PETITIONER:
A.K. NAZEER SAHEB & ORS.
Vs.
RESPONDENT:
A.P. PUBLIC SERVICE COMMISSION & ORS.
DATE OF JUDGMENT: 19/02/1998
BENCH:
SUJATA V. MANOHAR, D.P. WADHWA
ACT
HEADNOTE
JUDGMENT
JUDGMENTD.P. Wadhwa. J.
The appellants, numbering three, were directly recruited as Assistant Directors of Sericulture under The Andhra Pradesh Industries Service Rules by the Andhra Pradesh Public Service Commission after following the procedure prescribed. Their appointments were challenged before the Andhra Pradesh Administrative Tribunal (for short ‘the Tribunal’) by Inspectors of Sericulture, being respondents 4 to 7. Under the relevant Andhra Pradesh Industries Service Rules post of Assistant Director Sericulture is a promotional post from the Inspector Sericulture.
Respondents 4 to 7 who challenged the appointment of the appellants were also candidates for appointment as Assistant Directors Sericulture by direct recruitment but they were not able to quality. They challenged the appointment of the appellants on the following three grounds:
(1) According to the Rules, the
question of direct recruitment
arises only if there are more than
five permanent vacancies. If direct
recruitment is to be made for three
posts, therefore should be 15
permanent vacancies. There were not
so many vacancies.
(2) It will not be in public
interest to recruit candidates to
the posts of Assistant Directors of
Sericulture without practical
experience when candidates with
practical experience were
available.
(3) The proposal to make direct
recruitment affects the right of
the petitioners who are fully
qualified and eligible for
promotion.
Grounds 2 and 3 were not considered by the Tribunal in any detail as those appeared to be meaningless. As a matter of fact respondents 4 to 7 were initially appointed as Assistant Inspectors of Sericulture and subsequently promoted as Inspectors of Sericulture. These respondents when they were appointed as Assistant inspectors of Sericulture had not practical experience in Sericulture industry as envisaged in the Service Rules yet they were sent for 15 months training for a Diploma in Sericulture. It is not that the appellants did not possess the qualification prescribed for appointment to the post of Assistant Director of Sericulture, the only ground which found favour with the Tribunal in quashing their appointment was that there were no permanent posts of Assistant Director of Sericulture under the Rules and as such the appointment of the appellants was not legal. The impugned judgment of the Tribunal is dated March 27. 1989. The appellants filed a review petition before the Tribunal which was dismissed by the Tribunal by order dated August 9. 1989. The Tribunal affirmed its view that a substantive vacancy and a permanent post were not the same. In the impugned judgment dated March 27, 1989, the Tribunal observed as under:
"Admittedly, according to Rules,
appointment to the posts of
Assistant Sericulture Experts
redesignated as Assistant Director
of Sericulture can be made either
by direct recruitment or by
transfer from A.P. Industries
Subordinate Services. Appointment
by direct recruitment can be made
only when there are moer than five
permanent posts. According to the
Respondents, there are 30 posts of
Assistant Directors of Sericulture.
They have not stated how many of
these are permanent posts. They
have however stated that 17 posts
of Assistant Directors are
continuing for more than 10 years.
In the course of the hearing the
learned G.P. stated that there were
only two permanent posts. According
to the explanation below Rule 6 of
the A.P. State and subordinate
Service Rules these are in the
nature of substantive vacancies and
direct recruitment can be made
against such posts. But the
question is whether substantive
vacancies are synonymous with
permanent posts. In the course of
the hearing, the counsel for the
petitioner argued that a permanent
vacancy is different from a
substantive vacancy as defined in
the Explanation below Rule 6 of the
A.P. State and Subordinate Service
Rules. On the other hand, the
counsel for the Respondents argued
that there is no such difference
and that a substantive vacancy
should be deemed to be a permanent
post for purposes of the rules. In
this connection, they referred to
the Webster Dictionary
(Encyclopedic Edition) in which the
word ‘substantive’ is said to mean
permanent. It seems to me however,
the explanation below Rule 6 of the
State and Subordinate Service Rules
makes a distinction between
vacancies in the permanent cadre
and other substantive vacancies.
While all vacancies in the
permanent cadre are substantive it
cannot be said that all substantive
vacancies are permanent. The term
‘substantive’ seems to be broader
in connotation than the terms
‘permanent post’. The term
‘substantive vacancies’ cannot
therefore be regarded as synonymous
with permanent posts. While Rule 8
of the General Rules permits direct
recruitment against substantive
vacancies, according to the proviso
(6) below Rule 2 of the Industries
Service Rules direct recruitment
can be made only when there are
more than five permanent posts. It
is well established that where
there is a difference between a
General Rule and a Special Rule the
latter will prevail. In the
circumstance, I am of the opinion
that unless it is established that
there are more than five permanent
posts as distinguished from 5
substantive vacancies direst
recruitment is not permissible in
terms of these rules."
It is this reasoning of the Tribunal which is challenged before us and it is submitted by the appellants that this led to miscarrige of justice. At this stage we may refer to the relevant Rules on the subject .
(1) Andhra Pradesh Industries Service Rules
Rule 1. Constitution:- The service shall consist of the
following categories of Officers, namely:- Assistant Sericultural 1. By direct recruitments; or Expert 2. By transfer from category-I (redesignated as Assistant (Sericultural Inspector/ Director of Sericulture) Supervisors) or Class IX of
the A.P. Industries
Subordinate Service. Provided that :
(a)...................
(b)...................
(c)..................
(d)...................
(e)..................
(f) Appointment to the post of Sericulture Export by
direct recruitment shall be made only when there are
more than 5 permanent posts. Our of every four
permanent vacancies of Asstt. Sericulture Export the
third vacancy shall be filled or reserved to be filled
by direct recruitment.
(Ins. by B.O.Ms. No 315, Inds, Dt. 26.4.1973 w.e.f. 26
(2) Andhra Pradesh State and Subordinate Service Rules
Rule 6. Method of Recruitment:- Where the normal method
of recruitment to any service, class or category is
neither solely by direct recruitment nor solely by
transfer but is both by direct recruitment and by
transfer -
(a) the proportion or order in which the special
rules concerned may require vacancies to be filled by
persons recruited direct and by those recruited by
transfer shall be applicable only to substantive
vacancies in the permanent cadre;
(b) a person shall be recruited direct only
against a substantive vacancy in such permanent cadre
and only if the vacancy is one which should be filled
by a direct recruit under the special rules referred to
in clause (a);
Provided that for special reasons, direct recruitment
may also be made against the temporary posts.
(Added by G.O.Ms. No.739, GA (Ser-A), Dt.22-12.1984).
(c) recruitment to all other vacancies shall be made by
transfer:
Provided that nothing in this rule shall adversely
affect any person who on the date of issue of the
special rules referred to in clause (a) was a
probationer in such service, class or category, as the
case may be.
Explanation:- For the purpose of this rule,
notwithstanding anything contained in these rules or
special or ad hoc rules ‘substantive vacancies’ shall
mean all vacancies in the permanent cadre, all
vacancies in the posts which have been in existence for
more than 10 years. All vacancies in 75% of the posts
which have been in existence for more than 3 years but
less than 10 years and all vacancies in 50% of the
posts which have been in existence for more than one
year but less than 3 years.
(G.O.Ms.No. 310, G.A. (Ser.D).
Dt.24.5.1984 w.e.f. 8-3-1983).
Considering these Rules we think there can be hardly any scope for controversy raised in the matter. Requirements of filling up of three posts of Assistant Director Sericulture by direct recruitment are (1) Existence of more than 5 permanent posts in the cadre and (2) Possession of prescribed qualifications by the incumbent. There is no dispute that the appellants did possess the prescribed qualifications. Tribunal has noted that the State Government stated that there were 30 posts of Assistant Directors Sericulture but it was not stated as how many of these were of permanent posts though 17 posts had been continuing for the last more than 10 years. That being so under Explanation (amended w.e.f. 8.3.1983) to Rule 6 of the A.P. State and Subordinate Service Rules these 17 posts would certainly be permanent posts in the permanent cadre of Assistant Director Sericulture and any vacancy in these posts would be a substantive vacancy to be filled by a direct recruit under Rule 6. Three vacancies for direct recruitment were thus clearly available. Contention raised by the respondents 4 to 7 therefore that there were no permanent posts of Assistant Director of Sericulture and therefore the direct recruitment by the A.P. Public Service Commission was illegal was not correct. Thus, while notifying the 3 vacancies for direct recruitment the ratio fixed in sub-rule II (f) of Rule 2 of the A.P. Industries Service Rules was followed keeping in view the availability of such number of permanent posts. As a matter of fact, it is the stand of the State Government that there were 4 posts of Assistant Director of Sericulture as against 3 which were available for direct recruitment and the A.P. Public Service Commission was informed accordingly on October, 31, 1988. It has also been pointed out by the State Government that there are standing orders issued by GOMs No.47 dated January 31, 1987 where in it was provided that there should be at least 30% of the posts were to be earmarked for direct recruitment and that there is yet another GOMs No. 739 dated 22.12.1984 which provides for direct recruitment for special reasons even against temporary posts. To this again the Tribunal was of the view that these GOMs could not be made applicable unless special rules were suitably amended.
The qualifications required for the post of Assistant Director Sericulture under direct recruitment are a degree in Botany, Zoology, Agriculture of any recognised University with Diploma in Sericulture of a recognised Institute. The State Government has also pointed out that the contention of the respondents 4 to 7 that it would not be in public interest to recruit Assistant Director of Sericulture by direct recruitment without having practical experience was also not correct as by GOMs 315 dated April 16, 1973 in Rule 7(ii) it had been added that the candidate selected by direct recruitment to the post of Assistant Sericulture Expert Assistant Director of Sericulture) shall during the period of probation and before posted with regular duty would undergo a course of training for a period of 6 months in Mulberry cultivation, silkworm rearing and silk reeling. As noted above post of Assistant Director of Sericulture is a promotional post from Inspector of Sericulture and respondents 4 to 7 would certainly be considered for promotion in due course on merit to fill up the post of Assistant Director of Sericulture available to be filled for by promotion. There is no dispute that post of Assistant Sericulture Expert is redesignated as Assistant Director of Sericulture and in our view the Tribunal unnecessarily raised this controversy. In the petition filed by the respondents before the Tribunal they themselves sought a declaration that the rights of the petitioners and other to have their cases considered for promotion to the post of Assistant Director of Sericulture (Assistant Sericulture Expert) could not be taken away by making direct recruitment to the said posts contrary to the Statutory Rules and they had also sought quashing of the advertisement No. 3/88 dated 7.5.88 of the Andhra Pradesh Public Service Commission published in Deccan Chronicle dated 12.5.88 so far as it related to the filling up of the posts of Assistant Director of Sericulture. Thus the whole controversy which arose before the Tribunal was if the substantive vacancies were synonymous with permanent posts. The Tribunal held that the term ‘substantive’ seemed to be broader in connotation and substantive vacancies could not therefore be regarded as synonymous with permanent posts under the Rules. This, according to us, is not correct. The Tribunal, in our view, quite unnecessarily raised of its own difference between special and general laws. Constriction of A.P. Industries Service Rules and the A.P. State and Subordinate Service Rules has to be done harmoniously and as a matter of fact there is no conflict between the two set of Rules. The appellants are right in their submission that substantive vacancies are synonymous with the vacancies in permanent posts. The three appellants, being the directly recruited Assistant Director Sericulture, have filled the substantive vacancies in the permanent cadre of the Assistant Directors Sericulture.
In this view of the matter 3 posts of Assistant Director of Sericulture were clearly available to be filled by direct recruitment to which the appellants have been appointed. We, therefore, allow the appeals, set aside the impugned order of the Tribunal holding otherwise and would dismiss the petitions filed by the respondents 4 to 7 before the Andhra Pradesh Administrative Tribunal.