Telangana High Court
K.Mohan Raj vs The State Of Telangana, on 25 July, 2025
Author: P.Sam Koshy
Bench: P.Sam Koshy
IN THE HIGH COURT FOR THE STATE OF TELANGANA :
HYDERABAD
***
WRIT PETITION NO.5477 OF 2024
ORDER PRONOUNCED ON: 25.07.2025
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
Between:
1. Sri K.Mohan Raj S/o K.Masaiah.
2. Md.Moosa S/o Md.Hasnoddin.
3. Sri A.Krishna Vardhan Reddy.
v. ...petitioners
1. The State of Telangana, rep.by its
Principal Secretary, Revenue (CT.I),
Department, Secretariat, Hyderabad.
2. The Commissioner of Commercial Taxes,
Commercial Tax Complex, Nampally,
Hyderabad.
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes/No
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes/No.
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes/No.
_________________________________
NARSING RAO NANDIKONDA, J
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PSKJ & NNRJ
WPNo.5477 of 2024
* THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
WRIT PETITION NO.5477 OF 2024
% 25.07.2025
# Between:
1. K.Mohan Raj S/o K.Masaiah,
Age 60 years, Occ;Dy.Commercial
Tax Officer, O/o Assistant Commissioner,
Gadwal Circle, Nalgonda Division, Jogulamba
Gadwal District.
2. Md.Moosa S/o Md.Hasnoddin,
Age 53 years, Occ:Dy.Commercial Tax
Officer, Occ:Dy.Commercial Tax Officer,
O/o. Assistant Commissioner, Malkajgiri-2
Circle, Malkajgiri Division, Hyderabad.
3. A.Krishna Vardhan Reddy S/o A.Venkat
Reddy, age 50 years, Occ:Dy.Commercial
Tax Officer, O/o Assistant Commissioner,
Jeedimetla - 1 Circle, Hyderabad (R) Division,
Hyderabad. ...Petitioners
v.
1. The State of Telangana,
Rep.by its Principal Secretary,
Revenue (CT.I)Department,
Secretariat, Hyderabad,
2. The Commissioner of Commercial Taxes,
Commercial Tax Complex, Nampally, Hyderanad. ...Respondents.
! Counsel for Petitioners : Sri M.Surender Rao, learned Senior
Counsel representing Sri Srinivasa
Madiraju
^Counsel for the respondents : 1.Sri Satyanarayana Rao, learned
Government Pleader for Services-I,
appearing for respondent Nos.1
and 2
Sri P.V.Ramana, learned counsel
for respondent Nos.3 and 4.
`
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<GIST:
> HEAD NOTE:
? Cases referred
1. Appeal (civil) 9643-9644 of 1995
2. 2007 (3) ALT 516 (DB)
`
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WPNo.5477 of 2024
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
WRIT PETITION NO.5477 OF 2024
ORDER:(per Hon'ble Sri Justice Narsing Rao Nandikonda) This Writ Petition, under Article 226 of the Constitution of India, is filed seeking the following relief:
"(i) to declare that Rule-3 of Telangana State Commercial Tax Service Rules issued vide GO Ms.No.360, dated 23.04.1994 (adapted by Government of T.S. Sec-101 of A.P.Re-Organization Act) in so far as it provides for appointment by transfer from category of Section Officers and Private Secretaries to Secretary to Government of Telangana State and note thereunder reserving 10% percentage of the posts of CTO to them as illegal as they are violative of T.S.Public Employment OLC & RDR Order, 2018 and also in violation of Article 371(D) of the Constitution of India.
(ii) Further declare that continuing the said provision in the service rules despite the judgment of the Hon'ble Supreme Court in V.Jagnnadha Rao v. State of A.P and others, as illegal and in violative of para-11 of the Presidential Order, 1975 and para-11 of Telangana Presidential Order, 2018.
(iii) Further declare that U.O Note No.8390/SU.I/A1/2023, dated 12.12.2023 calling for willingness of Section Officers and Private Secretaries for appointment by transfer to the post of CTOs is illegal and contrary to the circular U.O. Note dated 15.02.2023 and the judgment mentioned above.
(iv) Further declare that all the 68 vacancies of CTOs available in Multi Zone-
II shall be filled either by direct recruitment or by promotion from the category of DCTOs only."
2. Brief facts of the case are that the petitioners are working as Deputy Commercial Tax Officers (DCTOs) in Zone-VI vide proceedings No.CCTS Ref.No.TS/D2/D2/708/218, dated 19.12.2020 and their names were shown at Sl.Nos.6, 36 and 74 respectively in the provisional selection list. As per Para No.3 of the Telangana Public Employment (Organization) of Local ` 5 PSKJ & NNRJ WPNo.5477 of 2024 Cadres and Regulation of Direct Recruitment Order, 2018, the Telangana State Government had approved the scheme for Organization of Local Cadres in each and every Department by issuing separate Government Orders (GOs).
3. In respect of Commercial Tax Department, Government issued G.O.Ms.No.209, General Administration (SPF-II) Department, dated 04.08.2021 approving the scheme of Organization for Local Cadres in Commercial Taxes Department. In terms of the said G.O., the posts of DCTOs and CTOs fall under Multi-Zonal Cadre. It is also stated that as per the Judgment of the Hon'ble Supreme Court in Jagannadha Rao's case (supra) the Government of A.P., GAD (SPF) Department issued Circular U.O. Note No.44232- B/SPF.A/2002, dated 15.02.2003, giving instructions to all the Departments of Secretariat and Heads of Departments to stop appointment by transfer of Section Officers/Assistant Section Officers, Superintendents etc., working in the Secretariat and Heads of Department Offices to the Executive Cadre posts localized under Presidential Orders in the Districts, till further orders.
` 6 PSKJ & NNRJ WPNo.5477 of 2024
4. It is further stated that the Gazetted Level Posts in Commercial Tax Department in the combined State of Andhra Pradesh were governed by the Rules called the Andhra Pradesh Commercial Taxes Rules issued vide G.O.Ms.No.360, Revenue (CT.I), dated 23.04.1994 (adapted by Government of Telangana State in terms of Section 101 of the Andhra Pradesh State Re- Organization Act, 2014). The posts of CTOs and DCTOs come under Category-5 and Category-6 of said G.O.Ms.No.360, dated 23.04.1994. Rule-3 of the Andhra Pradesh Commercial Taxes Rules deals with method of appointment of certain posts, which reads as under:
Sl.No. Category Method of appointment
(1) (2) (3)
1 Addl. Commissioner, Commercial Taxes By promotion from
Category (2)
2 Joint Commissioner, Commercial Taxes By promotion from
Category (3)
3. Dy.Commissioner, Commercial Taxes By promotion from
Category (4)
4. Asst.Commissioner, Commercial Taxes By promotion from
Category (5)
5. Commercial Tax Officer (i) By direct recruitment;
(ii)By promotion from
category of Section
Officers/Private
Secretaries to
Secretaries, Government
of A.P., Secretariat
(except Law and Finance
and Planning (Finance
Wing) Department
6. Dy.Commercial Tax Officer (i)By transfer from the
category of
Asst.Commercial Tax
Officers in the A.P.
Commercial Taxes
Subordinate Service.
`
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PSKJ & NNRJ
WPNo.5477 of 2024
(ii) By transfer from the
category of
Superintendents/Special
Category stenographers
of the Offices of the
Commissioner of
Commercial Taxes and
Sales Tax Appellate
Tribunal.
5. It is further stated that the total cadre strength of Commercial Tax Officers in Telangana State is 153 and to fill up the said posts, the respondents called for service particulars of Section Officers and Private Secretaries to Government, vide U.O.Note No.8390/SU.I/A1/2023, dated 12.12.2023, whereunder it is stated that the Section Officers / Private Secretaries in Telangana Secretariat are not Members in any cadre in the Department of Commercial Taxes; and that the persons holding the posts in the local cadres in the Department of Commercial Taxes alone are entitled to be considered for appointment to higher posts in the Department of Local Cadres (District Zone and Multi Zone) in terms of para-5 of the Presidential Order, 1975. The scope of para-5 of the Presidential Order, 1975 has been interpreted by this Court and also by the Hon'ble Supreme Court in Jagannadha Rao's case (supra). Subsequent to the said landmark judgment, the Government of Andhra Pradesh also issued Circular vide ` 8 PSKJ & NNRJ WPNo.5477 of 2024 U.O.Note No.44232-B/SPF.A/2002, dated 15.02.2003 instructing all the Departments of Secretariats and all Heads of the Departments to stop appointments by transfer of Sections Officers/Assistant Section officers, Superintendents etc., working in the Secretariat and Heads of Department of office to the Executive Cadre posts localized under the said Presidential Order. Thus, it is clear that Section Officers / Private Secretaries to the Telangana Secretariat cannot be appointed by transfer as the post of Commercial Tax Officer is an Executive Cadre post organized in Multi Zonal Cadre.
6. Heard Sri M.Surender Rao, learned Senior Counsel representing Sri Srinivasa Rao Madiraju,learned counsel for the petitioners and Sri Satyanarayana Rao, learned Government Pleader for Services-I appearing for respondent Nos.1 and 2 and Sri R.V.Ramana learned counsel for respondent Nos.3 and 4.
7. Learned Senior Counsel appearing for the petitioners submitted that any provision in the Service Rules or any other law to the extent is not in consonance with the provisions of the Presidential Order in terms of Article 371 (D)(10) of the Constitution of India and in terms of Para-11 of the Presidential Order, as the posts of DCTOs and CTOs are ` 9 PSKJ & NNRJ WPNo.5477 of 2024 Multi-Zone Posts and the post of CTOs can be filled with by promotion from DCTO or by Direct Recruitment only. But, it cannot be filled with by way of appointment by transfer of Section Officers and Private Secretaries to Secretariat, Telangana Government as it is not a post Organized in Local Cadres in the Department of Commercial Taxes. In support of his contentions, he also placed reliance on the judgment of erstwhile High Court of Andhra Pradesh, Hyderabad in G.Rajababu v. Government of Andhra Pradesh, rep by its Secretary, & others 1, wherein it was held thus:
"It is true that the factual matrix in the present case is not identical to that of V.Jagannadha Rao. While, in the present case, the method of appointment under the Rules is appointment by transfer from posts in the head office to the post of the Assistant Labour Officer in the subordinate office of the same department, in V.Jagannadha Rao appointment by transfer was from posts in one department to posts in another. This distinction is, however, insignificant. The Supreme Court in V. Jagannadha Rao 1 , while examining the validity of certain provisions of the A.P. Labour Subordinate Service Rules, interpreted the provisions of the Presidential Order and the construction placed by the Supreme Court, on the provisions of the Presidential Order, is binding on the High Court and must be followed.
Clause 21, of the instructions in G.O.P. No.729 dated 1.11.1975, relates to recruitment to posts in offices of heads of departments and specifically provides that the scheme of reservation in favour of local candidates, as prescribed in the Presidential Order, would not 1 2007(3) ALT 516 (DB) ` 10 PSKJ & NNRJ WPNo.5477 of 2024 apply to such posts. It needs no reiteration that it is only to the limited extent that Article 371-D of the Constitution of India requires, and the Presidential Order so provides, can different local cadres be organized for different parts of the State. But for the provision of Article 371-D, and the Presidential Order, any such local area reservation, or reservation on the basis of residence in a part of the State, would have fallen foul of Article 16(2) and would be void in view of Article 13(2) of the Constitution. In so far posts in the office of the heads of departments are concerned, since Para 14 itself provides that the Presidential Order has no application to such posts, local area reservation/reservation on the basis of residence in a part of the State, cannot be provided to posts in head offices as it would then be in violation of Article 16(2) of the Constitution of India. It is only when the source of power to so provide is referable to a specific provision in the Presidential Order itself would exercise of such power be entitled for protection under clause (10) of Article 371-D of the Constitution of India. Since the source of power of the State government, in making rules providing for appointment to posts in a local zonal cadre by transfer from posts in the offices of heads of departments, is not referable to any of the provisions of the Presidential Order, such rules are not protected under Article 371- D(10) of the Constitution of India and, consequently, are liable to be struck down as ultravires Article 16(2) of the Constitution. Clause 21, of the instructions in G.O.(P) No. 729 dated 01.11.1975, is but a reiteration of this principle and reliance placed thereon, to contend that employees holding posts in the offices of heads of departments are entitled to be appointed by transfer to local cadre posts, (district/zone), is misplaced.
The mere fact that posts, in offices of the heads of departments, do not come within the purview of the Presidential Order would not entitle employees holding such posts to claim appointment by transfer to posts in a local cadre for, under Para 5(1) of the Presidential Order, each part of the State for which a local cadre has been organized, in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment, discharge, seniority, promotion, transfer etc., Appointment by ` 11 PSKJ & NNRJ WPNo.5477 of 2024 transfer to a zonal cadre post, in view of para 5(1), can only be made from persons within the said zonal cadre and who form part thereof. Since employees appointed in posts in the offices of the heads of departments do not form part of the local zonal cadre they are not entitled to be appointed by transfer to posts in the said local zonal cadre as any such appointment would be in violation of Para 5(1) of the Presidential Order. Since posts in the office of the Heads of Department are outside the purview of the Presidential order, local area reservation/reservation on the basis of residence in a part of the State, cannot be provided for such posts and consequently employees from all over the State, including those in subordinate offices who form part of a zonal cadre, cannot be excluded from consideration, for appointment to posts in the offices of heads of departments, merely on the basis of residence. Reliance placed on Notes (1) and (2) of Rule 3 of the Ministerial Service Rules 1998 is, therefore, misplaced. The mere fact that persons from subordinate offices are entitled to be appointed on transfer to posts in offices of heads of departments would not confer a similar right on employees, appointed to posts in offices of the heads of departments, to be considered for appointment by transfer to posts in subordinate offices, which are organized as zonal cadres under Para 3(3) of the Presidential Order. The distinction is obvious. While posts, which are not governed by the provisions of the Presidential Order, cannot be extended the benefit of local area reservation, or reservation on the basis of residence in a part of the State, nor can employees, who form part of a local zonal cadre, be excluded from consideration, for appointment to such posts, merely on the basis of residence in a part of the State, persons holding posts, which fall outside the scope of the Presidential Order, cannot claim parity and seek appointment to posts in a localized zonal cadre, for a local cadre, under Para 5(1) of the Presidential Order, is a separate and distinct unit for the purpose of promotion, appointment, seniority etc,. Persons who do not belong to the local zonal cadre are not entitled to claim parity under Article 14 and 16 of the Constitution of India, for being considered for appointment by transfer to posts in such local cadres, since clause (10) of Article 371-D gives over- riding effect to the Presidential Order over other provisions of the ` 12 PSKJ & NNRJ WPNo.5477 of 2024 Constitution including Part III thereof. The plea of discrimination must, therefore, fail.
Under Clause 2(a) of Article 371-D an order made by the President, under clause (1) of Article 371-D, may require the State Government to organize any class or classes of posts in any civil service of the State, or to such class or classes of civil posts under the State, into different local cadres for different parts of the State and allot, in accordance with such principle and procedure as may be specified in the order, the persons holding such posts to the local cadres so organized. Under Clause 2(b)(iii) the order made by the President, under clause (1) of Article 371-D, may specify any part or parts of the State which shall be regarded as a local area for the purpose of admission to any University within the State or any other educational institution which is subject to the control of the State Government. While organization of local cadres falls under clause 2(a) and 2(b)(i) of Article 371-D, local area reservation for admissions to universities, or other educational institutions subject to the control of the State Government, falls under clause 2(b)(iii) of Article 371-D. Since the areas of operation differ, separate orders were made by the President i.e., (1). The A.P. Educational Institutions (Regulation of Admission) Order, 1974; and (2). The A.P. Public Employment (organization of local cadres and regulation of direct recruitment) Order, 1975. As both these orders operate in different areas, the provisions of one order cannot be read into the other. Reading the provisions of the educational order into the provisions of the public employment order would, in effect, amount to adding or substituting words in the public employment order. No right, must less a fundamental right, can be claimed by any person to be treated as belonging to a local cadre under the Presidential Order nor can Para 8, which prescribes the extent of reservation to posts to be filled in by direct recruitment, be read into Para 5(1), either for promotion or appointment by transfer.
It is a cardinal principle of interpretation of statutes that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning. (Gurudevdatta VKSSS Maryadit Vs. State of ` 13 PSKJ & NNRJ WPNo.5477 of 2024 Maharashtra. The legislature may be safely presumed to have intended what the words plainly say. (Bhaiji Vs. Sub-Divisional Officer, Thandla). What is to be borne in mind is what has been said in the statute and what has not been said. A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided. (Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. Vs. Custodian of Vested Forests, Shyam Kishori Devi Vs. Patna Municipal Corpn, A.R. Antulay Vs. Ramdas Sriniwas Nayak, Dental Council of India Vs. Hari Prakash , J. P. Bansal Vs. State of Rajasthan and State of Jharkhand Vs. Govind Singh). The primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. (Unique Butyle Tube Industries Pvt. Ltd. Vs. Uttar Pradesh Financial Corporation. It is not for Courts to supply words to Para 5(1) of the Presidential Order. Courts should not, ordinarily, add words to a statute or read words into it which are not there, especially when a literal reading thereof produces an intelligible result. (Delhi Financial Corpn Vs. Rajiv Anand. There is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. Courts expound the law, they do not legislate. (State of Kerala Vs. Mathai Verghese, Union of India Vs. Deoki Nandan Aggarwal). A Judge is not entitled to add something more than what is there in the Statute by way of a supposed intention of the legislature. (Union of India Vs. Elphinstone Spinning and Weaving Co. Ltd). The legislative casus omissus cannot be supplied by judicial interpretative process. ((Maruti Wire Industries Pvt. Ltd. Vs. S.T.O., I.S.T. Circle, Mattancherry, Govind Singh. In interpreting a statute the court cannot add or amend by construction to make up deficiencies which are left there. (State of Gujarat Vs. DilipbhaiNathjibhai Patel). Courts are not entitled to read words into an Act unless clear reasons for it is to be found within the four corners of the Act itself. (The Union of India Vs. Braj Nandan Singh).
` 14 PSKJ & NNRJ WPNo.5477 of 2024 Since a local cadre (district/zone) constitutes a separate unit for the purpose of appointment, promotion, seniority etc., it is only from within the said local cadre can employees be considered for promotion/appointment by transfer to higher posts in the local cadre. On the other hand, employees from outside the local cadre are not entitled to be considered and any rule which so provides is liable to be struck down as ultravires Para 5(1) of the Presidential Order. It is necessary, in this context, to note that the A.P. Labour Subordinate Service Rules were made in exercise of the powers conferred by the Proviso to Article 309 of the Constitution. The opening words of Article 309, "subject to the provisions of this Constitution", limit the amplitude of that power. (B.S. Yadav Vs. State of Haryana [25] ). Exercise of power by the State Legislature to make laws under Article 309, or of the Governor to make rules under its proviso, are open to challenge on the ground of violation of the provisions of the Constitution. (Chairman, Railway Board Vs. C.R. Rangadhamaiah). The legislative authority and the Rule making power to regulate recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of a State under Article 309, is also qualified by the declaration made in Article 13(2), that any law, which takes away or abridges the rights conferred by Part III shall be void. (Behram Khurshid Pesikaka Vs. State of Bombay). Since the rules, made in exercise of the powers conferred by the Proviso to Article 309 of the Constitution of India, are "subject to the provisions of the Constitution" and under Clause (10) of Article 371-D, the provisions of the Presidential Order shall have effect notwithstanding anything contained in any other provision of the Constitution, a rule made under the proviso to Article 309 contrary to the Presidential Order is liable to be struck down."
8. Learned Senior Counsel finally prays this Court to declare Rule-3 of the Telangana State Commercial Tax Services Rules issued vide G.O.Ms.No.360, dated 23.04.1994 (adapted by Government of Telangana State under Section 101 of A.P. ` 15 PSKJ & NNRJ WPNo.5477 of 2024 State Re-Organization Act, 2014) insofar as it provides for appointment by transfer from category of Section Officers / Private Secretaries in Telangana Secretariat and thereby reserving 10% of the posts of CTOs, as arbitrary, illegal and consequently to call for willingness of Section Officers / Private Secretaries for appointment by transfer to the post of Commercial Tax Officers, vide, U.O.Note No.8390/SU.I/A1/2023, dated 12.12.2023.
9. Learned Government Pleader for Services-I appearing for respondent Nos.1 and 2 submits that appointment by transfer of Section Officers/Private Secretaries to the post of Commercial Tax Officer and the note thereunder reserving 10% for the post to Section Officers/Private Secretaries to Telangana State Secretariat is existing as per Rule 3 of the Telangana State Commercial Tax Service Rules. In fact, para-5 (1) of the PresidentialOrder, 2018 states that each part of the State has a local cadre in respect of any category of posts and shall be a separate unit for the purpose of recruitment, appointment, discharge and such other post as may be specified by the State Government in respect of that category of post.
` 16 PSKJ & NNRJ WPNo.5477 of 2024
10. Learned Government Pleader further contended that in earlier Presidential Order, 1975, Rule (5)(1) defines Local Cadres and Transfer of Persons, which reads that "Each part of State, for which a local cadre has been organized 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." Whereas Rule 5(1) of the present Presidential Order i.e., the Telangana Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order-2018, defines Local Cadres and Recruitment or appointment of persons, which reads thus "Each part of State for which a local cadre has been organized in respect of any category of posts, shall be a separate unit for the purpose of recruitment, appointment, discharge and such other matters as may be specified by the State Government."
11. Learned Government Pleader further contended that the petitioners misinterpreted Rule (5) of Presidential Order 2018 and failed to note that there is enabling provision provided in para 5(2)(b) of the Presidential Order, 2018 that the transfer or appointment by transfer of a person from any local cadre to ` 17 PSKJ & NNRJ WPNo.5477 of 2024 any office or establishment to which this Order does apply, vice- versa. As such, the persons from the post of Section Officer/Private Secretaries, Telangana Sate Secretariat, the Presidential Order, 2018 does not apply either by transfer or appointment by transfer to the post organized under local cadres.
12. Learned Government Pleader also further contended that the Government vide G.O.Ms.No.209, G.A.(SPF-II) Department, dated 04.08.2021 approved the scheme of local cadres in respect of Commercial Tax Department and the post of CTO falls in Multi Zonal Cadre and the contention of the petitioners that the persons holding post in the local cadres of Commercial Tax Department alone are entitled to be considered for appointment to higher post in Department in the local areas (District Zone and Multi Zone) is factually not correct and it is against para 5(2)(b) of Presidential Order, 2018.
13. Learned Government Pleader further contended that the Hon'ble Supreme Court in Jagannadha Rao's case (supra) held that employees working in the posts which are not localized cannot be appointed by transfer to the post organized into local cadre, as such appointments are against the ` 18 PSKJ & NNRJ WPNo.5477 of 2024 provisions of the Presidential Order, 1975. He further submitted that the Government had issued circular U.O.Note No.44232-B/SPF-A/2002, G.A.(SPF-A) Department, dated 15.02.2023 and instructed all the Secretariats and Heads of Departments to stop appointment by transfer of Section Officers, Assistant Section Officers, Superintendents etc., working in Secretariat and Heads of Departments to the post of Executive localized under Presidential Order, 1975. However, the said Presidential Order 1975 is superseded by the Presidential Order 2018.
14. Clause 5 2 (b) of the Presidential Order 2018 deals with the Local Cadres and Recruitment or Appointment of Persons, which reads thus:
"Clause 5 2(b) transfer or appointment by transfer of the person from any local cadre to any office or Establishment to which this Order does not apply, or Vice Versa."
15. Before going further, it is imperative to look at para No.5 of the Presidential Order, 1975 as well as Presidential Order, 2018. For more clarity, Para No.5 of two Presidential Orders extracted below for easy reference:
Presidential Order, 1975 Presidential Order, 2018
5. Local Cadres and Transfer of 5. Local Cadres and Recruitment or Appointment of ` 19 PSKJ & NNRJ WPNo.5477 of 2024 Persons:- Persons.-
(1) Each part of the State, for which (1) Each part of the State, for which a local cadre has been organized in a local cadre has been organized in respect of any category of posts, shall respect of any category of posts, be a separate unit for purposes of shall be a separate unit for recruitment, appointment, discharge, purposes of recruitment, seniority, promotion and transfer, and appointment, discharge and such such other matters as may be specified other matters as may be specified by the State Government, in respect of by the State Government, in respect that category of posts. of that category of posts.
(2) Nothing in this order shall (2) Nothing in this Order shall prevent the State Government from prevent the State Government from making provision for making provision for,-
(a) equitable opportunities to
(a) the transfer of a person from any persons in all local cadres in the local cadre to any Office or matter of promotion to higher posts;
Establishment to which this Order does not apply, or Vice Versa. (b) the transfer or appointment by transfer of a person from any
(b) the transfer of a person from local local cadre to any office or cadre comprising posts in any Office or Establishment to which this Order Establishment exercising territorial does not apply, or Vice Versa; jurisdiction over a part of the State to any other local cadre comprising posts (c) transfer of a person from in such part of Vice Versa. one local cadre to another local cadre on a reciprocal basis subject
(c) the transfer of a person from one to the condition that the person so local cadre to another local cadre where transferred shall be assigned no qualified or suitable person is seniority in the latter cadre with available in the latter cadre for where reference to the date of his transfer such transfer is otherwise considered to that cadre. necessary in the Public interest.
(d) the transfer of a person from one local cadre to another local cadre on a reciprocal basis subject to the condition that the persons so transferred shall be assigned seniority in the latter cadre with reference to the date of his transfer to that cadre.
16. The Supreme Court of India in the judgment of Jagannadha Rao's case (supra) at paragraph Nos.21 and 22 it was held as under:
` 20 PSKJ & NNRJ WPNo.5477 of 2024 "21. In Sadanandam's case (supra), while considering the legality of amended provisions of the Rules framed by the State Government and in sustaining the same, this Court was of the opinion that as the aforesaid rules had been framed under Section (3) of the Andhra Pradesh Ordinance 5 of 1983 read with paragraph 5(2)(a) of the Presidential Order, the conclusion of the Tribunal in striking down the rule is erroneous. The Court was of the opinion that mode of recruitment and category from which the recruitment to a service should be made are policy matters exclusively within the purview and domain of the executive and it would not be appropriate for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made. In our considered opinion, both the aforesaid reasons do not constitute a true interpretation of the provisions of the Presidential Order. At the outset, it may be noticed that Article 371-D (10) of the Constitution unequivocally indicates that the said Article and any order made by the President thereunder shall have effect notwithstanding anything in any other provision of the Constitution or in any other law for the time being in force. Necessarily, therefore, if it is construed and held that the Presidential Order prohibits consideration of the employees from the feeder category from other units then such a rule made by the Governor under the proviso to Article 309 of the Constitution will have to be struck down. Then again in exercise of powers under paragraph 5(2) of the Presidential Order if the State Government makes any provision, which is outside the purview of the authority of the Government under para 5(2) of the Order itself, then said provision also has to be struck down. Having construed the rules framed by the Governor under proviso to Article 309 of the Constitution from the aforesaid stand point, the conclusion is irresistible that the said rule to the extent indicated by the Tribunal is constitutionally invalid and its conclusion is unassailable. In the case in hand, the impugned provisions do not appear to have been framed in exercise of powers under paragraph 5(2) of the Presidential Order and as such the same being a rule made under proviso to Article 309 of the Constitution, the Presidential Order would prevail, as provided under Article 371-D (10) of the Constitution. Even if it is construed to be an order made under Paragraph 5(2) of the ` 21 PSKJ & NNRJ WPNo.5477 of 2024 Presidential Order, then also the same would be invalid being beyond the permissible limits provided under said paragraph. In this view of the matter, the Tribunal rightly held the provision to the extent it provides for consideration of employees of the Factories and Boilers units to be invalid, for the purpose of promotion to the higher post in the Labour unit and as such we see no justification for our interference with the said conclusion of the Tribunal and the earlier judgment of this Court in Sadanandam's case (supra) must be held to have not been correctly decided. As a consequence, so would be the case with Satyanarayana Rao's case (supra).
22. Notwithstanding our aforesaid conclusion, it would be in the interest of the Administration to have a channel of promotion for every service, so as to avoid stagnation at a particular level, subject however to the condition that the incumbents of a service are otherwise qualified to shoulder the responsibilities of the higher promotional post. The appropriate authority of the Government, therefore, should bear this in mind and consider the feasibility and desirability of continuing the supernumerary posts already created in the Boilers and Factories Department on a permanent basis, so that the employees from the lower echelon in the said Department have a promotional channel or, to make suitable promotional avenue at least upto some level, so that there would not be any discontentment amongst the employees in the concerned Department. The appeals are without any merit and are accordingly dismissed."
17. The Hon'ble Supreme Court has passed aforesaid judgment on 07.11.2001 based on the Presidential Order, 1975, wherein it has categorically held that that "if it is construed and held that the Presidential Order prohibits consideration of the employees from the feeder category from other units then such a rule made by the Governor under the proviso to Article 309 of the Constitution will have to be struck down,"
` 22 PSKJ & NNRJ WPNo.5477 of 2024
18. As there was no reference in the Presidential Order about 'appointment by transfer', the Hon'ble Supreme Court held that the impugned provisions do not appear to have been framed in exercise of power under para 5(2) of the Presidential Order, 1975, the word 'appointment by transfer' is incorporated in Clause 5(2)(b) of the Presidential Order, 2018. Therefore, the petitioners cannot rely on the judgment passed by the Hon'ble Supreme Court in Jagannadha Rao's case (supra).
19. Having regard to the above, this Bench is of the opinion that the mode of recruitment and category from which the recruitment should be made are policy matters exclusively within the purview and domain of the executive body and it would not be appropriate for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made. In our considered opinion, the aforesaid reasons do not constitute a true interpretation of the provisions of the Presidential Order, 2018. At the outset, it may be noticed that Article 371-D (10) of the Constitution of India unequivocally indicates that the said Article and any order ` 23 PSKJ & NNRJ WPNo.5477 of 2024 made by the President thereunder shall have effect notwithstanding anything in any other provision of the Constitution or in any other law for the time being in force.
20. It is pertinent to mention here that in the Presidential Order, 1975, there is no provision of promotion by transfer. The Andhra Pradesh Commercial Taxes Services Rules were issued vide G.O.Ms.No.360, Revenue (CT-I), dated 23.04.1994, which were adopted by the Government of Telangana under Section 101 of the A.P. State Re-Organization Act, 2014. Rule 3 of the said Rules deals with method of appointment. As per the said Rule, the provision of appointment by transfer was made applicable to the Section Officers and Private Secretaries to Government to the post of Commercial Tax Officer, providing 10% reservation. Subsequently, Clause 5 (1) of the Presidential Order, 2018 i.e., the Telangana Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order-2018, provides for transfer or appointment by transfer. It is also pertinent to mention here that neither the said clause 5 (1) of Presidential Order, 2018 nor G.O.Ms.No.360 issued on 23.04.1994, which was adopted by the Government of Telangana under Section 101 of the A.P. ` 24 PSKJ & NNRJ WPNo.5477 of 2024 State Re-Organization Act, 2014) was also never questioned having kept silent for all these years and present Writ Petition has been filed.
21. It is seen that Rule 3 of the Telangana State Commercial Tax Services Rules were issued vide G.O.Ms.No.360, dated 23.04.1994 is under challenge before this Court. Though preceding Presidential Order, 1974 of clause 5 (1) which is in consonance with para 5 (1) of the Presidential Order, 2018 as that being not in contravention to any of the provisions of the Presidential Order, 2018 or 1975, as such, the contention of the petitioners cannot be accepted on this ground also and the relief sought by the petitioners cannot be considered.
22. For the aforesaid reasons, this bench is of the opinion that as per Presidential Order, 2018, the respondent authorities have power to call for service particulars of Section Officers / Private Secretaries in Telangana Secretariat for transfer or appointment by transfer of a person from any local cadres to any office or Establishment. Therefore, Circular U.O.Note No.8390/SU.1/2003, dated 12.12.2003 calling for willingness of Section Officers and Private Secretaries for ` 25 PSKJ & NNRJ WPNo.5477 of 2024 appointment by transfer to the post of CTOs as per Rule-3 of the Telangana State Commercial Tax Service Rules is in accordance with the Presidential Order, 2018.
23. Accordingly, the Writ Petition is dismissed. I.A.Nos.3 and 4 of 2024 are ordered and the interim order granted by this Court on 12.06.2024 shall stand vacated. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this writ petition shall stand closed.
___________________________ JUSTICE P.SAM KOSHY _________________________________________ JUSTICE NARSING RAO NANDIKONDA Date:25.07.2025 YVL/SHA `