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TMI Blog2001 (11) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... nder:- Prior to the formation of the State of Andhra Pradesh on 1.11.1956 and thereafter, the Labour and Factories Department consisted of 3 units, namely, Labour, Factories and Boilers. The employees belonging to the ministerial cadres in all the 3 units had a channel of promotion to higher non-technical executive posts like Assistant Inspector of Labour, District Inspector of Labour etc. Further promotional avenues led to the posts of Assistant Commissioner of Labour, Deputy Commissioner of Labour, Joint Commissioner of Labour and Additional Commissioner of Labour. On 16.9.1963 Factories Unit in the department was bifurcated and subjects relating to Shops and Establishment Act, Minimum Wages Act, Motor Transport Workers Act and Payment of Wages Act in respect of non-factory establishments were transferred to the Labour unit. On 8.12.1965 one more unit, namely, Establishment Unit was created in the Labour Department by transferring non-technical posts of District Inspector of Labour (re- designated as Labour Officer) and Assistant Inspector of Labour (re- designated as Assistant Labour Officer) from the Factories Wing. Prior to this arrangement the aforesaid non-technical posts we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment as on 20.7.1982 and the concession will be withdrawn in respect of persons appointed thereafter in the Factories and Boilers department. The said concession was extended to the last person in the department by a memorandum dated 19.5.1983. By G.O.Ms.No.72 Government issued Rules under proviso to Article 309 making Senior Assistant belonging to the Factories and Boilers departments as well as Labour department eligible for appointment by transfer to the post of Assistant Labour Officer/Assistant Inspector of Factories. These were treated to be zonal non-gazetted posts, unit of appointment being the zone. In G.O. Ms 170 Rules under proviso to Article 309 were issued constituting the posts of Labour Officer into multi- zonal cadre posts. 3. Ministerial employees of the Labour department challenged the Rules issued in G.O.Ms 72 dated 25.2.1986 and G.O.Ms.117 dated 28.5.1986 before the Tribunal. A Full Bench of the Tribunal allowed the petitions and declared that the impugned Rules to the extent they enable the ministerial employees of the Factories and Boilers department or any other department to be considered for appointment to the posts in Labour department are violative of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to higher posts in the department. Accordingly, the Rules were held to be violative of Article 371-D. 5. When the matter was placed for hearing after grant of leave reliance was placed by learned counsel for the appellants on the decisions in V. Sadanandam (supra) and B. Satyanarayana Rao (supra) to contend that this Court has upheld similar provisions which have been struck down by the Tribunal as void. However, the Bench hearing the appeals expressed doubt about the correctness of the view expressed in these cases and as noted above the appeals were directed to be placed before a 3 Judges Bench. 6. Mr. P.N. Mishra, learned senior counsel appearing for the appellants submitted that the two decisions referred to above were squarely applicable to the facts of this case. In any event the Rules have been made in consonance with the Presidential Order and there is no inconsistency. Para 5(2) of the Presidential Order authorises the State Government to pass necessary orders in the circumstances indicated in the said paragraph. According to him, public interest is paramount in the case and taking into account the background facts it was felt by the Government that in order to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service of, or any 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 principles and procedure as may be specified in the order the persons holding such posts to the local cadres so organized; (b) specify any part or parts of the State which shall be regarded as the local area - (i) for direct recruitment to posts in any local cadre (whether organised in pursuance of an order under this Article or constituted otherwise) under the State Government; (ii) for direct recruitment to posts in any cadre under any local authority within the State; and (iii) for the purposes of admission to any University within the State or to any other educational institution which is subject to the control of the State Government; specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made (i) in the matter of direct recruitment to posts in any such cadre referred to in sub-clause (b) as may be specified in this behalf in the order; (ii) in the matter of admission to any such University or other educational institution referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to be illegal or void or ever to have become illegal or void merely on the ground that the appointment, posting, promotion or transfer or such person was not made in accordance with any law, then in force, providing for any recquirement as to residence within the State of Hyderabad or, as the case may be, within any part of the State of Andhra Pradesh, in respect of such appointment, posting, promotion or transfer. (10) The provisions of this Article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force. Impugned Rules: (so far as relevant read as follows). O R D E R The following notification shall be published in the Andhra Pradesh Gazette:- NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Andhra Pradesh hereby makes the following Special Rules for the posts of Assistant labour Officers in the Andhra Pradesh Labour Subordinate Services: The rules hereby made shall be deemed to have come into force with effect from the 2nd September, 1985; RULES 1. CONSTITUTION: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn in the order of rotation. 3. APPOINTING AUTHORITY: the Deputy Commissioner of Labour in the respective zones concerned shall be the appointing authority for the posts of Assistant Labour Officers. 4. UNIT OF APPOINTMENT: For the purposes of recruitment, appointment, discharge for want of vacancy, seniority, promotion, transfer and appointment as full member, there shall be seven separate units as detailed below: ZONE I : Comprising the districts of Srikakulam, Vizianagaram and Visakhapatnam. ZONE - II : Comprising the districts of East Godavari, West Godavari and Krishna. ZONE III : Comprising the districts of Guntur, Prakasam and Nellore. ZONE IV : Comprising the districts of Kurnool, Cuddapah, Anantapur and Chittor. ZONE V : Comprising the districts of Adilabad, Karimnagar, Warangal and Khammam. ZONE VI : Comprising the districts of Ragareddy, Nalgonda, Mahaboobnagar, Medak and Nizamabad. ZONE VII : Twin cities of Hyderabad and Secundrabad. PRESIDENTIAL ORDER : (so far as relevant) reads as follows: The following Order of President of India, G.S.R. 524 (E), dated the 18th October, 1975 is republished :- THE ANDHRA PRADESH PUBLIC EMPLOYMENT (ORGANISATION OF LOCAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n For the purposes of this sub-paragraph, sub-paragraph (1) of paragraph 6, and sub-paragraph (1) of paragraph 8, a category shall be deemed to be equivalent to or lower than that of lower division clerk if the minimum of the scale of pay of a post belonging to that category or, where the post carries a fixed pay, such fixed pay, is equal to or lower than the minimum of the scale of pay of a lower division clerk. (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. (4) The posts belonging to each specified gazetted category in each department in each zone shall be organised into a separate cadre. (5) Notwithstanding anything contained in sub-paragraphs (3) and (4), the State Government may, where it considers it expedient so to do and with approval of the Central Government, organize the posts belonging to any of the categories referred to therein, in any department, or any establishment thereof, in two or more continuous zones into a single cadre. (6).. (7) In organizing a separate cadre in respect of any category of posts in any department for any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any of the posts in any department in that zone belonging to any non-gazetted category other than those referred to in such paragraph (1); (ii) for direct recruitment to posts in any local cadre comprising all or any of the posts in any department in that zone belonging to the categories of Tahsildars and Junior Engineers; (iii) for direct recruitment to posts in any cadre under any local authority within that zone, carrying a scale of pay, the minimum of which exceeds the minimum of the scale of pay of a lower division clerk but does not exceed ₹ 480/- per mensem; or a fixed pay which exceeds the minimum of the scale of pay of a lower division clerk but does not exceed ₹ 480/- per mensem; 8. The object of enacting Article 371-D appears to be two-fold:- (1) To promote equal development of the backward areas of the State of Andhra Pradesh, so far as to secure balanced development of the State as a whole. (2) To provide equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public service. This was observed to be so in Chief Justice of Andhra Pradesh vs. L.V.A. Dikshitulu (AIR 1979 SC 193). 9. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government servants defines transfer in the following terms: Rule 2(18): Transfer means the movement of a Government servant from one headquarter station in which he is employed to another such station, either (a) to take up the duties of a new post, or (b) in consequence of change of his headquarter. Though, definitions may differ and in many cases transfer is conceived in wider terms as a movement to any other place or branch of the organization, transfer essentially is to a similar post in the same cadre as observed by this Court in B. Varadha Rao vs. State of Karnataka (AIR 1987 SC 287). It is now well settled that a government servant is liable to be transferred to a similar post in the same cadre which is a normal feature and incidence of government service and no government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified non-transferable post. No transfer is made to a post higher than what a Government servant is holding. In other words, it is generally a lateral and not vertical movement within the employers organization. 11. Strong reliance has been placed in para 15 of Sadananda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd not of promotion. It would be hazardous to accept the contention of the appellants that promotion is included in the expression transfer and no assistance can be availed from the distinction made in para 5(1) of the Order. No provisions or word in a statute has to be read in isolation. In fact, the statute has to be read as a whole. A statute is an edict of the legislature. It cannot be said that without any purpose the distinction was made in para 5(1) between transfer and promotion and such distinction was not intended to be operative in para 5(2). The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid as to what has been said as also to what has not been said. See Mohd. Ali Khan vs. Commissioner of Wealth Tax, New Delhi (AIR 1997 SC 1165) and Institute of Chartered Accountants of India vs. M/s. Price Water House (AIR 1998 SC 74). As a consequence a construction which requires for its support addition or substitution of words or which resorts for rejection of words as meaningless has to be avoided. As stated by the Privy Council in Robert Wigram Crawford vs. Richard Spooner (1846 (6) Moore PC 1) We cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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