Holding

The State Government may fill vacancies for Regional Transport Officer by transfer under paragraph 5(2) of the Presidential Order, and the earlier decision in State of A.P. v. V. Sadanandam is binding.

Summary

The appeal concerned whether vacancies for Regional Transport Officer in Andhra Pradesh could be filled by transferring Section Officers of the Secretariat and Superintendents of the State Transport Authority, as permitted by Rule 3(a) of the Andhra Pradesh Transport Service Rules and paragraph 5(2) of the 1975 Presidential Order. The Andhra Pradesh Administrative Tribunal had set aside such appointments, holding them contrary to the Presidential Order. The Supreme Court examined the earlier decision in State of A.P. v. V. Sadanandam, which affirmed the State Government's overriding power to fill vacancies by transfer in the public interest. The respondents argued that the earlier decision was per incuriam and that para 5(2) did not authorize recruitment by transfer, but the Court rejected the per incuriam claim and upheld the earlier precedent. Consequently, the Court allowed the appeals, set aside the Tribunal's orders, and confirmed that the State Government may fill the vacancies by transfer under the Presidential Order.

Issues considered

Whether Rule 3(a) of the Andhra Pradesh Transport Service Rules permits recruitment of Regional Transport Officers by transfer from the Secretariat and State Transport Authority.
Whether paragraph 5(2) of the 1975 Presidential Order confers on the State Government the power to fill vacancies in a zone by transfer.
Whether the decision in State of A.P. v. V. Sadanandam is per incuriam and therefore not binding.

Legislation cited

Supreme Court Rules, 1966s. Order 7 Rule 2

Subjects

recruitment by transferservice rulespresidential orderper incuriampublic interestadministrative lawappeal

Judgment

GOVT. OF ANDHRA PRADESH AND ANR. A
v.
B. SATYANARAYANARAO (DEAD) BY LRS. AND ORS. ETC. ETC.

APRILS, 2000

[V.N. KHARE AND Y.K. SABHARWAL, JJ.] B

Andhra Pradesh Transport Service Rules : Rule 3(a).

Service Law-State of Andhra Pradesh-Department of Transport-
Post of Regional Transport Officer-Recruitment made inter-alia by transfer
of Section Officers of the Secretariat and Superintendents ofthe Office of State
c
Transport Authority-Validity of-Held recruitment was permissible under para
5(2) of the Presidential Order-Government has power to a fill vacancy in a
zone by transfer.

Practice and procedure-Rule of per incuriam-Meaning and applica-
D
bility of-Contention that V. Sadanandam's case was rendered per incuriam-
Rejection of:

Supreme Court Rules, 1966: Order 7 Rule 2.

Judicial decision-Binding effect of-Decision by a two Judges Bench
is binding on coordinate bench-Reference to a larger bench-Cannot· be E

- done on mere asking of a party.

State of A.P. v. V. Sadanandam, [1989] Supp. 1 SCC p. 576, applied.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.883 of 1993.
F
From the Judgment and Order dated 26.3.87 of the Andhra Pradesh
Administrative Tribunal, Hyderabad in R.P. No. 1586 of 1986.

K. Ram Kumar, G. Seshagiri Rao, H.S. Gururaja Rao, S. Muralidhar, L.
Nageswara Rao and S. Udaya Kumar Sagar for the appearing parties.
G
The following Order of the Court was delivered :

Permission to file S.L.P. granted. Impleadment application allowed.

Delay condoned.

Leave granted. H
1009
1010 SUPREME COURT REPORTS [2000] 2 S.C.R.
A The short question that arises in these appeals is whether the post of ·
Regional Transport Officer in the Department of Transport can be filled in by

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transfer of Section Officers of the Secretariat and Superintendents of the
Office of the State Transport Authority. The recruitment to the posts of
Regional Transport Officers are governed by the rules known as Andhra
Pradesh Transport Services Rules framed under Article 309 of the Constitution
B
(hereinafter referred to as 'the rules'). Rules 3(a) provides the method of
recruitment to the post of Regional Transport Officer. Rule 3(a) reads as
under:

Category IV : Regional Transport Officer -
c 1. By direct recruitment

2. By promotion from among Motor Vehicles Inspectors
·-
3. By recruitment by transfer from among :

D (i) Superintendents of the Office of the State Transport Au-
th01ity.

(ii) Superintendents of the Sub-ordinate Offices; and

(iii) Section Officers of the Secretariat except Law, Finance
E and Legislature Departments.

Rule 3(a) further provides that the first vacancy in the post of Regional
Transp01t is to go to the Motor Vehicle Inspector. The second vacancy is meant
for Superintendents of the Office of the State Transport Authority. The third
-
vacancy is to go to Motor Vehicles Inspectors. The fourth vacancy is
F earmarked for Section Officers of the Secretariat. Fifth vacancy is for
Superintendents of sub-ordinate offices of the Multizone. Sixth vacancy is for
Motor Vehicles Inspectors. Seventh vacancy is meant for Superintendents of
sub-ordinate offices of the Multizone. It is against second and fourth vacan- ,,
cies, the employees working as Superintendents in the Office of the State
G Transport Authority and as Section Officers in the Secretariat were appointed
as Regional Transport Officers by transfer. The said appointments were
challenged by the employees working in the office of the Regional Tr.ansport
Otlices.

The Andhra Pradesh Administrative Tribunal found that the appoint-
H ments of Superintendent in the office of State Transpoh Authority and Section
GOVT. OF A.P. v. B. SATYANARAYANA RAO 1011

Officers working in the Secretariat to the posts of Regional Transport Officers A
are contrary to the Presidential Order of 1975. Consequentially, their appoint-

- ments were set aside. It is against the said order and judgment the appointees
whose appointments were set aside and State of Andhra Pradesh are in appeal
before us.

Learned counsel for the appellant urged that this matter stands B
concluded by a decision of this Court in the case of State of A.P. v.. V.
Sadanandam, [1989] Supp. 1 SCC p.576 wherein it was held that overriding
power has been given to the State Government under paragraph 5(2) of the
Presidential Order in express te1ms in recognition of the principle that public
interest and administrative exigencies has precedence over the promotional c
interest of the members of the local cadres and zones and therefore, the State
Government by order of transfer can fill the vacancies on the posts in different
zones, as contemplated under the Rules.

Learned counsel for the respondent attempted to convince us that the
decision in the case of State of A.P. v. V. Sadanandam (supra) has to be ignored D
on the principle of per incurium as certain relevant provisions of the Rule<>

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were not considered in t11e said case, and in any case this case requires to be
referred to a large bench of three Judges. Rule of per incurium can be applied
where a Court omits to consider a binding precedent of the same court or the
superior court rendered on the same issue or where a court omits to consider
E
any statute while deciding t11at issue. This is not t11e case here. In State of A.P.
v. V. Sadanandam (supra) t11e controversy was exactly t11e same as it is here
and this court after considering paragraph 5 of the Presidential Order of 1975
held t11at the Government has power to fill a vacancy in a zone by transfer.
We, therefore, find that rule of per incurium cannot be invoked in the present
case. Moreover, a case cannot be refeITed to a larger Bench on mere asking F
of a party. A decision by two Judges has a binding effect on another coordinate
Bench of two Judges, unless it is demonstrated tliat the said decision by any
subsequent change in law or decision ceases to laying down a correct law. We,
tlierefore, reject tlie arguments of learned counsel for the respondents.
\

Learned counsel for the respondents then urged that in any case para
G
5(2) of the Presidential Order does not permit tlie recruitment by transfer and
' "'
the only power of the State Govt. under para 5(2) of the Presidential Order
is to pass simplicitor order of transfer on an equivalent post. This very
argument was also advanced in the case of State of A.P. v. Sadanandam
(supra). The relevant para 15 is extracted below : H
1012 SUPREME COURT REPORTS (2000) 2 S.C.R
A "In the first place, we must point out that the Tribunal has failed to
construe para 5(2) of the Presidential Order in its proper perspective and give
full effect to the powers conferred thereunder on the State Government to.make
provisions contrary to the scheme of local cadres prescribed under para 5( J).
The words of sub-para (2) of para 5 viz. 'nothing in this order shall prevent
..
the State Government from making provision for' sets out the overriding
.B
powers given to the State Government under sub-para. Such overriding
powers have been given to the State Government in express tenns in recog-
nition of the principle that public interest and administrative exigencies have
precedence over the promotional interests of the members belonging to local
cadres and zanes. Since para 5(2) also forms a part of the Presidential Order;
c it farms part of the scheme envisaged for creating local cadres and zanes. The
Tribunal was, therefore, in error in taking the view that if the State Govt. was
to exercise its powers under .para 5(2) and make provision for promotion of
U.D. Assistants in the Directorate and Assistant Section Officers in the
Secretariat to be transferred to posts in zones J to JV, it will be the very
negation of the creation of cadres and zones under para 5(J) and it will be
D
destructive of the scheme underlying the Presidential Order. Jn fact the
Tribunal has realised the operative force ofpara 5(2) to some extent but it has
failed to give full effect .to its realisation of the scope of Section 5(2). In para
12 of its judgment in R.P. No. 159511983 the Tribunal has stated that since
the amended rule refers to para 5(2) of the Presidential Order 'it will no
E longer be open to the petitioners to attack the amendment as was done in
respect of the earlier amendment in the previous R.P. '. The fribunal has thus
noticed that the amended rule has been brought about by the govemment in
exercise of its powers under para 5(2) but it has failed to draw the logical
inference following therefrom~"
F Following the decision in the case of State of A.P. v. Sadanandam
(supra), we reject the arguments of counsel for the respondents.

For the aforesaid reasons these appeals deserve to be allowed. We
accordingly set aside the judgments and orders under appeal. The appeals are
G allowed. There shall be no order as to costs.

T.N.A. Appeals.allowed.
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