Holding

The amended Rule 3 is intra vires of the Presidential Order because para 5(2) expressly empowers the State Government to make provisions for transfers and promotions that may override the local‑cadre scheme of para 5(1).

Summary

The State of Andhra Pradesh appealed against two judgments of the Andhra Pradesh Administrative Tribunal that had declared Rule 3 of the Andhra Pradesh Treasury and Accounts Subordinate Service Rules, 1963 (as amended) to be violative of the 1975 Presidential Order issued under Article 371‑D. The petitioners argued that the amendment allowed promotion of officers from zones other than the zonal cadre, contrary to para 5(1) of the Order which treats each zone as a separate unit for promotion. The State contended that para 5(2) of the Order expressly empowers the State Government to make provisions for transfers and promotions that may override the local‑cadre scheme, and that the amendment was made under the authority of Article 309 of the Constitution. The Supreme Court held that the Tribunal had mis‑interpreted para 5(2) and that the State’s power to make such provisions is overriding, making the amended Rule 3 intra vires. Consequently, the Court set aside the Tribunal’s judgments and allowed the appeals, confirming the validity of the amended Rule 3.

Issues considered

The amended Rule 3 of the Andhra Pradesh Treasury and Accounts Subordinate Service Rules, 1963, is violative of the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975.
Whether para 5(2) of the Presidential Order gives the State Government overriding authority to make provisions that depart from the local‑cadre scheme prescribed in para 5(1).
Whether the Andhra Pradesh Administrative Tribunal erred in holding that the amendment was invalid for not specifying the sub‑paragraph of para 5(2) relied upon.

Legislation cited

Andhra Pradesh Ordinance 5 of 1983s. Section 3
Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975s. para 5(1), s. para 5(2)
Constitution of Indias. Article 309 (proviso), s. Article 371-D

Subjects

local cadrespresidential orderArticle 371-Dpublic employmentservice rulesadministrative lawexecutive discretionpromotiontransferconstitutional lawintra vires

Judgment

STATE OF ANDHRA PRADESH & ORS.
A
v.
V. SADANANDAM & ORS. ETC. ETC.

MAY 16, 1989

B [R.S. PATHAK, CJ. AND S. NATARAfAN, J.]
)
Civil Services: Services-Recruitment ta:--And method of-
Exclusively within the domain of Executive-Not for judicial bodies to
judge the wisdom of the Executive.
'
Andhra Pradesh Treasury and Accounts Subordinate Service
c Rules 1963-Rule 3 and G.O. Ms. No. 196 dated 17.6.83-Head
Accountants and Sub-Treasury Officers-Recruitment of-Amended
Rule 3-Whether conforms to para 5(2) of Andhra Pradesh Public
Employment (Organisation of Local Cadres and Regulation of Direct
Recruitment) Order 1975.
D
In these two appeals filed by the State of Andhra Pradesh against
the orders of the Andhra Pradesh Administrative Tribunal, the q.uestion
that arises for consideration is whether amended Rule 3 of the Andhra
Pradesh Treasury and Accounts Subordinate Service Rules 1963 ls
violative of the Andhra Pradesh Public Employment (Organisation of J
E Local Cadres and Regulation of Direct Recruitment) Order 1975. The
circumstances under which this question has arisen are stated herein-
below.

Prior to the filing of Representative Petitions Nos. 1595 and 788 of
1984 by the Respondents in·the Tribunal out of which these appeals
F have arisen, seven persons belonging to category 5 of Branch Ii of the -1
A11dhra Pradesh Treasury and Accounts Subordinate Service had pre-
sented a Petition before the Andhra Pradesh Administrative Tribunal
challenging the vires of Rule 3 of the Andhra Pradesh Treasury and
Accounts Subordinate Service Rules 1963, being violative of para 5(1) of
Andhra Pradesh Public Employment Order, issued by the President of
Q India under clauses (1) & (2) of Article 371-D of the Constitution, inter
alia on the ground that it made provision for promotion of clerks of the
Directorate of Treasuries and Accounts and Assistants of the Finance
Department of the Secretariat to the post of Head Accountants· and
Sub-Treasury Officer which posts had become Zonal posts after the
promulgation of Presidential order. According to them only the U.D.
H Accountants of the feeder sources of the Zone were eligible for consi- .
342
STATE OF A.P. v. V. SADANANDAM 343

deration in that particular Zone for promotion to the rank of Head A
Accountant and Sub-Treasury Officer and not the personnel from the
other Zones, including U.D. Accountants of the Directorate.

The Tribunal held that by virtue of para 5(1) of the Presidential
order, for purposes of promotion, Zonal Cadre had to be treated as a
separate unit and consequently the posts of Head Accountants/Sub- B
Treasury Officers, could he filled up by promotion only on Zonal basis
and as such Rule 3 which specified various categories of posts without
reference to Zone as feeder posts for the purpose of promotion to the
r posts in question were inconsistent with para 5(1) of the Presidential
order. The Tribunal therefore declared that after the promulgation of
Presidential order, the provisions of Rule 3 would have to be reviewed c
so as to make them consistent with the provisions of the President.la!
order. The Tribunal further declared that various categories of feeder
posts including the posts of Assistant· Section Officers of the Secretariat
from which promotion to the posts of Head Accountants/Sub-Treasury
Officer could be made, could not be made operative after the promul-
gation of the Presidential order. After the aforesaid decision of 'D
the Tribunal, the State Government amended Rule 3 and gave it a
retrospective operation w.e.f. 18.10.1975.

The validity of the amended Rule was questioned by the Respon-
dents in the context of certain Assistant Section Officers in the Finance
Department (Secretariat Service) borne on Zone VII being appointed to E
the post of Sub-Treasury Officers borne on the Subordinate Offices
under the Directorate of Treasuries and Accounts borne on Zones I to
IV, by filing the said Representation Petitions before the Andhra
Pradesh Administrative Tribunal. It was again contended before the
Tribunal that the amended Rule 3 was violative of the Presidential
order. According to the State the amended Rule had been issued by the F
Governor in exercise of the power conferred c:-n him by the Proviso to
Article 309 of the Constitution and hence the validity of the Rule could
not be questioned by the Petitioners. It was further contended by the
State that the earlier G.0. was not violative of the Presidential order of
the provisions of Article 371-D, but even so, as it. was considered by the
Tribunal to be inoperative because the special provision did not G
explicitly state that they had been made in exercise of the authority
vested in the State Government under para 5(2) ·of the Presidential
order, the Government had set right the lacuna by framing the
amended Rule specifically in exercise of the powers conferred on
Government under para 5(2) of the Presidential order.
H
344 SUPREME COURT REPORTS [1989] 3 S.C.R.

The Tribunal held that the impugned G.O. 196 did not set out )
A
under which sub-para viz., sub-para (a), (b) or (c) in para 5(2) of the
Presidential order, the G .O. was issued ilnd therefore the amended
G.O. could not be upheld. The Tribunal also declared that there was no
justification for transferring a person who did not belong to concerneil
Zone to be inducted into that Zone, as that would defeat the underlying
B purpose of the Presidential order.

The State bas, therefore, preferred these appeals. Allowing the
appeals this Court,

HELD: That the Tribunal has failed to construe para 5(2) of the
C Presidential order in its proper perspective and give full effect to the
powers conferred thereunder on the State Government to make provi-
sions contrary to.the scheme of local cadres prescribed under para 5(1).
The words in para 5(2) viz., "nothing in this order shall prevent the
State Government from making provision for" sets out the over-riding
powers given to the State Government under the sub-para. Such over-
D riding powers have been given to the State Government in express terms
in ·recognition of the principle that public interest and administrative
exigencies have precedence over the promotional interests of the mem-
bers belonging to local cadres and zones. [353C-E]

In order to make the provisions of old rule to have currency even
E after the Presidential order was passed, the Government issued G.O.
Ms. No. 728 on l.11.75. The Government has issued G.O. Ms. No. 196
dated 17 .6.83 for amending Rule 3 so as to make the Rule conform to
the requirements of para 5(2) of the Presidential order. [3548, C-D]

The mode of recruitment and the category from which the recruit-
F ment for a service should be made are all matters which are exclusively
within the domain of the Executive. It is not 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 as they are matters of policy decision falling exclusively within the
purview of the Executive. [3558]
G
The question of filling up of posts by persons befonging to other
local categories or zones is a matter of administrative necessity or exi-
gency. When the rules provide for such transfers being effected and
when the transfers are not assailed on the ground of arbitrariness or
discrimination the policy of transfer adopted by the Government cannot
H be struck down by Tribunals or Court of Law. [355C]
STATE OF A.P. v. V. SADANANDAM INATARAJAN, J.I 345

Rule 3 of the amended Rule declared to be intra vires of the, A
f Presidential Order. [355E-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3490-91
of 1987.

From the Judgment and Order dated 5.3.1986 and 1.4.1986 of B
( the Andhra Pradesh Administrative Tribunal, Hyderabad in R.P. Nos.
1595 of 1983 and 788 of 1984.

P.A. Choudhary, T.V.S.N. Chari, Ch. Badrinath and Mrs.
Sumitha Rao for the Appellants.

C. Seetharammayya, B. Parthasarthi and A. Subba Rao for the c
Respondents.

The Judgment of the Court was delivered by

NATARAJAN, J. These appeals by the State of Andhra Pradesh D
are directed against the judgments of the Andhra Pradesh Administra-
tive Tribunal, Hyderabad, in R.P. Nos. 1595 and 788 of 1984. Origi-
nally, the Government of Andhra Pradesh, in purported exercise of its
powers under Clause 5 of Article 371-D of the Constitution passed an
l order G.O. Ms. No. 215 dated 14.7.1986 to annul the two judgments
of the Tribunal. On 20.12.1986, this' Court negatived the powers of E
annulment assumed by the State Government by striking down Clause
5 of Article 371-D and the proviso thereto as being opposed to the
basic structure of the Constitution. Thereafter, the State has pre(erred
these appeals by special leave against the judgments of the Adminis-
trative Tribunal.
F
What falls for consideration· in these appeals is whether amended
Rule 3 of the Andhra Pradesh Treasury and Accounts Subordinate
Service Rules 1963 (hereinafter referred to as the Rules) is violative of
the Andhra Pradesh Public Employment (Organisation of Local
Cadres and Regulation of Direct Recruitment) Order, 1975 (herein-
after referred to as the Presidential Order) issued on 18.10.1975 by the G
President of India under clauses 1 and 2 of Article 371-D of the
Constitution.

The validity of the amended Rule was questioned in the context
of certain Assistant Section Officers in the Finance Department of the
Government of Andhra Pradesh (hereinafter referred to as the H
346 SUPREME COURT REPORTS [1989] 3 S.C.R.

A Secretariat Officers) borne on zone VII being appointed to the post of
Sub-Treasury Officers borne on the Subordinate Offices under the }
Directorate of Treasuries and Accounts (hereinafter referred to as the
Local Cadre) borne on zones I to IV. For a proper appreciation of the
matter, it is necessary that Rule 3 before and after amendment and the
B Presidential Order are set out.

Under Rule 3 of the Rules, the posts of Head Accountants and )
Sub Treasury Officers could be filled up by any of the following
methods:

(i) By direct recruitment;
c
(ii) By promotion from category 3, 4 or 5 of Branch II or
from category 3 of Branch I, III, IV, VI or category 2 of
Branch VII; and ·

D (iii) By transfer from among the U.D. Clerks (now called
Assistant Section Officers) in the Finance Department of
the Secretariat.

Rule 3 thus made provision for the posts of Head Accountants and Sub
Treasury Officers being filled inter alia by:
E.
Promotion of Upper Division Clerks of the Directorate of
J
Treasuries and Accounts & Transfer from among the As-
sistant Section Officers in the Finance Department of the
Secretariat.

However as per other Rules, only 4 Assistant Section Officers, at any
F
given time were eligible for being recruited as Sub Treasury Officers.

On 18.10, 1975, the Presidential Order came to be passed. Para 3
of the Order which enjoins the State Government to organise the posts
under the State into different local cadres reads as follows:
Cl "3. Organisation of Local Cadres-( 1) The State Govern-
ment shall, within a period of twelve months from the com-
mencement of this Order, organise classes of posts in the
civil services of, and classes of civil posts under the State
into different local cadres for different parts of the state to
the extent, and in the manner, hereinafter provided."
STATE OF A.P. v. V. SADANANDAM [NATARAJAN, J.] 347

Para 5 which deals with local cadres and transfers of persons consists of
-( 2 sub-paras. The para reads as follows:
A
'
"5. Local Cadres and transfers 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 B
~ separate unit for purposes of recruitment, appointment,
discharge, seniority, promotion and transfer, and such
other matters as may be specified by the State Govern-
ment, in respect of that category of post.
t (2) Nothing in this Order shall prevent the State Govern-
men! from making provision for- c /

-}
(a) the transfer of a person from any local cadre to any
Office or Establishment to which this Order does not ap-
ply, or vice-versa;
D
(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; and

(c) the transfer of a person from one local cadre to another E
local cadre where no qualified or suitable person is avail-
able in the latter cadre or where such transfer is otherwise
considered necessary on the public interest.

A fourth clause was subsequently inserted as per
w-
"}•
G.O. Ms. No. 34 G.A.D. (S.P.F.) dated 24.1.81 and it
reads as follows:
F'

( d) the transfer of a person from one local cadre to another
local as reciprocal condition 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 G
cadre." ·

, Thereafter, the Government of Andhra Pradesh by 6.0.P. No.
728 General Administration S.P.W.A. Department dated 1.11.1975
issued various instructions in relation to the aforesaid Presidential
Order including para 5 regarding inter-cadre transfers. H
348 SUPREME COURT REPORTS [1989] 3 S.C.R.

A Seven persons belonging to category 5 of Branch II of the A.P.
Treasury and Accounts Subordinate Service presented a representa-
tion petition no. 706 of 78 before the A.P. Adminisirative Tribunal for
declaring Rule 3 of the Rules ultra vires, in so far as it made provision
for promotion of Clerks of the Directorate of Treasuries and Accounts
B and Assistants of the Finance Department of the Secretariat to the
posts of Head Accountants and Sub Treasury Officers, in violation of
para 5( 1) of the Presidential Order. It was urged by them that with the )
promulgation of the Presidential Order, the posts of Head Accoun-
tants and Sub Treasury Officers had become zonal posts and as such
the zone will be the unit for recruitment, appointment, discharge,
seniority, promotion and transfer to such a zonal post under paragraph
c 5(1) of the Presidential Order. They claimed that the Service rules
issued under Article 309 of the Constitution, as they existed at the time
of the Presidential Order did not conform to the local cadres created
under the Presidential Order and hence the State Government had
issued G.O. No. 728 for suitable amendments being made to the
Service Rules in each service. They further claimed that only the U.D.
D
Accountants of the Feeder Sources of the zone alone are eligible for
consideration in that particular zone for promotion to. the rank of
Head Accountant and Sub Treasury Officer and not the personnel
from other zones including U.D. Accountants of the Directorate of
Treasuries and Accounts and Assistants of the Finance Department of ,
the Secretariat. In reply the State of A.P. while admitting that under J
the Presidential Order, the posts of Head Accountant/Sub Treasury
Officers were organised into zonal posts nevertheless contended that
the personnel from different categories mentioned under the Rules are
entitled for being considered for promotion to the rank of Head
Accountants/Sub Treasuries Officers by reason of para 5(2)(a) of the
Presidential Order and the detailed instructions contained in para
lO(a) of G.0.P. No. 728 dated 1.11.1975. The relevant portion in
G .O.P. No. 728 dated 1.11.1975 reads as follows:

"Though posts may be organised into separate local cadres,
para 5(2) of the Presidential Order provides that the State
Government may make a provis~o_n for transfer of persons
from, and to, local cadres under certain circumstances.
These are elucidated below:
)
(a) Transfer of a person from any local cadre to any office
or establishment to which the order does not apply,- or vice
H versa.
STATE OF A.P. v. V: SADANANDAM [NATARAJAN, J.I 349

This enables a provision being made for drawing perwns on A
tenure basis from different local cadres to fill equivalent
posts in Major Development Projects, Special Offices Of
Establishments etc. There are also cases where provision
exists for appointment of perwns in mofussil offices
by transfer to the offices of Heads of Departments. For
instance, a certain proportion of ministerial posts in the B
offices of Heads of Departments is to be filled by transfer
from ministerial categories in the subordinate otpces in the
districts. A provision of this kind is· protected under the
Presidential Order."

The full bench of the Tribunal considered the rival contentions of the
parties and came to the view that para 5(1) of the Presidential Order
c
made it clear that for the purpose of promotion, zonal cadre has to be
treated as a separate unit and consequently the posts of Head
Accountants/Sub Treasury Officers,. which have been declared as
zonal posts could be filled up by promotion only on zonal basis and
consequently Rule 3 of the Rules which specified various categories of D
posts without reference to zone as feeder posts for the purpose of
promotion to the posts in question are inconsistent with para 5(1) of
the Presidential Order. The Full Bench therefore held that "after the
promulgation of Presidential Order the provisions of Rule 3 referred
to above would have to be reviewed so as to make them consistent with
the provisions of the Presidential Order." The Full Bench, also cone E
sidered the scope and effect of G.O. No. 728 dated 1.11.75 and held as
follows:

''In our opinion; once this point is conceded., the .con-
tents of paragraph lOofG.O. (P)No. 728dated 1.11.1975
cited by the respondents in this respect would be properly F
understood. What that paragraph clearly suggests is that
under paragraph 5(2} of the Presidential Order it is open to'
the State Government to authorise transfer of a perwn
from any local cadre to any office or establishment to which
the order does not apply or vice versa. It is in this context
that the particular paragraph clarifies the types of transfers G
which the Government would authorise. The sentence "a
provision of this kind is protected under the Presidential
Order" occurring in that paragraph has, therefore, to be
read as conveying that a provisum of this kind could .be
made by the State Government under paragraph· 5(2) of the
Presidential Order. Apparently the respondents· have mis- H
350 SUPREME COURT REPORTS [1989) 3 S.C.R.

interpreted this sentence to understand that the provision
A
of Rule 3 of A.P. Treasuries and Accounts Subordinate
Service Rules in question continues to be operative without
any specified provision being made in the rules in pursuance
of the authority given to the State Government under
paragraph 5(2) of the Presidential Order. This clearly
B cannot be the correct interpretation as discussed above.''
(Emphasis supplied)

Thus it came about that the Full Bench declared that the various
categories of feeder posts including Assistants, (now named Assistant
Section Officers of the Secretariat) from which promotion to the posts
of Head Accountants/Sub Treasury Officers can be made, cannot be
c made operative after the promulgation of the Presidential Order.

After the Full Bench of the Tribunal rendered its judgment hold-
ing that Rule 3 ceased to hav_e operative force after the Presidential
Order was made, the State Go~ernment amended Rule 3 and gave
D retrospective effect to the amended Rule with effect from 18.10.1975.
The amendment to the Rule was made in the following terms:

'The amendment hereby made shall be deemed to have
come into force on the 18th October, 1975.

E AMENDMENT

In the said rules, in the Table under Rule 3, in column (3)
against category (2) Head Accountants and Sub-Treasury
Officers of Branch-II for items (ii) and (iii), the following
items shall be substituted, namely:
F
(ii) By promotion from category 3, 4 or 5 of Branch II;

(iii) By transfer from among the category of Upper Divi-
sion Accountants (Senior Accountant~) of Branch I,
Branch III or Branch VI or Upper Division Accountants
G (Senior Accountants) of Branch-VII);

(iv) By transfer from among the category of Assistants
(Assistant Section Officers) of Finance and Planning
(Finance Wing) Department of the Secretariat."

Challenging the validity of the amended rule two representation
STATE OF A.P. v. V. SADANANDAM INATARAJAN, J.l 351

..fI petitions viz. R.P. No. 1595 of 83 and R.P. No. 788 of 84 came to be A
filed before the A.P. Administrative Tribunal. Once again, a plea was
raised that amended Rule 3 was also violative of the Presidential
Order. The State contended that the amended Rule had been issued
by the Governo~ in exercise cif the powers conferred on him by the
proviso to Article 309 of the Constitution and hence the validity of the B
Rule cannot be questioned by the petitioners. It was secondly
contended that the earlier G.O. was not violative of the Presidential
Order or the provisions of Article 371-D, but even so as it was
considered by the Tribunal to be inoperative because the special provi-
sions did not explicity state that they had been made in exercise of the
authority vested in the State Government under para 5(2) of the Presi-
dential Order, the Government had set right the lacuna pointed out by c
the Tribunal by framing the amended rule specifically in exercise of
the powers conferred on Government under para 5(2) of the Presiden-
tial Order.

The Tribunal held that what was challenged by the petitioners
D
was not the powers of the Governor to issue the statutory rule but the
Government's power to fill a zonal post by the method of transfer by a
person who did not belong to the zone in which the vacancy had arisen
by referring to para 5(2) of the Presidential Order in the Preamble of
l the Notifitation making the amendment. Dealing with this question
the Tribunal referred extensively to the judgment rendered by the Full
E
Bench of the Tribunal in the earlier case R.P. No. 708 of 78 and held
that the judgment of the Full Bench did not afford scope to the State
Government to pass a G.O. in conflict with para 5(1) of the Presiden-
tial Order and furthermore the impugned G.O. Ms. No. 196 did not
set out under which sub para viz. sub-para a, b or c in para 5(2) of the
Presidential Order the G.O. was issued and therefore the amended
F
G.0. cannot be upheld. It was also held by the Tribunal that there was
no justification for transferring a person who does not belong to
concerned zone to be inducted into that zone merely because such a
practice had existed in the past and moreover the underlying purpose
of the Presidential Order would be destroyed if the State Government
is allowed to fill up vacancies in zonal posts by a person not belonging
G
to that zone. It is the correctness of the view taken by the Tribunal that
is challenged in these appeals.

Mr. T.V.S.N. Chari, learned counsel for the State and Mr.
Seetaramiah, learned counsel for the respondents advanced arguments
in support of their respective ·contentions in the appeals.
H
35.2 SUPREME COURT REPORTS [1989] 3 S.C.R.

A Before we examine the correctness of the view taken by the
Tribunal striking down the amended Rule 3 as being violative.of the
Presidential Order, we may usefully recall the relevant provisions of
the Presidential Order which have to be borne in mind. As already
stated para 3(1) enjoins the State Government to organise various
classes of posts in the civil services and classes of civil posts under the
B State into different local cadres for different parts of the State in
accordance with the further provisions contained in para 3. For our
purposes it is unnecessary to refer to the other provisions of para 3
except to point out that the direction contained in para 3'( I) is not an
inexhorable one. Sub para 8 of para 3 makes provision for the Central
Government, if it is not practicable or expedient to organise local
cadres under the paragraph in respect of any non-gazetted category of
c posts in any department, to make a declaration to that effect, and it is
further provided that on such declaration being made, the provisions
of the para shall not apply to such category of posts. It is, however,
common ground that the posts of Head Accountants and Sub-Treasury
Officers have been constituted into Zones I to IV and the U.D. Assis-
D tan ts and Assistant Section Officers in the Finance Department of the
Secretariat have been organised for the city of Hyderabad into a sepa-
rate category falling under Zone VII. The question for consideration is
whether the U.D. Clerks of the Directorate and Assistant Section
Officers in the Secretariat falling under Zone VII can be transferred by
J
promotion to the local cadre posts in zones I to IV. The Tribunal has
E held that such transfers cannot be effected for the following reasons:

1. The reasons which weighed with the full Bench for striking
down the unamended Rule 3 will hold good for striking down of
the amended Rule 3 also.

2. The amendment to the Rule cannot be deemed to have been
regularly effected by the Government because the Rule does not
set out under which relevant clause viz. clause (a), (b) or (c) of
sub para 2 of para 5 of the Presidential Order the Government
has exercised its powers to amend the Rule.

G 3. The amendment sought to be effected by the Govt. would
have the effect of destroying the scheme of constituting separate
local cadres and separate zones contained in para 5(1) of the
Presidential Order.

4. There is no convincing reason as to why persons in the
H Directorate who do not belong to Zones I to IV should be in-
STATE OF A.P. v.. V. SADANANDAM [NATARAJAN, J.) 353

ducted into those zones and the system cannot be allowed to be A
continued merely because such a practice was in vogue prior to
the issue of the Presidential Order.

5. Since the amended Rule is virtually a repetition of the old
Rule, it cannot be legitimised merely because Government
claims to have amended the Rule in purported exercise of its B
powers under para 5(2) of the Presidential Order.

On a consideration of the matter, we find that the Tribunal has
clearly erred in everyone of the reasons given by it for striking down
the amended Rule 3.

In the first place, we must point out that the Tribunal has failed C
to construe para 5(2) of the Presidential Order in its proper perspec-
tive 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( I). The words of sub-para (2) of Para 5
viz. "nothing in this order shall prevent the State Government from O
making provision for" sets out the over riding powers given to the
State Government under the sub-para. Such over-riding powers have
been given to the State Government in express terms in recognition of
the principle that public interest and administrative exigencies have
precedence over the promotional interests of the members belonging
to local cadres and zones. Since Para 5(2) also forms a part of the E
Presidential Order, it forms part of the scheme envisaged for creating
local cadres and zones. The Tribunal was, therefore, in error in taking
the view that if the State Government was to exercise its powers under
Para 5(2) and make provision for promotion of VD Assistants in the
Directorate and Assistant Section Officers in the Secretari.at to be
transferred to posts i11 Zones I to IV, it will be the very negation of the F
creation of cadres and zones under Para 5(1) and it will be destructive
of the scheme underlying the Presidential Order. In fact the Tribunal
has realised the operative force of Para 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 RP No. 1595 of 1983 the Tribunal has stated
that since the amended .rule refers to Para 5(2) of the Presidential G
Order "it will no longer be open to the petitioners to attack the
amendment as was done in respect of the earlier amendment in the
previous RP". The Tribunal has thus noticed that the amended Rule
has been brought about by the Government in exercise of its powers
under Para 5(2) but it has failed to draw the logical inference following
therefrom. H
354 SUPREME COURT REPORTS 11989] 3 S.C.R.

As regards the view taken by the Tribunal that the reasons which
A
weighed with the Full Bench for holding that the unamended Rule
ceased to have operative force after the Presidential Order was made
'I
would have relevance even with reference to the amended Rule, the
Tribunal cannot be said to have acted correctly. The Full Bench was
concerned with the amended Rule 3 which was framed long before
B the Presidential Order was passed. In order to make the provisions of
the old Rule to have currency even after the Presidential Order was
passed, the Government issued G.O. Ms. No. 728 on l-ll-75. How-
ever, the Full Bench was of the view that the G. 0. did not conform to
the requirements of para 5(2) of the Presidential Order and therefore
the Full Bench held the old Rule cannot have operative force "without
any specific provision being made in the Rules in pursuance of the
c authority given to the State Government under para 5(2) of the Presi-
dential Order. .. It was in acceptance of this position the Government
had issued G.O. Ms. No. 196 dated 17.6.83 for amending Rule 3 so as
to make the Rule conform to the requirements of para 5(2) of the
Presidential Order. The Tribunal has failed to realise this position and
D has therefore committed the error of holding that the view taken by
the Full Bench with reference to the old Rule will continue to hold
good even with reference to the amended Rule. Another patent error
which the Tribunal has committed is in holding that G.O. Ms. No. 196
is not valid because it does not set out the relevant clause under which
the Government was exercising its powers under the Presidential
E Order. The Tribunal'.s observation is worded as under:

"In the impugned G.O. Ms. No. 196 supra, no particular
sub-paragraph has been invoked. The situation under
which each sub sub-para will be applicable has been stated.
Clearly provisions contained in sub sub para (b) and (c) are
F not attracted; much less sub sub-para (a). We are, therefore,
not convinced that recruitment by the method of transfer
could come under any one of the aforesaid provisions."

The observations of the Tribunal is manifestly wrong because G.O.
Ms. No. 196 clearly sets out that the Notification was being issued by
G the Governm~nt in exercise of its powers under Section 3 of the
Andhra Pradesh Ordinance 5 of 83 read with para 5(2)(a) of the Presi-
dential Order. The Tribunal has completely lost sight of the relevant
portion of the G. 0.

We are now only left with the reasoning of the Tribunal that
H there is no justification for the continuance of the old Rule and for
STATE OF A.P. v. V. SADANANDAM [NATARAJAN, J.] 355

personnel belonging to other zones being transferred on promotion to A
offices in other zones. In drawing such conclusions, the Tribunal .has
travelled beyond-the limits of its jurisdiction. We need only point out
that the mode of recruitment and the category from which the recruif-
ment to a service should be made are all matters which are exclusively
within the domain of the Executive. It is not for judicial bodies to sit in B
judgment over the wisdom of the Executive in choosing the mode of
recruitment or the categories from which the recruitment should be
made as they are matters of policy decision falling exclusively within
the purview of the Executive. As already stated, the question of filling
up of posts by persons belonging to other local categories or zones is a
matter of administrative necessity and exigency. When the Rules pro-
vide for such transfers being effected and when the transfers are not C
assailed on the ground of arbitrariness or discrimination, the policy of
transfer adopted by the Government cannot be struck down by Tri-
bunals or Court of law.

"In the light of our discussion, we find that the grievance expres-
sed by the State over the judgment of the Tribunal is well-founded. In D
so far as Civil Appeal No. 3491of87 is concerned, though there was no
direct challenge therein to the validity of the amended Rule 3, the
Tribunal has allowed the Representation Petition filed by the peti-
tioners because of the view taken by it in R.P. No. 1595 of 1983. Hence
l the judgment of the Tribunal in that case also has to be set aside.
E
In the result, we set aside the judgments of the Tribunal, and
allow both the appeals and declare Rule 3 of the amended Rule to be
intra vires of the Presidential Order. There will be no order as to costs.

Y. Lal • Appeals allowed .
F

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