Andhra HC (Pre-Telangana)
G. Anantha Reddy vs Andhra Pradesh Administrative ... on 22 November, 2001
Equivalent citations: 2002(1)ALD4, 2002(1)ALT279
Bench: S.B. Sinha, Goda Raghuram
JUDGMENT Sinha, C.J.
1. All these writ petitions arising out of common order of the A.P. Administrative Tribunal in O.A. No.2139 of 2001 and batch-dated 28.6.2001 were taken up for hearing together and are being disposed of by this common judgment.
ISSUE
2. The core issue involved in these writ petitions is whether the transfer of the Inspectors of police to the unit of Hyderabad City Police from other zones or the transfer of Inspectors of Police from one zone to another, as the case may be, made on administrative grounds and in public interest was on permanent basis and consequently they are entitled to take their respective seniority in the units to which they were transferred and whether they can be repatriated back to their parent zones?
Preview of the relevant provisions of the Presidential order and consequential orders issued by the Government:
3. Pursuant to Six Point Formula agreed upon by various political leaders of the State, by Constitution 32nd Amendment Act, the Parliament introduced Article 371-D for the State of Andhra Pradesh with the object to ensure equitable opportunities in the matter of Public Employment for persons coming from various parts of the State. In exercise of the powers conferred by Clauses (1) and (2) of Article 371-D of the Constitution of India, the President issued the order known as Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment), Order 1975 (for short 'the Presidential Order'). Para 3 of the Order provides for organisation of Local Cadres. Para 3(2) provides that the posts belonging to the category of Junior Assistants and to each of the other categories equivalent to, or lower than that of a Junior Assistant in each department in each district shall be organised into separate cadre. Under sub-para (3), the posts belonging to each non-gazetted category, other than those referred to in sub-paragraph (2), in each department in each zone shall be organised into a separate cadre. As per Para 3(4), the posts belonging to each specified gazetted category in each department in each zone shall be organised into a separate cadre. As per Third Schedule appended to the Order, Inspectors of Police in Police Department is a specified gazetted category (S.No.51). According to Para 2(1)(m), zone means a zone specified in the Second Schedule comprising the territories mentioned therein. As per the Second Schedule, Hyderabad comes under Zone VI which consists of Hyderabad, Rangareddy, Nizamabad, Mahboobnagar, Medak and Nalgonda districts. Under the Second Schedule, six zones have been created in the State for the purpose of the Presidential Order. Para 6 deals with local areas. As per Para 6(2)(ii), the posts of Inspectors of Police shall be regarded as a zonal post.
4. Under Sub-paragraph (6) of Para 3 notwithstanding anything contained in sub-paragraphs (2), (3), (4) and (5), the Central Government was empowered to notify the departments in which and the categories of posts for which a separate cadre has to be organised for the City of Hyderabad and on such notification, the posts belonging to each such category in each such department in the City of Hyderabad (other than those concerned with the administration of areas falling outside the said City) shall be organised into a separate cadre and the posts so organised shall be excluded from the other cadres, organised in pursuance of para 3 or constituted otherwise and comprising of posts belonging to that category in that department. The Central Government in G.S.R.528(E) dated 18.10.1975 issued notification under Para 3(6) and the Police Department is not part of such notification. Therefore, the Police Department of Hyderabad City is part of Zone VI only and no separate city cadre has been constituted for any of the categories in the Department. Para 4 of the Order deals with allotment of persons.
5. Now, we may refer to Paras 5 'and 14 of the Order which are relevant for our purpose. Para 5, which deals with Local Cadres and transfer of persons, reads thus:
5. Local cadres and transfer of persons :--(1) Each part of the State for which a local cadre has been organised in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment discharge, seniority, promotion and transfer, and such other matters as may be specified by the State Government, in respect of that category of posts.
(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;
(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 on where such transfer is otherwise considered necessary in the public interest; and
(d) the transfer of a person from one local cadre to another local cadre on a reciprocal basis, subject to the condition that the person so transferred shall be assigned seniority in the latter cadre with reference to the date of his transfer to that cadre.
6. Under Para 5(1) for the purpose of recruitment, appointment, discharge, seniority, promotion and transfer and such other matters as may be specified by the State Government, each part of the State for which a local cadre has been organised is the Unit. The category of Inspectors of Police is a zonal post. Therefore, zone is the unit for the matters mentioned in para 5(1).
7. Under Para 14 of the Order, certain Establishments and posts are saved or exempted from the application of the Presidential Order. Para 14 (f), which is relevant for the purpose of this case, reads thus:
Saving :--Nothing in this Order shall apply to-
xxx
(f) any post of Police Officer as defined in Clause (b) of Section 3 of the Hyderabad City Police Act, 1348 F.
8. The President by various notifications specified the Special Offices or Establishments, Major Development Projects and State Level Offices or Institutions for the purpose of Para 14. In the Police Department, Police Training College, Ananthapur, Deputy Inspector General of Police (Intelligence), Deputy Inspector General of Police (Railways, Crime and Training), Police Transport Organisation, office or the Director police Communication, Office of the Forensic Science Laboratory are included in the notification. By operation of Para 14(f), the posts of Police Officers defined in Hyderabad City Police Act are saved from the provisions of the Presidential order.
9. Ascertained cadre strength, allotment of persons under Para 4 and unit of appointment are, therefore, basic requirements for ensuring the object underlined under the Presidential Order.
10. Clause (10) of Article 371-D provides that the provisions of the Article and of any order made by the president thereunder shall have effect notwithstanding anything in any other provision of the Constitution or any other law for the time being in force. Therefore, the Presidential Order prevails over any other law existing or made in future.
11. Sub-section (b) of Section 3 of the Hyderabad City Police Act, 1348 F defines "Police Officer" to mean every member of the City Police Force appointed under the said Act and shall also include the Commissioner of City Police, Hyderabad, Deputy or Assistant Commissioner of Police. Section 4 of the Hyderabad City Police Act, which deals with Organisation of Police, reads thus:
Organisation 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.
12. The State enacted an Act called the Andhra Pradesh Members of Police Force (Regulation of Transfers) Act, 1985 (Act 9 of 1985) (for short 'the Act, 1985') to regulate the transfer of persons appointed to Police Force in the State of Andhra Pradesh. 'Police Force' has been defined under subsection (b) of Section 2 of the said Act to mean 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.
13. Section 3, which deals with regulation of transfer read thus:
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.
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.
14. Section 4 empowers the Government to make rules for carrying out the purpose of the said Act.
15. The State in exercise of the powers conferred under sub-paragraph (2) of Paragraph 5 of the Presidential Order read with Sub-section (2) of Section 3 and subsection (1) of Section 4 of the Act, 1985 issued rules in G.O. Ms. No.288, Home (Police-C) Department dated 6.5.1986 called the 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. The rules shall apply to every member of the Police force from the rank of Police Constable to the rank of Inspector and of equivalent ranks working in various police organisations. In terms of entry No.l of the table under Rule 2, for all ranks in Police Department, the competent authority to effect transfer is Director General and Inspector General of police or by an authority authorised by him.
16. Rule 3 which speaks of seniority provides Seniority :--The transfers being on administrative grounds and in public interest, the transferees will take their respective seniority in the Units to which they are transferred.
Under Rule 4 of the said Rules, the appointing authority for the transferees will be the same as that prescribed in the concerned Special Rules relating to the Unit to which they are transferred. Subsequent to the issuance of the Act, 1985 and the Rules, numbers of persons working in the category of Inspectors of Police were transferred from one zone to another on administrative grounds including the Hyderabad City. Such transfer orders did mention that the seniority of such transferees would be maintained in the range to which they were transferred.
17. The State Government made several provisions under Para 5(2Xc) of the Presidential Order. In G.O.Ms.No.374 GAD (SPF.A) Department dated 20.5.1977, it was provided that no provision for inter-local cadre transfers need be made in any special or ad hoc rules and that such transfers will be permitted only under the circumstances stipulated in Para 5(2)(c).
In G.O.Ms.No.569 GAD dated 22.8.1977 an ad hoc rule was issued to the following effect:
Notwithstanding anything in the A.P. State and Subordinate Service Rules or the Special or Adhoc rules transfer of a person, holding post in a category organised into local cadre, under para 3 of the A.P. Public employment (Organisation of Local Cadres and Regulation of Direct recruitment) Order, 1975 as amended from one local cadre to another shall be made by the Government where no qualified or suitable person is available in the latter cadre or where such transfer is otherwise considered necessary in the public interest.
18. To give effect to Para 5(2Xd) which was inserted by G.O.Ms.No.34, GAD dated 24.1.1981, the Government in G.O. Ms. No.539 GAD dated 1.10.1981 issued the amendment to the above ad hoc rule as under:
Notwithstanding anything in the A.P. State and Subordinate Service Rules, or the Special or the ad hoc rules, transfer of a person holding post in a category organised into local cadres, under paragraph 3 of the A.P. Public Employment (Organisation of local .Cadres and Regulation of Direct Recruitment) Order, 1975, as amended from one local cadre to another may be made by the Government.
(a) Against a vacancy where no qualified or suitable person is available in the latter cadre or where such transfer is otherwise considered necessary in the public interest; and
(b) on reciprocal basis, subject to the condition that transfers should be assigned seniority with reference to the date of transfer in the cadre to which he is transferred.
BACKGROUND OF LITIGATION:
19. It appears that consequent to transfer of Inspectors of Police to Hyderabad City Police from other zones, litigation had ensued before the Andhra Pradesh Administrative Tribunal challenging the validity of the Act, 1985. The Police Officers working in the Hyderabad City Police questioned the orders of transfer of Police Officers from other zonal cadres to the posts in the Hyderabad City Police. A Full Bench of the Tribunal in O.A.Nos.22622 to 635 of 1990 and batch of cases considered the validity of the Act and the Rules.
20. The Tribunal on a consideration of the various provisions of the Presidential Order and the ad hoc rules issued by the Government was of the view that the transfers of non-gazetted officers or the first level gazetted officers occupying the posts saved by Para 14 may be made in public interest and in the interests of the administration but at the same time, such transfers cannot be made as a punishment by posting the persons to distant places or to effect their future careers like promotion etc. Referring to Entry 1 of Rule 2 of the Rules, the Tribunal observed:
It does not make any distinction between the posts organised in zonal cadres or covered by the Presidential Order or those saved by the Presidential Order by Para 14. Such a provision is not contemplated by Para 5(2) and is inconsistent with the same.
The Tribunal also observed:
the table under Rule 2 does not Indicate separately the post of a police officer as defined in the Hyderabad City Police Act which is saved by the Presidential Order. A transfer of such an officer to another post covered by the Presidential order will not be permissible under the Act or the Rules. Rule 2 or any other rule does not refer to various clauses of Para 5(2), which has to be kept in view for making a transfer with reference to each of the clauses.
The Tribunal further observed Rule 3 regarding seniority states that a transfer could be made in public interest and therefore Rule 2 extracted above merely states that the transfers being on administrative grounds and in public interest the transferees will take their respective seniority in the units to which they are transferred. The rules do not restrict the power of transfer only in public interest or on administrative grounds. No guidelines are laid down for the subordinate Officers to make such transfer or dealt with which are the areas, which will answer the requirements of public interest or administrative grounds. In respect of the posts covered by the presidential Order, the public interest is a ground only under para 5(2). The ad hoc rule framed under 309 reserves the power in the Government alone. By the impugned rules, the power is not only delegated to the Head of the Department and various Officers but it can be further delegated by the Head of the Department to any one else. The words 'public interest' and 'administrative grounds' in Rule 3, therefore, do not lay down any guidelines or put a fetter on the officers to transfer only in public interest or on administrative grounds.
21. It was further held that provision made under Para 5(2) cannot be inconsistent with Clauses (a) to (d) of Para 5(2). However, the Tribunal did not examine the scope of various clauses under Para 5(2) or how the posts under 14(1) are to be dealt with on the ground the rules do not satisfy the requirement of a provision to be made under Para 5(2)(c). The Tribunal also held:
We would, therefore, like to point out to the instructions issued in G.O. P. No.728, GAD dated 1.11.1975 regarding determination of cadre strength of each local cadre by taking into account the proportionate number of posts in Office or establishments saved from the Presidential Order. This was with an idea that the posts in such office and establishments would generally be filled upon tenure basis by drawing persons from various zonal cadres on equitable basis to achieve the object of Article 371-D. Probably this may also have to be kept in view while making a provision under 5(2).
Finally, the Tribunal summed up the conclusions as under:
(a) The Act and Rules do not violate Presidential Order insofar 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 the persons included in and 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 mat we have examined the question of transfer from the city police to another local cadre on a permanent basis. We have not examined transfers to police officers bona fide in public interest in exigencies of services for short periods without effecting their continuance and position in their local cadre or effecting then seniority in the local cadre to which they are so transferred or levelled by the Head of Department viz.. DGP of Police.
22. Therefore, according to the Tribunal no transfer from the inter-cadre posts to the posts saved under Para 14 or vice versa is permissible unless a provision is made by the Government under Para 5(2) and the rules do not satisfy the requirement of a provision to that effect.
23. Pursuant to the judgment of the Tribunal, the Government issued G.O. Ms. No.349 Home (Police.C) Department dated 15.12.1997 the relevant portion of which reads thus:
The Government of India and the Director General and Inspector General of Police, Andhra Pradesh Hyderabad were consulted in the matter.
The Director General and Inspector General of Police, Andhra Pradesh, Hyderabad has suggested that the table in G.O. Ms. No.288, Home Department, dated 6.5.1986 has to be suitably changed and para 14 of the Presidential Order amended suitably in order to effect the transfers of police officers and men in public interest.
The Government after careful examination of the entire matter direct that the transfers of Police personnel from one local cadre to another local cadre be permitted only for a limited period without conferring any right to seniority in the local cadre to which, the individual is transferred even though the said transfer is on administrative grounds. Such transfer orders have to be issued by the Government duly indicating the reasons in each case in order to justify that the transfer is in public interest.
24. Pursuant to the said G.O. the Director General and Inspector General of Police sent proposals to the Government to repatriate all the officers who are working in other zones and the Government issued orders in G.O. Rt. No.2424 dated 25.11.1998 repatriating nine officers to their respective parent zones. Consequential repatriation orders were also issued by the authorities concerned.
25. The validity of G.O. Ms. No.349 and G.O. Rt. No.2424 was the subject-matter of challenge before the Tribunal.
FACTS:
26. We may now briefly refer to the factual aspects involved in the respective writ petitions with reference to the various orders issued by the authorities.
27. Sarvasri Sardar Harihar Singh, Y. Vijay Kumar (petitioners in W.P.No.13572 of 2001) Shaik Sharifuddin, and M.G.F. Santakumar (petitioner in W.P.No.13558 of 2001) filed O.A.No.7579 of 1998 questioning the aforesaid G.O.Ms.No.349 and consequential orders dated 15.12.2000 issued pursuant thereto. The petitioner No.1 in W.P.No.13572 of 2001 was appointed as Sub-Inspector of Police in 1974 in Zone VI and he was promoted as Inspector of Police in 1998. By the proceedings of the Special Inspector General of Police (Admn.) dated 24.5.1988 he was transferred from Hyderabad Range to Hyderabad City Police on administrative grounds and in public Interest. The order mentions that his seniority will be maintained in Hyderabad City Zone. The 2nd petitioner was appointed as Sub-Inspector in 1976 in Zone IV and was promoted as Inspector of Police in 1992. By the orders of the Spl. Inspector General of Police dated 16.6.1994 he was transferred to Hyderabad City Police on temporary basis on administrative grounds and in public interest subject to the result of O.A.Nos.22622 of 1990 and batch. The order of the 2nd respondent mention that his seniority will be maintained in Kurnool Zone.
By G.O.Rt.No.2424 Home (Police-C) Department dated 25.11.1998 both the petitioners were repatriated back to their parent ranges. However, they were continuing by virtue of the orders passed by this Court in W.P.No.32683 of 1998 directing to maintain status quo pending disposal of O.A.No.7579 of 1998. The O.A. was, however, disposed of as covered by the Full Bench judgment of the Tribunal dated 20.10.1994. The petitioners challenged the same in W.P.No.5613 of 1999 wherein this Court directed to maintain status quo on 19.3.1999. The Writ Petition was finally disposed of on 30.1.2001 remanding the matter to the Tribunal for fresh disposal and directed to maintain status quo till the disposal of the O.A.
28. The petitioner in W.P.No.13558 of 2001 was appointed as Sub-Inspector of Police in Zone IV in 1976 and promoted as Inspector of Police in 1982. By order dated 29.3.1995 of the Inspector General of Police (Admn.) he was transferred to Hyderabad City on administrative grounds and in public interest and the order mention that his seniority will be reckoned in Hyderabad city. By the order dated 25.11.1998 he was repatriated back to his parent zone.
29. The petitioner in W.P.No.15101 of 2001 arising out of O.A.No.8534 of 1998 was appointed as Sub-Inspector of Police on 21.4.1974 in Zone IV and later promoted as Inspector of Police in 1982. He was transferred from Zone-IV to Zone II by proceedings dated 2.4.1997. By the impugned orders he was repatriated back to his parent range.
30. The petitioner (K. Ashok Reddy) in W.P.No.13545 arising out O.A.No.8430 of 1998 was appointed as Sub-Inspector of police in Zone V in 1978 and promoted as Inspector of Police on out of seniority in February, 1987 and on regular basis in June, 199i. By the proceedings dated 12.2.1996 he was transferred to Hyderabad Range and at the relevant time he was working as Inspector of Police, Saroornagar. He was one of the persons repatriated through G.O.Rt.No.2424. He obtained orders of status quo in O.A.No.8438 of 1998. When the Deputy Inspector General of Police issued the consequential proceedings dated 4.1.2001 he filed O.A.No.58 of 2001 and the Tribunal by orders dated 9.1.2001 granted interim suspension of the said orders. The said O.A. was also tagged on O.A.No.8430 of 2001.
31. The petitioner in W.P.No.13458 of 2001 (G. Anantha Reddy) arising out of O.A.No.2139 of 2001 was appointed as Sub-Inspector of Police in Zone VI on 1.2.1974 and promoted as Inspector of Police on 18.7.1988. He is not aggrieved by the orders of the Government in G.O.Ms.No.349 or G.O.Rt.No.2424. His grievance is that though by orders dated 4.1.2001 he was posted as Inspector of Police, Saroornagar he was not permitted to join duty. It appears that there was a dispute between the petitioner in W.P.No.13545 of 2001 and this petitioner as to the holding of the post of Inspector of Police, Saroornagar P.S. Pursuant to an order passed in C.A.No.1881 of 2001 the petitioner in W.P.No.13545 of 2001 was issued posting orders on 3.4.2001 at Saroornagar and the petitioner herein was kept under reserve for want of vacancy from 1.8.2001. He challenged the same in O.A.No. 2139 of 2001. The O.A. was tagged on to O.A.No.8430 of 1998 and O.A.No.58 of 2001. These three OAs were dismissed. The Tribunal observed that both the petitioners continued vexatious litigation with the predominant motive of occupying the post of Inspector Police, Saroomgar P.S. and therefore it was not desirable to allow either of them as Inspector of Police, Saroornagar PS in public interest. Being aggrieved, he filed the present Writ Petition. According to him, he was still kept on waiting for posting and he is not being paid salary from 3.4.2001.
32. Aggrieved by the observations of the Tribunal in O.A.No.2139 of 2001 as against the petitioner Sri Ashok Reddy, he filed W.P.No.19341 of 2001. He also filed W.P.No.19375 of 2001 challenging the proceedings dated 4.1.2001 of the Deputy Inspector General of Police, Hyderabad Range referred to above repatriating him back to his parent zone.
33. The Tribunal by the order under challenge held that the transfer of the petitioners to Hyderabad city is on temporary basis and they cannot claim permanent absorption in the unit to which they were transferred. Rejecting the contention of the petitioners that the Judgment of the Full Bench of the Tribunal is not binding on them the Tribunal held that the judgment of the Full Bench in O.A.Nos.22622 of 1990 to 22635 of 1990 is a judgment in rem and not judgment in personam. It was also held that the seniority of the petitioners was being maintained in their respective police ranges only and not in Hyderabad City Police. It was further held that Hyderabad City Police is not part and parcel of Zone VI and is a free zone and separate independent recruitment is being made in. respect of posts of Hyderabad City Police. As regards the issue of not repatriating similarly placed persons, it was found that such persons will be considered soon after disposal of pending oral enquiries/ACB cases registered against them. The Tribunal also held that the petitioners were appointed and promoted in their parent zones and therefore they cannot have a right to be treated as regular candidates of Hyderabad City Police. The Tribunal also held that the Tribunal in the Full Bench Judgment while upholding the Rules read down the same instead of striking down them and the G.O.Ms.No.349 has been issued only by way of clarification to G.O.Ms.No.288.
Holding so, the Tribunal dismissed all the applications.
34. Being aggrieved, the present Writ petitions were filed.
35. The petitioner in W.P.No.13458 of 2001 is not concerned with the transfer from one zone to another. Except the petitioner in W.P.No.15372 of 2001, the other petitioners were transferred to Hyderabad City Police from other zones. The Petitioner in W,P.No.l5372 of 2001 was transferred from Zone IV to II and was repatriated back to Zone IV pursuant to G.O.Ms.No.349.
SUBMISSIONS:
36. Mr. Nuty Rammohan Rao, learned counsel appearing for one of the petitioners would submit that the learned Tribunal erred in not considering the legality and validity of the policy decision of the State contained in G.O. Ms. No.349 and G.O.Rt.No.2424. He would further submit that in terms of Para 3(6) of the presidential Order no separate cadre has been organised for the City of Hyderabad and, therefore, the State was competent to make provision for effecting transfer from one local cadre to another local cadre in terms of Para 5(2Xc) of the Presidential Order. The Tribunal in the Full Bench judgment upheld the validity of the Rules issued in G.O. Ms. No.288 and once an employee is transferred from one local cadre to another in public interest and on administrative grounds, they cannot be repatriated back. Rule 3 of the Rules is in conformity with the provisions contained in Para 5(1) of the Presidential Order.
37. Sri P.V. Krishnaiah, the learned counsel appearing for the petitioners would submit that the petitioners were transferred to Hyderabad City Police on permanent basis and, therefore, they cannot be repatriated back to their parent zones. The Full Bench judgment of the Tribunal does not come in the way of the petitioners being transferred to Hyderabad City Police and G.O. Ms. No.349 is contrary to the power vested on the State to effect transfers under para 5(2) of the Presidential Order and the rules issued in G.O.Ms.No.288 are in accordance with Para 5(2). Insofar as Sub-Inspectors and Inspectors of Police are concerned, there is no separate zone for Hyderabad City and it is included in Zone VI only and as such inter-cadre transfers is permissible. It was further submitted that all the posts in the Police Department are covered by the A.P. Police Subordinate Service Rules issued in exercise of the power under Article 309 of the Constitution and no separate recruitment is being made under the provisions of the Hyderabad City Police Act. The Full Bench was not correct in holding that Hyderabad City is a separate Unit. Nobody was appointed under the Hyderabad City Police Act. Learned counsel would further submit that G.O.Ms.No.349 would operate only prospectively but not retrospectively.
38. The learned Additional Advocate-General would contend that Government under Para 5(2) is empowered to make transfers in certain specified circumstances mentioned in Clauses (a) to (d). In the Full Bench Judgment, the Tribunal read down the Rules issued in G.O.Ms.No.288 to the extent the posts of Police Officers under Para 14(f) are exempted. He would further urge that G.O.Ms.No.349 has been issued only by way of clarification to G.O. Ms. No.288 dated 6.5.1986.
FINDINGS:
39. Section 3 of the Act 1985 begins with a non-obstante provision and renders liable a member of the Police Force to serve in any part of the State of Andhra Pradesh. Section 2(b) of this Act defines a Police Force to mean the Police Force constituted under the Hyderabad City Police Act 1348 Fasli; the Andhra Pradesh (Andhra Area) District Police Act 1859 and Andhra Pradesh (Telengana Area) District Police Act 1329 Fasli or any other law relating to the Police Force.
40. On a linguistic construction of the expressed terms of the Act 1985, there are no apparent limits to the transferability of a member of the Police Force within the territory of the State of Andhra Pradesh.
41. Having regard to the provisions of Presidential Order 1975 made under Article 371-D of the Constitution, local cadres have been constituted and Para 5(1) of the Presidential Order which mandates that each part of the State, for which a local cadre has been organised in respect of any category of posts, shall be a separate unit for the purpose, inter alia, of transfer. Having regard to the provisions of Article 371D(10) the Presidential Order prevails over any provision of the Constitution or any other law for the time being in force. In this Constitutional position, while the provisions of the Act 1985 are plenary within that sphere would nevertheless require to be construed in harmony with the provisions of the Presidential Order. The liability of a member of the police force to be transferred to any part of the State and the concomitant power of the State Government to so effect a transfer is thus subject to the limitations enjoined in the Presidential Order.
42. The doctrine of reading down of a statute is a well recognised principle of statutory construction. This doctrine is used either for saving a statute from being struck down on account of unconstitutionality, resulting either from the incompetence of a legislature to enact a statute or from its violation of any of the provisions of the Constitution. Thus wherever the provisions of the statute are vague, ambiguous or couched in broad phraseology and two interpretations are possible on its terms - one which renders the provisions constitutional and the other unconstitutional, a limiting construction can be employed to structure the provisions of the statute, so as to being them in conformity with the constitution and thus rendering them intra vires vide.
43. In Re The Hindu Women's Rights to Property Act, 1937 and The Hindu Women's Rights to Property (Amendment) Act, 1938 (AIR 1941 FC 72); Nalinakhya Bysack vs Shyam Sunder Haldar ; R.M.D. Chamarbaugwalla vs Union of India ; Kedar Nath Singh vs State of Bihar ; R.L. Arora vs State of Uttar Pradesh ; Jagadish Pandey vs The Chancellor, University of Bihar ; Umed vs Raj Singh ; Sunil Batra vs Delhi Administration AIR 1978 SC 1675; Excel Wear vs Union of India and Minerva Mills Ltd, vs Union of India .
44. In VIJAYALAKSHMAMMA v. B.T. SHANKAR, , the Apex Court has pointed out that the Courts may not add or alter provisions of statute by reading into them what was never intended by the legislature or may have been deliberately avoided by it. (Also See GM SC RAILWAY, SEC'BAD v SRI RAMA ENGINEERING CONSTRUCTIONS, ).
45. The alleged uncanalised grant of power to transfer a member of the Police Force to any part of the State of Andhra Pradesh, under the Act 1985, must thus on principle and authority, be read as empowering transfer only in conformity with the provisions of the Presidential Order in particular para 5 thereof.
46. An analysis of the provisions of the Presidential Order 1975, discloses that an elaborate framework for organisation of local cadres for parts of the State has been made both for the purposes of fitment of the existing employees as well as those to be recruited in future, as also for transfer, seniority and promotional avenues, which are either localised or State wide, as the case may be. This is apparent from paras 3 and 6 of the Presidential Order. Para 4 of the Presidential Order lays down the principles that should govern the allotment of persons to local cadres which are specified in para 4(2)(a) to (e). Para 4(4) and 4(5) enable consideration of grievances with regard to allotment and rectification of the same, wherever found necessary and warranted. Para 4(6) enacts finality to any order of the State Government made on any representation setting out grievances with regard to allotment, subject, however, to adjudication of such dispute by the Administrative Tribunal constituted for the State of Andhra Pradesh under Article 371D(3) of the Constitution.
47. Para 14 of the Presidential Order saves posts in specified departments, establishments or institutions from the provisions of the Presidential Order, which includes any post of Police Officer as defined in Clause (b) of Sec.3 of the Hyderabad City Police Act 1348 Fasli. The posts in institutions, departments or establishments set out in para 14 of the Presidential Order are thus outside the ambit of the provisions of the Presidential Order. Para 11 enacts an overriding effect to the provisions of the Presidential Order over any statute, Ordinance, rule, regulation or other order made before or after the commencement, of the Presidential Order.
48. Para 5 specifies that each part of the State for which a local cadre has been organised in respect of any category of posts shall be a separate unit for the purpose 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.
49. On an analysis of the provisions of the Presidential Order and in particular those adumbrated above, it is clear that having regard to the historical compulsions which have led to the enactment of Article 371D, the Presidential Order provides the framework for intra State compartmentalisation of certain posts under the rubric of local cadres, constituted for parts of the State and protects the service conditions of members allotted or recruited to such local cadres in respect of matters specified in para 5(1). The local cadres are thus the result of the historical compulsions engendered by economic and other differentia operating between parts of the State of Andhra Pradesh and of the felt grievances of residents of such parts of the State.
50. In construing the power granted to the State Government under para 5(2) for making provisions 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 (Article 371D(10) read with Para 11 of the Presidential Order).
51. It is not in dispute that in terms of Section 3 of the Act, 1985 the State Government may transfer a member of the police force from one place to another within the State. It is also not in dispute that the rules issued in G.O.Ms.No.288 dated 06-05-1986 provide for transfer of members of the police force.
52. What was questioned before the Tribunal is the validity or otherwise of Rule 3 of the said rules. The vires of Rule 3 aforementioned has been questioned inter alia on the ground that no guideline has been provided therein and thereby an unbriddled and uncanalised power has been conferred.
53. The said rules apply to every member of police force from the rank of police constables to the rank of Inspector and were of equivalent ranks working in District Armed Forces (DAR) etc. The applicability of the rule therefore is limited to the officers specified therein. By reason of Rule 2 no power has been delegated but mere competency of the concerned officers had been provided. Rule 3 protects seniority. Such seniority is required to be protected having regard to the provisions contained in the Presidential Order. The salutary principle underlying the framing of Rule 3 is the administrative ground and public interest.
54. What is an administrative ground and what would be an action in public interest although may vary from case to case, but the power of judicial review against an order of transfer is not excluded. The Court exercising its power of judicial review can always interfere in the event a transfer has not been made on administrative ground or in public interest.
55. Non-availability of competent officer and public interest are themselves provide for adequate guidelines. Furthermore, in a case where an action is contrary to the principle enunciated in the Presidential order, a judicial review would lie and thus it cannot be said that Rule 3 is ultra vires Article 14 or 246 of the Constitution of India.
56. However, there cannot be any dispute that Clause (10) of Article 371-D of the Constitution of India will have primacy.
57. We may notice that no separate organisation 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. Pare 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 organised for the city of Hyderabad, no such cadre has come into being. Further, in terms of notification issued by the Central Government in G.S.R. No. 528(E) dated 18.10.1975, the Police Department is not part of the said notification for the purpose of organisation 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 organised 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.
58. Para 5(2) provides the repository of the power. Para 5(2) (a) has no application in the instant case.
59. The State Government has made provisions for transfer of a person from a local cadre to another local cadre where no qualified or suitable person is available in the latter cadre or where such transfer is otherwise considered necessary in the public interest. The power of the Stale Government is therefore limited. The said power can be exercised only in the event the conditions precedent therefor are satisfied.
60. 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 of Hyderabad therefore comes within the purview of Zone-VI only.
61. A transfer from one cadre to another cadre has to be made keeping in view the various contingencies viz., a) having regard to the public interest and permanent in nature; b) it is transient in nature; c) temporary and d) shifting the cadre.
62. Seniority of the person concerned was therefore required to be protected, having regard to the fact that even if a transfer from one cadre to another is temporary, a situation may arise where the question of his promotion may come up. Unless appropriate safe-guard is made, as regards seniority of a person transferred, he may not be considered for promotion at all.
63. Having regard to para 5 (2)(c) of the Order, there cannot be any doubt whatsoever that the State has the requisite power to make transfers in public interest. As there does not exist any Hyderabad zone, para 5 (2)(a) would not come into play at all.
64. Transfer under general law is an incidence of service, but having regard to the peculiar situation obtaining in the State of Andhra Pradesh and in particular having regard to the Presidential Order, there cannot be any doubt whatsoever that a person cannot be transferred from one cadre to another cadre in a normal situation. An order of transfer would be permissible only when the condition precedent therefor exists.
65. In each case, the State is required to apply its mind and come to a conclusion as to whether an order of transfer should be passed, having regard to non-availability of a suitable person or in public interest. Non-availability of a suitable person may be temporary in nature. As and when a suitable person is found out, a person belonging to the local cadre may replace a transferee.
66. Tf for the aforementioned purpose, a policy decision has been taken by the State that no permanent transfer shall be made, the same cannot be found fault with.
67. Insofar as public interest is concerned, transfer from one cadre to another cadre is permissible. Such public interest may either be temporary or permanent in nature.
68. In a case where an order of transfer is required by way of a temporary measure, the officer concerned should be transferred back to his parent zone. However, there may be some exceptional circumstances where transfer of a person on permanent basis from one cadre to another cadre may have to be affected. Situations may vary from circumstances to circumstances. As for example, where grave law and order problem arises in one part of the State, transfer from one cadre to another cadre with a view to meet the exigency of the situation is not prohibited. Further more, when the services of a particular officer may become necessary, having regard to his expertise or experience in dealing with the similar matters, public interest may demand of his services be requisitioned. But, inter cadre transfer should be made in exceptional situations. It is now a common knowledge that entire cadre transfer is sought for and is made for extraneous considerations having regard to the chances of promotion, better amenities and other factors. In a case of such nature, the order of transfer cannot be passed and having regard to the scheme of the Presidential Order vis-a-vis the said Act and the Rules, such orders of transfer can be interfered with by the Tribunal or by this Court.
69. In S.PRAKASHA RAO v. CCT, , the apex Court clearly held that the State Government has no blanket power to create local cadres, as the same would tend to defeat the object of Article 371-D and the Presidential Order. As regards organisation of a separate cadre is concerned, having regard to the language used in Para 3 (7), it was held that the same may be given effect to.
70. But, as noticed hereinbefore, no separate cadre has been created in respect of the police force so far as Hyderabad is concerned and thus the city of Hyderabad is comprised in Zone-VI. As further noticed hereinbefore, no person has been appointed strictly in terms of the Hyderabad City Police Act and thus even the provisions contained in Para 14 (f) will have no application.
71. In GOVT. OF A.P. V. A. SURYANARAYANA RAO, , the apex Court held:
.... Para 5 of the Presidential Order is also to the same effect. When once each zone is treated as a separate unit for the purpose of promotion also in respect of zonal posts then by virtue of Article 371-D and the Presidential Order, as observed above, the promotion from the post of Junior Engineer to the post of Assistant Engineer which are both zonal posts, should be on the basis of the zonal seniority list inasmuch" as the post of junior Engineer and the next promotion post namely Assistant Engineer are included in the local cadre and the zonal list as we find in the Third Schedule. With regards the higher posts which are not included in the local cadre and which are Statewide posts, it becomes obvious that the Statewide seniority list of the Assistant Engineers of all zones should be prepared and that should be the basis of promotion to the post of Executive Engineer which is not a zonal post.
72. The apex Court reiterated the dicta in S.PRAKASH RAO (supra) and held that the zonal seniority list prepared pursuant to the initial organisation and creation of local cadres has to be maintained.
73. A similar question came up for consideration recently in GOVERNMENT OF ANDHRA PRADESH v. MOHD. GHOUSE MOHINUDDIN and Ors., therein the earlier decisions of the apex Court in S. PRAKASH RAO (supra) and SURYANARAYANA RAO (supra) were upheld. In the aforementioned decision, the apex Court also held:
5. ... A combined reading of Paragraph 3 (1) and 3 (7), therefore makes it clear that within 18 months from the commencement of the Presidential Order, the State Government could organise classes of posts in the Civil Services of the State into different local cadres for the purpose of achieving the main objective of the Presidential Order, and such organised local cadre, would be the area of operation for considering the question of recruitment, promotion etc. this being the position, the Tribunal committed error by holding that Paragraph 3(3) of the Presidential Order would have an over-riding effect.
74. The apex Court upon analysing the provisions of Article 371-D vis-a-vis the Presidential Order held that Para 3 (7) would have an over-riding effect Para 3 (3).
75. Understood in the context of its evolutional history, the power conferred on the State Government under para 5(2) must necessarily be interpreted as a power to make a provision for transfers for exceptional reasons, which will have to be such as to warrant a departure from the framework of local cadres carefully structured under the provisions of the Presidential Order. If the expression "nothing in this order shall prevent the State Government" from making provisions for transfers [para 5(2)] is to be given its ordinary, natural and grammatical construction, the entire scheme of the Presidential order including the immunity provided to such order from the legislative and executive power of the State would be rendered nugatory and illusory. After a local cadre is organised and allotments/ direct recruitment made to such local cadres, the State would be free to make provisions for transfers, totally disrupting the harmony of local cadres so achieved, by the devise of free transferability and the cellular discipline of local cadres could be totally subverted. Such irrationality cannot be imputed to the Presidential Order.
76. On the above analysis we hold that the power of the State Government to make a provision for transfer in any of the circumstances and exigencies set out in sub-paras (a) to (c) of para 5(2) is a power circumscribed by the limitation that such transfers are to be only in exceptional circumstances, in exigencies of overriding public interest or where no qualified or suitable person is available in a particular local cadre and predominantly only for a transient period for which such contingency exists, an exception being the circumstance enumerated in para 5(2Xd) namely reciprocal basis.
77. To maintain the sanctity of the local cadre discipline in particular as set out in the provisions of para 5(1), we also hold that while effecting any transfers by virtue of a provisions made by the State Government under para 5(2), clear and specific reasons must be recorded justifying such transfer within the contours of para 5(2)(a) to (d). Such recording of reasons is essential to enable conformity of the State's power to transfer with the provisions of the Presidential Order. Such recording of reasons would facilitate and ensure the exercise of power of transfer within the confined and limited contours available to the State.
78. 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.
79. 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 dt 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 - 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 needs 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 the 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.
80. 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(2Xd) 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.
81. Nothing has been placed before this court to demonstrate that any appointments of police officers have been made only 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 proviso to Article 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.
82. Section 2(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 ofPolice and subject to provisions of Sub-section (2) of Sec. 9 and Sub-section(2) of Section 10 every person who has been appointed as an Additional or Special Police Officer. Section 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 appointments made under the Special Rules made under the proviso 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.
83. 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 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.
84. 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)0) read with 3(4) of the Presidential Order and being required therefore, to be organised into a zonal cadre of Inspector of Police including those working for the once 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 organised one.
85. To the aforementioned extent, the Full Bench decision of the Tribunal in O.A.Nos.22622 to 635 must be held to have not been rendered correctly.
CONCLUSIONS:
(a) Transfers from and to the departments, institutions, establishments specified in para 14 of the Presidential Order are outside the limitations of the Presidential Order.
(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 a 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.
(e) The provisions of Sec. 3 of the Act 1985 imposing a liability on a member of the police force to serve in any part of the State of Andhra Pradesh and the concomitant power of the State Government to effect such transfer has to be in conformity with the provisions of para 5(2) of the Presidential Order in view of the provisions of Article 371D(10) of the Constitution and para 11 of the Presidential Order.
(f) Transfer of a member of the police force from any local cadre to any office or establishment under para 14 or vice versa, the transfer of a person from any local cadre comprising posts in any office or establishment exercising territorial jurisdiction over a part of the State to another local cadre comprising posts of such part or vice versa and the transfer of a person from one local cadre to another local cadre could be effected only where no qualified or suitable person is available in such later cadre or where such transfer is otherwise considered necessary in the public interest and not otherwise. Wherever such transfers are made on the ground of public interest, such public interest must be of such overriding impact as to warrant a departure from the local cadre discipline set out in paras 3, 4, 5(1) and 6 of the Presidential Order.
(g) While effecting such transfer, reasons must be recorded justifying such transfers either on the ground of there being no qualified or suitable person available in the cadre to which transfer is to be effected or on the ground of overriding public interest.
(h) Such transfers are normally to be of limited duration or tenure coterminus with the specified exigency for which the transfer is made and shall cease to be operative and the incumbent transferred liable to be reverted to the parent cadre immediately on the cessation of such exigency, which warranted the transfer.
(i) Transfer on long-term basis or of indeterminate duration should be in the rarest of circumstances, again for clearly specified reasons and there should be a periodical review of the need for continuance of the person so transferred in the transferred local cadre.
(j) in all cases of transfer made in the circumstances set out in para 5(2)(a) to (c) and on the principles after stated, (he person so transferred is entitled to his seniority in the unit to which he is transferred. Rule 3 of the Rules under the Act 1985 is valid.
(k) in the case of transfers on reciprocal basis, the seniority of persons transferred shall be in accordance with the prescriptions of para 5(2)(d). Rule 3 of the Rules under the Act, 1985 is in such cases inoperative.
(1) Even in case of transfers on reciprocal basis, due regard must be had to the principles of maintenance of composition of balance local cadre with reference to age and seniority groups, the administrative needs of the posts in the local cadres and the like as set out in para 4(2) of the Presidential Order.
(m) Rule 3 of the Rules made under the provisions of the Act 1985 is operative to the extent it is in conformity with the principles set out in Paras (j) and (k) above.
86. Before parting with this case, we may notice that various other findings of the learned Tribunal had been questioned by the learned counsel for the parties on several grounds, but having regard to the fact that the questions raised in the respective O.As are required to be considered afresh, as at present advised, we do not intend to enter into the said questions.
87. Having answered the reference as above, resolution of the individual cases is relegated to the Division Bench to be decided on merits of each of the writ petitions.