court of Judicature at Hyderabad, the Government of Telangana had deputed all the 71 employees of the Tribunal who are allocated to the Telangana State to the said High Court till further orders vide G.O.Rt.No.2291, GA(SPF) Department dt.02.11.2017 and G.O.Rt.No.2343, GA(SPF) Department dt.10.11.2017.
Thus, the State of Telangana supported the stand of the State of A.P. in regard to the allocation of the petitioners to the State of A.P. in spite of the fact that the petitioners had all opted for the State of Telangana under clause 18(j) and 18(l) of the Guidelines framed by the Union of India.
The stand of the Union of India:
12. It is the contention of the Union of India that its role in issuing the final allocation order dt.04.10.2017 is only secondary and that it was issued only after receipt of proposal of the Governments of both ::10:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 States in this regard, after duly considering the representations of all the employees.
It is stated that since the Tribunal is listed in Schedule-X of the Act, the exercise of allocation of staff has to be carried out by the Tribunal only in terms of Section 82 of the Act and that the Union of India intervened in view of the direction given by the High Court in W.P.No.36777 of 2016 and called a meeting with the Officers of both the State Governments to advise them to initiate action for allocation of staff of the Tribunal as per the principles indicated by the Kamalanathan Committee.
It is stated that the representation of the petitioner in WP.No.37396 of 2017 for allocation to the State of Telangana was rejected on the basis of comments furnished by the General Administration (State Reorganization) Department which stated that spouses working in the A.P, Waqf Tribunal are not eligible for preferential allocation as per the Guidelines in Circular Memo No.19184/SR-I/A1/2014-17 dt.25.02.2015 issued by the General Administration Department of both States and that the Committee had also stated that she is junior in the cadre and excess options had been exercised for Telangana State.
As regards the petitioners in WP.No.18559 of 2020, it is stated that the Committee had rejected request of the petitioners therein for allocation to the State of Telangana on the basis of the following ::11:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 comments of the General Administration (State Reorganization) Department:
"There are 15 posts in TS. 10 employees who are senior to him, local to TS have opted tots and allotted to TS. In 5 cases the employees whoa re local to TS and opted to TS on preferential ground that they lost their spouses and allotted to TS. There are no posts to consider his request.
The committee in its recommendations stated the following:
"Rejected/No action required. Junior in the cadre and excess option for TS.""
Consideration by the Court:
13. From the facts narrated above, it is clear that the AP Administrative Tribunal was located at Hyderabad as on 02.06.2014, the date on which the composite State of Andhra Pradesh was bifurcated into the new State of Telangana and the residuary State of Andhra Pradesh pursuant to the A.P. Reorganization Act, 2014.
14. A WP.No.36777 of 2016 had been filed by one K.S.Srinivas in the High Court at Hyderabad for the State of Telangana and the State of Andhra Pradesh with regard to allocation of officers and employees of the said Tribunal.
15. On 27.12.2016, the High Court had disposed of the Writ Petition by directing the Government of India to allocate the officers and staff of the A.P. Administrative Tribunal in the ratio 58.32:41.68 in terms of section 2(h) of the Act between the State of A.P. and the State of Telangana.
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16. The Secretary, Department of Personnel and Training, Government of India held a meeting with representatives of both Governments on 07.04.2017 at New Delhi and requested them to start the process of allocation as per the Kamalanathan Committee's Guidelines, which are followed for the allocation of State Cadre employees between both States.
17. Thereafter, Notification No.19326-A/SR/2016 dt.13.07.2017 was issued by the Government of Andhra Pradesh through its General Administration (SR) Department dt.13.07.2017 stating emphatically that the Guidelines as approved by the Government of India vide their reference No.F.No.27/13/2013-SRS dt.29.10.2014 and published by the Government of Andhra Pradesh vide G.O.Ms.312, General Administration (SR) Department, dt.30.10.2014, would apply for the final allocation of the employees of the A.P. Administrative Tribunal.
18. The A.P. Administrative Tribunal is a legal entity specified in Schedule-X to the Act.
19. Therefore, the Union of India admittedly has only the role of making final allocation as per the proposals of the Governments of both States in this regard, after duly considering the representations of all the employees. The exercise of allocation of staff has to be carried out by the Tribunal only in terms of Section 82 of the Act.
20. The petitioner in W.P.37396 of 2017 had sought allocation as per option from dt.24.07.2017 to the State of Telangana as she was ::13:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 having nativity of the State of Telangana, and was working as Court Master in the A.P. Administrative Tribunal at Hyderabad, and her husband Sk.Shameemuddien was employed in the Andhra Pradesh Waqf Tribunal, Hyderabad, which is also a Schedule-X Institution. She had relied on clause 18(l) of the Guidelines framed by the Union of India.
21. Likewise, the petitioners in WP.No.18559 of 2020 had contended that they were appointed as Last Grade/Class IV employees in the A.P. Administrative Tribunal at Hyderabad, that they were having nativity of the State of Telangana, and as per clause 18(j) of the Guidelines they should be allocated to the State of Telangana.
22. However, by applying clause 18(f) of the Guidelines, the Union of India, on the recommendations of both the State Governments, allocated them finally under the impugned order No.1/2017 in F.No.A-11014/10/2014-AT(part-II) dt.04.10.2017 notified vide G.O.Ms.No.133 General Administration (SR.I) Department dt.04.10.2017.
23. It is the stand of all the respondents that seniors to the petitioners had chosen to opt for the State of Telangana and consequently the available allocated posts to the said State had been filled up by such persons, that there were no other vacancies wherein the petitioners could be accommodated, and so by applying the principle of reverse order of seniority in clause 18(f), they were allocated to the State of Andhra Pradesh.
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24. We shall once again extract clauses 18(f), (j) & (l) of the guidelines framed by the Union of India published in G.O.Ms.No.312 General Administration (SR) Department dt.30.10.2014.
"18(f)- The allocation shall be done in order of seniority as available on June 01, 2014. Those who have opted, who are 'local candidates' relatable to the State to which they have opted, shall, in order of their seniority, be considered for allocation first. If allocable posts in that category remain, then, others who have opted to the State may be allocated in order of seniority. If still posts remain allocation will be made in reverse order of seniority.
18(j)-Last grade employees and Light Vehicle Drivers shall be allocated on the basis of option or local candidature, as far as possible. Vacant posts and posts created subsequent to the appointed day in these categories will be reckoned, if so desired by the concerned State, for the purposes of final allotment for these employees.
18(l)- Spouses in State cadre in Government or in State Government institutions, local bodies and those who are deemed allocated as per the Act, shall as far as practicable, be allotted to the same State, after considering options made by them and their local candidature. Spouses who are local candidates of a State shall be allocated to that State. Spouses who belong to different States may be allocated after considering their options."
25. The petitioners contend that clauses 18(j) & 18(l) are in the nature of exceptions to clause 18(f) because they deal with vulnerable categories such as spouses and Class-IV/Last Grade employees, who require special consideration and that if only clause 18(f) is applied, then there would be no situation where clauses 18(j) and 18(l), and similar clauses like 18(e) and 18(i), can be applied.
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They also point out that the words "as far as practicable"/ "as far as possible", if they are preceded by the word "shall", it implies that the respondents should give effect to the preferential allotment to spouses/Class-IV employees as per their option, unless it is impossible to do so.
They place reliance on the decisions of the Division Bench of this Court in Osmania University v. V.S.Muthurangam & Ors.1 which was affirmed by the Supreme Court in Osmania University v. V.S.Muthurangam & Ors2.
They contend that in Dr. S. Shobha Rani v. State Reorganization Department3 and Uzma-Nikhath v. Government of India4 and P.Rajyalakshmi v. Union of India5 it was held that the basic principle underlying the guidelines framed by the Government of India for allocation of staff between the two States is to keep employed spouses together who would otherwise be separated owing to the allocation undertaken pursuant to the bifurcation of the erstwhile State of Andhra Pradesh; keeping the spirit and intent underlying this principle, the Guidelines should be implemented; and that the import and intent of bifurcation of the erstwhile State of Andhra Pradesh is not to breakup marriages.
1 MANU/AP/0397/1989 = 1989(5) SLR 411(DB) 2 1997(10) SCC 741 3 Order dt.27.02.2017 in WP.No.23775 of 2016 (DB) = 2017 (3) A.L.D. 207 (D.B.) 4 Order dt.28.01.2019 in WP(TR) No.5680 of 2017(DB) 5 Order dt.06.02.2019 in WP.No.42628 of 2017 (DB) ::16:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 They further contend that Last Grade employees have also been singled out in clause 18(j) for preferential treatment in order not to cause inconvenience to them keeping in mind the difficulties which an allocation to a different State would visit such employees, who on their meager salary, would have to support some members of the family in the State of Telangana, when allocated to the State of Andhra Pradesh.
26. We find considerable force in the above submissions of the counsel for the petitioners.
27. According to Clause 18(f) of the Guidelines framed by the Government of India, allocation has to be done in the order of seniority as available on 01.06.2014 and those who have opted, who are 'local candidates' relatable to the State to which they have opted, shall, in order of their seniority, be considered for allocation first. If allocable posts in that category remain, then, others who have opted to the State may be allocated in order of seniority. If still posts remain allocation will be made in the reverse order of seniority.
28. Thus, if the above principle is given overriding effect over other clauses contained in the guidelines, allocation would only be made according to the options of the seniors in a particular category if they are local candidates relatable to the State to which they have opted. Therefore, seniors in a particular category would get the State of their choice if they are local candidates relatable to the said State and would fill up all allocable posts available in that particular State.
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Consequently, the juniors in a particular category will not be allotted to the State of their choice even if they are local candidates relatable to the said State and even if they claim preferential allotment invoking Clauses 18(j), (k), (l) and (m) because in every case the 'principle of seniority' would override these clauses.
29. Even clauses 18(k) (which provides that spouse of an All India Service Officer who belongs to a State Cadre or is an employee of the State Government Institutions shall be allocated, where so desired by the spouse, to the State to which the All India Service Officer is allocated) and clause 18(m) (which deal with cases of widowed female employees, handicapped persons with more than 60% disability, and employees/their spouses or children facing serious medical hardship, to be allocated on priority on the basis of option) fall in the same category as clause 18(j) and 18(l).
30. Therefore, Clause 18(f) cannot be given overriding effect over Clauses 18(j), (k), (l) and (m) of the guidelines.
31. In our opinion, Clauses 18(j), (k), (l) and (m) of the guidelines ought to be treated as exceptions to Clause 18(f) because otherwise they would be practically rendered otiose and defeat the very purpose for which they were included in the guidelines, i.e., to allow vulnerable sections of employees such as spouses of Government employees, last Grade employees, widowed female employees, handicapped persons and persons facing serious medical hardship to be given priority in allocation to the State of their choice.
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32. We shall presently also point out that judicial precedents have interpreted the term "shall as far as practicable" and "shall as far as possible" in a provision of law to mean that unless impossible, the benefit in the said provision of law cannot be denied.
33. In clause 18(j), it is stated that Last Grade employees and light vehicle drivers shall be allocated on the basis of option or local candidature, as far as possible.
In clause 18(l), it is stated that spouses in State Cadre in Government or in State Government Institutions, Local Bodies and those who are deemed allocated as per the Act, shall as far as practicable, be allotted to the same State, after considering options made by them and their local candidature.
34. In Osmania University (1 supra), the question was whether non-teaching staff working in the University were liable to be retired at the age of 58 or 60 years. Section 38 of the Osmania University Act,1959 stated that every salaried officer and teacher of the University shall be appointed under a written contract, and the conditions of service relating to them, shall as far as possible, be uniform except in respect of salaries payable to them. The Court held that non-teaching staff had been appointed in the University only under the said provision of law, and the word 'salaried officer' means every officer who receives salary from the University and covers the non-teaching staff as well. It accepted the contentions of the non- teaching staff that the words 'as far as possible' were preceded by the ::19:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 word 'shall' which means that the service conditions shall be the same except when it is impossible; and it is for the University to explain the circumstances, which made it impossible, to prescribe uniform conditions of service. It held that even if the duties performed by the teaching and non-teaching staff are different, the said factor is not relevant and cannot afford a reason to deviate from the uniform policy contemplated by Section 38 of the Act; that if fixation of age of superannuation of teachers at 60 years was done pursuant to a recommendation of the University Grants Commission, the non- teaching staff should also be extended the said benefit and be allowed to retire at the age of 60. It observed that no discrimination should be shown to them and unless there is a reasonable classification, Article 14 would be violated.
35. This decision was affirmed in Osmania University (2 supra) by the Supreme Court. The Supreme Court held that the University will be justified within the ambit of Section 38 (1) to introduce different conditions of service for different categories of employees if such different conditions become necessary for the exigency of administration and if it is otherwise impracticable to bring uniformity in the conditions of service of different categories of employees. For the same reason, it is permissible for the University to introduce the age of superannuation differently for different categories of employees, if introduction of such different age of superannuation can be justified on the anvil of felt need of the administration. But if ::20:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 Uniform conditions of service for teaching and non-teaching staff of the University is not otherwise impracticable, the University is under an obligation to maintain such uniformity because of the mandate of Section 38(1) of the Act. It held that in the said case it did not find that it is not at all practicable for the University to maintain the clarity in the age of superannuation of both teaching and non- teaching staff.
36. In our opinion, the words 'as far as possible' occurring in Clause 18(j) and the words 'as far as practicable' occurring in Clause 18(l) of the guidelines ought to be similarly interpreted and the benefit thereunder cannot be routinely denied quoting Clause 18(f) when it is possible (and not impossible/impracticable) to give benefit of the said Clauses to junior employees by treating Clauses 18(j) and 18(l) as exceptions to Clause 18(f). It cannot be said that lack of vacant allocable posts is a reason to deny the benefit of Clauses 18(j) and 18(l) when such allocable posts are all filled up applying Clause 18(f).
37. In relation to 'spouse category' cases, a Division Bench of this Court in case of Poranki Rajyalakshmi (5 supra), who was also a Court Master in the A.P. Administrative Tribunal, at Hyderabad and who was denied allocation to the State of Telangana even though her spouse was also employed in an A.P. Model School and had been allotted to Telangana after bifurcation, held that the respondents cannot take a hypertechnical view of the matter in considering the guidelines issued for preferential allocation in cases of spouses since ::21:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 the object is to ensure that the spouses should be together. It held that the plea of the respondents that the husband of petitioner therein was not a Government servant and so she cannot be granted allocation to the State where her husband is employed, cannot be countenanced since the Model Schools were also run and funded by the State Government. Admittedly, this order had been implemented and she was allocated to the State of Telangana on account of the order passed in the said Writ Petition.
38. In Dr. S. Shoba Rani (3 supra), a Division Bench of this Court interpreted Clause 18(l) as under :
"8. The basic principle underlying these guidelines is therefore to protect and keep together employed spouses who would otherwise be separated owing to the allocation undertaken pursuant to the bifurcation of the erstwhile State of Andhra Pradesh. Keeping the spirit and intent underlying this principle, the guidelines should be implemented. Merely because Clause (1) does not speak of employees working in Central Government Public Sector Undertakings, it does not mean that spouses of such employees, who are working in the State cadre, are not to be accommodated where they are working. Clause (1) states in no uncertain terms that allocation shall, as far as practicable, be made so as to keep the spouses together. The import and intent of bifurcation of the erstwhile State of Andhra Pradesh is not to break up marriages. The authorities therefore have to conceive, formulate and implement the guidelines keeping this in mind. Any shortfall in the guidelines in this regard cannot be taken literally to mean that spouses, whose cases do not fall within the four corners of the instructions as set out therein, are to be left out in the cold and must suffer marital separation."( emphasis supplied) ::22:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020
39. The above principle was applied in P. Damodhar vs. T.S. Industrial Development Corporation6, and it was held that the basic principle underlying the guidelines framed by the Government of India is to protect and keep together employed spouses who would otherwise be separated owing to the allocation undertaken pursuant to the bifurcation of the erstwhile State of Andhra Pradesh.
40. Coming to petitioners in Writ Petition No.18559 of 2020, admittedly they are employees in the last Grade service of the A.P. Administrative Tribunal. Their pay and emoluments would not be much and it would cause grave hardship to them and to their families if they are allocated to the State of Andhra Pradesh because they would not have the financial capacity to move with their families to the State of Andhra Pradesh, and it would be difficult for them also to maintain their families in the State of Telangana while also taking care of their needs in the State of Andhra Pradesh where they would get allocated. That was why preferential allotment was contemplated and provided for this vulnerable section in Clause 18(j) of the Guidelines.
41. In fact, the Administrative Tribunal has ceased to be in existence in both the States of Andhra Pradesh and Telangana; and employees of the Administrative Tribunal allocated to the State of Telangana, have admittedly been made over initially to the High Court for the State of Telangana, but later by a Resolution 6 2020 (4) A.L.D. 388 (D.B.) ::23:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 dt.25.1.2019 of the Administrative Committee of the Telangana High Court, they were relieved and asked to report to the Principal secretary to the Government, General Administration Department (Political) of the State of Telangana and are believed to be accommodated in various departments by the said State.
42. In a similar manner, if the petitioners in Writ Petition No.18559 of 2020 are allocated to the State of Telangana, the said State can accommodate them and utilize their services in its various Government Departments or in the High Court for the State of Telangana.
43. The later part of Clause 18(j) states that vacant posts and posts created subsequent to the appointed day in the categories of last Grade employees and Light-Vehicular Drivers will be reckoned, if so desired by the concerned State, for the purpose of final allotment of these employees.
44. This Court can take judicial notice of a recent policy decision taken at the highest level in the State of Telangana to identify the vacancies in all Government Departments and to fill up the same by following the relevant rules. Nothing prevents the State of Telangana to accommodate the petitioners in Writ Petition No.18559 of 2020 in some such vacancies taking advantage of the later part of Clause 18(j).
45. The Special G.P. for the State of A.P. however relied on the decision of the Supreme Court in Bank of India v. Jagjit Singh ::24:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 Mehta7 wherein transfer policy of an Officer in the said Bank came up for consideration and it was observed that ordinarily and as far as practicable, a husband and wife who are both employed should be posted at the same station even if their employers be different, but it was stated that it would not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account, while making the decision in accordance with the administrative needs. This decision is distinguishable because it dealt with a case of transfer and not a situation of allocation to a particular State post-bifurcation of a Composite State into two States.
46. Reliance is also placed on the decision of the Supreme Court in Indradeo Paswan v. Union of India and Others8 by the Special Government Pleader for the State of A.P. to contend that allocation should not be interfered with on individual grievances relating to non- acceptance of options exercised, unless clear illegality or wednesbury unreasonableness is established.
In our opinion, in the instant cases, there is clear illegality because the guidelines framed by the Union of India under Section 77(2) of the Act have been adopted by both State Governments in regard to bifurcation / allocation of the Officers and employees of the erstwhile A.P. Administrative Tribunal governed by Section 82; hence, they have a statutory flavour; and contrary to the guidelines 7 1992(1) SCC 306 8 2007(7) SCC 250 ::25:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 framed by the Union of India, allocation of the petitioners has been affected causing them grave hardship.
Also, as held in Ramana Dayaram Shetty v. International Airport Authority9, it would be violative of Article 14 of the Constitution if the respondents are allowed to ignore / misinterpret the very guidelines for allocation framed by the Government of India and cause hardship to vulnerable categories of employees like the petitioners.
47. Accordingly, we hold that the final allocation of petitioners made vide Order No.1 of 2017 dt.04.10.2017 by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India in F.No.A-11014 / 10 / 2014 - AT (Part 2) to the State of Andhra Pradesh cannot be sustained, and the petitioners are entitled to be allocated to the State of Telangana in view of Clauses 18(j) and 18(l) of the Guidelines framed by the Government of India.
48. For the aforesaid reasons,
(a) Writ Petition No.37396 of 2017 and Writ Petition No.18559 of 2020 are both allowed;
(b) the final allocation of petitioners made vide Order No.1 of 2017 dt.04.10.2017 by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and 9 1979(3) SCC 489 ::26:: MSR,J & TA,J wp_37396_2017 & wp_18559_2020 Pensions, Government of India in F.No.A-11014 / 10 / 2014 - AT (Part 2) to the State of Andhra Pradesh is set aside, and the petitioners are held entitled to be allocated to the State of Telangana in view of Clauses 18(j) and 18(l) of the Guidelines framed by the Government of India; and
(c) the respondents shall take all necessary steps to relieve the petitioners from their current employment / place of work in the State of Andhra Pradesh within two (02) weeks from the date of receipt of copy of the order and allocate them to the State of Telangana which State shall give appropriate posting orders to the petitioners in the departments of the said State within 4 weeks thereafter. No costs.
49. Consequently, miscellaneous petitions, pending if any, shall stand closed.
____________________________ M.S. RAMACHANDRA RAO, J ______________________ T.AMARNATH GOUD, J Date: 22.01.2021 Svv/Gra/Ndr