judgement:
Appeal No. 1317 of From the Judgment and Order dated 21.1.1983 of the Madras High Court in C.R.P. No. 2797 OF 1979.
T.S. Krishnamurthy lyer, P.N. Ramalingam and A.T.M. Sampath for the Appellant.
section Balakrishnan, section Prasad, R. Raghavan and Vijay Kumar for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by special leave against the decision of a learned Single Judge of the Madras High Court in Civil Revision Petition No. 2792 of 1979 filed in that Court.
We propose to set out only the few facts necessary for the disposal of the appeal.
The appellant is the managing trustee of a trust.
The said trust owned two properties comprising 60 cents and 29 cents of land at Nagercoil in Tamil Nadu.
The said lands were leased by the appellant to one Padakalingam in 1930 who in turn assigned the lease in favour of one Ramaswamy Mudal iar in 1931.
Swami Mudaliar secured a further assignment of the said lease from the said Ramaswamy Mudaliar.
Swami Mudaliar put up a building on the said land and the respond ent herein purchased the building from him in 1943 for a sum of Rs. 4,475.
In 1944 the trust had leased out the said property in favour of the respondent for six years.
The terms of the lease are not relevant for the purposes of resolving the controversy raised before us.
As the respond ent failed to pay the rent to the Trust, the Trust fried a suit for ejectment against the respondent which suit was later transferred to the District Munsifs Court, Nagercoil.
The said suit was decreed by the learned District Munsif.
The decree for eviction was passed by the learned District Munsif on condition that the appellant will pay to the respondent the costs of the building or the superstructure.
This litigation was carried upto the High Court in Second Appeal.
The decree of the trial Court for eviction was upheld by the High 24 Court.
During the Pendency of the second appeal an applica tion was filed by the respondent under Section 9 of the Tamil Nadu Tenants Protection Act, 1921, as amended by Act XIX of 1955 and Tamil Nadu Adaptation of Laws Order, 1969 (hereinafter referred to as" the said Act").
The provisions of the said Act were extended to Nagercoil town in respect of non residential buildings by a government order which was published in the Gazette on June 29, 1975.
In the said application under Section 9 of the said Act the respondent claimed that the appellant should be directed to sell out of the said property, the land adjoining the said building and necessary for the beneficial enjoyment of the building on such terms and conditions as might be fixed by the Court.
This application was resisted by the appellant.
The District Munsif 's Court, Nagercoil, dismissed the said application of the respondent on the ground that a previous application with the said prayer had been dismissed and hence, a fresh application for the same relief was barred.
The respondent preferred an appeal to the SubCourt at Nagercoil which was allowed by the learned Subordinate Judge.
The High Court took the view that the decree in favour of the appellant was simple decree of ejectment and did not take away the right of the respondent to the building or superstructure.
It further took the view that the deposit of the amount of costs of the superstructure by the appellant did not affect the right of the respondent.
The respondent had not surren dered the possession of the property despite the deposit of amount of compensation by the appellant and the appellant had been compelled to resort to the court.
The execution proceedings were stopped.
The High Court held that in these circumstances, the respondent was entitled to make an appli cation under Section 9 of the said Act during the pendency of the execution proceedings.
The High Court also dismissed the review petition preferred by the appellant.
Only two submissions were made before us by Mr. Krishna murthy Iyer, learned Counsel for the appellant.
The first was that the respondent was not entitled to exercise his right to purchase the land immediately adjoining the super structure as might be required for the beneficial enjoyment of the said structure as the said structure had not been put up by him.
As we have already pointed out earlier, the said super structure was purchased by the respondent from Swami Mudali ar who had put up the said structure and was an assignee of the lease.
The respondent himself obtained a lease of the land subsequently.
We now come to the relevant provisions of the said Act.
We propose to set out the effect of the rele vant sections so far as it is necessary for the purposes of this case.
Under clause 25 (ii) (a) of sub section (4) of section 2, a person referred to in sub clause (i) who continues in possession after the determination of his tenancy agreement is included in the term 'tenant '.
The inclusive definition of the term 'tenant ' under Section 2(4)(ii)(a) takes within its ambit a tenant whose tenancy has been determined but continues to remain in possession.
Section 3 of the said Act provides that every tenant as defined under the said Act shall, on ejectment, be entitled to be paid as compensation the value of any build ing which may have been erected by him or by any of his.
predecessors in interest, or by any person not in occupation at the time of the ejectment who derived title from either of them, and for which compensation has not already been paid.
Again, very briefly stated, Section 9 prescribes that any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceedings under Section 41 of the , taken by the landlord may, within one month from the date of the Madras City Tenants ' Protection (Amend ment) Act, 1955, coming into force, or the date with effect from which this Act is extended to the municipal town or village in which the land is situated, or within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the court, the whole or part of the extent of land specified in the application, as set out in the said section.
It may be mentioned that the land which the tenant is entitled to require to be sold to him is the minimum land required for the beneficial enjoyment of the building.
Section 10 of the said Act makes the provisions under Section 9 applicable to cases where decree for eject ment has not been executed before the date from which the provisions of the Act are extended to the area in question.
Thus, although the decree for ejectment was passed against the respondent, as he had continued to remain in possession of the property and the decree had remained unexecuted till the date on which the provisions of the said Act had been extended to the area in question, the right of the respond ent under Section 9 was not lost.
As far as the superstructure is concerned, the said superstructure was put up by Swamy Mudaliar from whom the respondent had purchased it as pointed out earlier.
Thus, as far as the building or superstructure is concerned, the High Court was/entitled to take the view that it was put up by a predecessor in interest of the respondent.
In these circum stances, the respondent was certainly a tenant entitled to compensation under Section 3 of the said Act and was enti tled to make an application under Section 9 of the said Act.
The submissions of Mr. Krishnamurthy lyer to the contrary cannot be accepted.
26 It was next submitted by Mr. Krishnamurthy Iyer that, as averred in the special leave petition, although the respondent might have been in possession at the relevant time yet he has lost possession thereafter and hence, he had lost his right under Section 9.
This fact has not been pleaded in or considered in any of the courts below and hence, we decline to permit Mr. Krishnamurthy Iyer to raise this contention before us.
In the result, the appeal fails and is dismissed.
There will be no order as to costs.
The application of the re spondent under Section 9 will be disposed of on merits and according to law.
The amount of compensation which will have to be paid by the respondent to the appellant will be deter mined as provided under the said Act.
N.P.V. Appeal dismissed.

summary/full:
The lands in question owned by a Trust, of which the appellant was the Managing Trustee, were leased to respond ent.
On his failure to pay rent the Trust filed a suit for his ejectment.
The District Munsiff passed the decree on condition that the appellant would pay the respondent, costs of the building or superstructure, which had been built by the respondent 's predecessor in interest, and which the respondent had purchased from him.
The litigation went upto High Court, which ultimately upheld the decree.
During the pendency of second appeal, the respondent filed before the District Munsiff an application under Section 9 of the Tamil Nadu Tenants ' Protection Act, 1921 as amended by Act XIX of 1955 and Tamil Nadu Adaptation of Laws Order, 1969.
The provisions of the said Act were extended to the town in which the lands were situated.
In the said application he prayed for the issue of a direction to the appellant to sell to the respondent the said property, the land adjoining the building, as it was necessary for the beneficial enjoyment of the building.
The application was rejected on the ground that such a prayer had been rejected earlier.
The respond ent 's first appeal was allowed by the Subordinate Judge.
The respondent had not surrendered the possession of the proper ty despite the deposit of the compensation amount by the appellant and the execution proceedings had remained stayed.
Hence the appellant filed an appeal in .the
High Court which, however, held that the respondent was entitled to file the application under Section 9 of the Act during the pendency of the execution proceedings, and the right of the respondent had not been affected by the deposit of the compensation amount.
In the appeal before this Court, on behalf of the appel lant Managing Trustee, it was contended that the respondent was not entitled to exercise his right to purchase the land immediately adjoining the superstructure as might be re quired for the beneficial enjoyment of the said structure as the 22 said structure had not been put up by him, and 'that al though the respondent might have been in possession at the relevant time, he had lost the possession thereafter and hence he had lost his right under Section 9.
Dismissing the appeal, this Court, HELD: 1.1 Under Section 9 of the Tamil Nadu Tenants ' Protection Act, 1921, any tenant, as defined in Section 2(4)(ii)(a), who is entitled to compensation under Section 3, and against whom a suit in ejectment has been instituted or proceedings under Section 41 of the , taken by the landlord may, within one month from the date of the Madras City Tenants ' Protec tion (Amendment) Act, 1955, coming into force, or the date with effect from which this Act is extended to the municipal town or village in which the land is situated, or within one month after the service on him of summons, apply to the Court for an order that the landlord be directed to sell for a price to be fixed by the court, the whole or part of the extent of land specified in the application.
Section 10 of the Act makes the provisions under Section 9 applicable to cases where decree for ejectment has not been executed before the date from which the provisions of the Act are extended to the area in question.
[25 C E] 1.2 In the instant case, although the decree for eject ment was passed against the respondent, as he had continued to remain in possession of the property and the decree had remained unexecuted till the date on which the provisions of the said Act had been extended to the area in question, the right of the respondent under Section 9 was not lost.
[25 F] 1.3 As regards the superstructure, it was put up by the predecessor in interest from whom the respondent had pur chased.
Thus, the High Court was entitled to take the view that it was put up by a predecessor in interest of the re spondent.
[25 G] 1.4 In these circumstances, the respondent was certainly a tenant, within the meaning of Section 2(4)(ii)(a) of the Act, which takes within its ambit a tenant whose tenancy has been determined but continues to remain in possession, entitled to compensation under Section 3 of the Act and was, therefore, entitled to make an application under Section 9 of the Act.
[25 H, 25 B] 23 2.
The plea that although the respondent might have been in possession at the relevant time, but since he lost it thereafter, he lost his right under Section 9 cannot be allowed to be raised in this Court since this has not been pleaded in or considered in any of the courts below.
[26 A B]


judgement:
Appeal No.3985 of 1988.
From the Judgment and Order dated 31.12.1987 of the Andhra Pradesh Administrative Tribunal, Hyderabad in R.P.No. 967 of 1987.
WITH S.L.P. (C) No. 9290 of 1988 with S.L.P (C) No. 2150/87 CMP No. 25521/88 and C.A.1342/86 K.Madhava Reddy, C. Sitaramiah, P.P.Rao, G. Prabhakar, K.R. 31 Nagaraja, P.K. Rao, Ms. C.K. Sucharita, B. Kanta Rao, K. Ram Kumar, B. Krishna Prasad and T.V.S.N. chari (N.P.) for the appearing parties.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
The questions that arise for consideration in all these connected cases are confined only to some of the posts of civil services of Andhra Pradesh in view of certain special provisions applicable to these services.
Article 371D of the Constitution of India is peculiar to the State of Andhra Pradesh due to historical background.
It was enacted by the Constitution (Thirty Second) Amendment Act which applied only to the State of Andhra Pradesh, with a view to give effect to certain safe guards in the matter of employment opportunities for resi dents of Telangana region.
This Article empowers President to provide by order for equitable opportunities and facili ties for the people belonging to different parts of the State of Andhra Pradesh in the matter of public employment and in the matter of education.
This Article also provides for constitution of an Administrative Tribunal to receive representations for the redressal of the grievances and for passing necessary orders.
Accordingly the President of India made Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 ( 'Presidential Order ' for short) by virtue of which the State of Andhra Pradesh has been divided into six zones and local cadres of posts in respect of the local areas were created.
In respect of Andhra Pradesh Panchayati Raj Engi neering Service the two such zonal posts are junior Engineer and Assistant Engineer.
The main question that arises for consideration in these cases is whether the promotion from Junior Engineer to Assistant Engineer should be on the basis of Statewide list or the zonal list.
Some of the promotions made were questioned by the affected persons before the Administrative Tribunal which disposed them of indicating that such promotions should be made on the basis of the Statewide list.
The State of Andhra Pradesh has questioned the same in C.A.No. 1342/86, C.A.No. 3985/88 and S.L.P. (Civil) No. 9290/88 mainly on the ground that promotions should be confined to only within local cadres and zonal posts.
S.L.P. (Civil) No. 2150/87 is filed by two such Engineers whose representation was disposed of by the Tribu nal directing the Government to redetermine their positions in the Seniority list instead of giving a definite declara tion as prayed for by them.
Shri K.Madhava Reddy, learned counsel appearing for the State of Andhra Pradesh, submitted that both the posts of Junior Engineer and Assistant Engineer are zonal posts under the Presidential Order and the zonal seniority list has to be followed in the matter of promotions from 32 Junior Engineer to Assistant Engineer and not the Statewide seniority list of Junior Engineers.
He also submitted that all promotions made so far pursuant to certain orders should be treated as provisional and that the State Government should be permitted to review these promotions on the basis of the zonal seniority list and that all further promotions shall be made on the basis of the zonal seniority list.
According to the learned counsel, for the purpose of promo tion to the higher post of Executive Engineer which is not a zonal post, a Statewide seniority list of Assistant Engi neers of all zones should be prepared on the basis of which promotion to the post of Executive Engineer will be made.
Shri Sitaramiah, learned counsel appearing for respondents, submitted that Article 371D(2) refers only to direct re cruitment and the Presidential Order made under the said Article cannot make a departure and cannot be made applica ble for promotions also.
On the other hand, it is the State wide list that should be the basis for promotions.
In sup port of his submissions he invited our attention to the provisions of Article 371D and the Presidential Order and emphasised the word 'employment ' as occurring in the Article should be confined only to direct recruitment.
Shri P.P. Rao, learned counsel appearing for other set of respondents in the appeals filed by the State of Andhra Pradesh, submit ted that even if either of the lists is to form the basis for promotions his clients are not affected and their promo tions are being unnecessarily delayed.
Some of the Engineers of the Andhra Pradesh Panchayati Raj Engineering Service got themselves impleaded in the appeal filed by the State of Andhra Pradesh and Shri B. Kanta Rao appearing on their behalf supported the stand taken by the Government of Andhra Pradesh.
To appreciate these rival contentions it becomes neces sary to refer to some of the relevant provisions of Article 371D as well as the Presidential Order and some of the notifications made thereunder and the relevant provisions of the A.P. Panchayati Raj Engineering Service Rules.
On Novem ber 1, 1956 as a result of reorganisation of the States the erstwhile State of Hyderabad was trifurcated and Telangana region became a part of the newly formed State of Andhra Pradesh.
Certain safeguards were envisaged for the Telangana area in the matter of development and also in the matter of employment opportunities and education facilities for the residents of that area.
In the year 1957 the Public Employ ment (Requirement as to Residence) Act was enacted inter alia to provide for employment opportunities for residents of Telangana area.
Some of the relevant provisions were held to be unconstitutional by the Supreme Court due to a variety of causes.
The working of the safeguards gave rise to dis satisfaction sometimes in the Telangana area and sometimes in the other areas of the State and even led to violent agitations.
A consensus was arrived 33 among several leaders of Andhra Pradesh to make a concerted effort to analyse the factors which have been giving rise to the dissatisfaction and they suggested certain measures known as "Six Point Formula" and the same has been endorsed by the State Government.
A bill was brought forward to provide for necessary constitutional authority for giving effect to this formula and the same became the Constitution (Thirty Second) amendment Act under which Article 371D was introduced.
The relevant provisions of this Article for our purpose are as under: "371 D. Special provisions with respect to the State of Andhra Pradesh (1) The President may by order made with respect to the State of Andhra Pradesh provide, having regard to the requirements of the State as a whole, for equitable opportunities and facilities for the people belonging to different parts of the State, in the matter of public employment and in the matter of education and different provisions may be made for various parts of the State.
(2) An order made under clause (1) may, in particular: (a) require the State Government to organise any class or classes of posts in a civil 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 organised; (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 purpose of admission to any University within the State or to any other educational institution which is subject to the control of the State Government; XX XX XX (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.
" 34 It may be noted that clause (3) provides for constitu tion of an Administrative Tribunal.
Now we may note some of the relevant provision in the Presidential Order.
In para 2 definitions of the various expression used in the Order are given.
They read thus: "Para 2.
Interpretations: (1) In this Order, unless the co text otherwise requires: (a) xx xx xx (b) 'direct recruitment ' includes recruitment made on a temporary basis but does not include recruitment made in pursuance of any scheme approved by the State Government providing for the regularisation of the services of persons holding posts on a temporary basis before the commencement this order; (c) 'local area ' in relation to any local cadre, means the local area specified in paragraph 6 for direct recruitment to posts such local cadre, and includes, in respect of posts belonging the category of Civil Assist ant Surgeons, the local area specified in sub paragraph (5) of paragraph 8 of this Order; (d) 'local authority ' does not include any local authority which is not subject to the control of the State Government; (e) 'local cadre ' means any local cadre of post under the State Government organised in pursuance of paragraph 3, or constituted otherwise for any part of the State; (f) 'local candidate ' in relation to any local area, means a candidate who qualifies under paragraph 7 as a local candidate relation to such local area; (g) xx xx xx (h) 'Schedule ' means a Schedule appended to this Order; (i) xx xx xx (j) 'specified gazetted category ' means any gazetted category specified in the Third Schedule and includes any other gazetted category notifies as such by the Central Government; (k) xx xx xx (l) xx xx xx 35 (m) 'Zone ' means a zone specified in the Second Schedule comprising the territories mentioned therein.
xx xx xx Para 3.
Organisations of Local Cadres: (1) The State Government shall, within a period of eighteen months from the commencement 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.
(G.O. Ms. No. 794, G.A.(A) dated 12.11.1976) "Provided that, notwithstanding the expira tions of the said period, the president may by order, require the State Government, whenever he considers it expedient so to do, to orga nise any classes of posts in the civil serv ices of, and classes of civil posts, under the State into different local cadres for differ ent parts of the State." (Proviso is added as per G.O. Ms. No. 34, G.A.D. (SPFA), dated 24th January, 1981).
(2) The posts belonging to the category of Junior Assistant, and to each of the other categories equivalent to, or lower than that of a Junior Assistant in each department in each district shall be organised into a sepa rate cadre.
Explanation: For the purposes of this sub paragraph, subparagraph (1) of paragraph 6, and sub paragraph (1) of paragraph 8, a cate gory shall be deemed to be equivalent to or lower than that of a Junior Assistant if the minimum of the scale of pay, of a post belong ing to a category or where the post carries a fixed pay, such fixed pay equal to or lower than the minimum of the scale of pay of a Junior Assistant.
(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 Govern ment may, where it considers it expedient to do so and with the approval of the Central Government, organise the posts belonging to any of the categories 36 referred to therein, in any department, or any establishment thereof, in two or more continu ous zones into a single cadre.
xx xx xx Para 4.
Allotment of persons: (1) Persons holding posts required to be organised into local cadres shall be allotted to such cadres by the State Government or any officer or authority authorised by it in this behalf in accordance with the principles and procedure hereinafter specified.
(2) In allotting persons to local cadres due regards shall be had to all or any of the following, namely: (a) the administrative needs of the posts in the local cadres; (b) the need for the composition of balanced local cadres with reference to age and senior ity, groups; (c) the length of service of the persons concerned in the part of the State for which the local cadre is organised; (d) knowledge of the persons concerned of the languages spoken and the law in force in the part of the State lot which the local cadre is organised; (e) preference of the persons concerned for allotment to any local cadre, where feasible.
xx xx xx Para 5.
Local cadres and transfer 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 separate unit for purposes of recruitment, appointment, discharge, seniority, promotion and transfer, and such other matters, as may be specified by the State Government, in respect of that category of posts.
xx xx xx Para 13.
Certain appointments and promotions to be provisional: Any certain appointments and promotions made after the commencement of this order or any order made in pursuance of the proviso to paragraph 3, as the case may be, and before any local cadre has been orga nised under the provisions of this Order made in pursuance of the Proviso to 37 paragraph 3, to any post which is required to be included in such cadre shall be provisional and shall, within a period of twelve months after such organisation, be reviewed and readjusted in accordance with the provisions of this order.
Explanation: For the purposes of this para graph, any local cadre shall be deemed to be organised, with the allotment of persons to it under paragraph 4.
(Substituted as per G.O. Ms. No. 234, GAD (SPF A) Dept., dated 24th Jan., 1981).
xx xx xx THE SECOND SCHEDULE (See paragraphs 2 (1) (m) and 8 (4) Zones Zone I Shrikakulam and Visakhapatnam districts.
Zone II East Godavari, West Godavari and Krishna districts.
Zone III Gunrur, Prakasam and Nellore districts.
Zone VI Chittoor, Cuddapah, Anantapur and Kurnool districts.
Zone V Adilabad, Karimnagar, Warangal and Khammam districts.
Zone VI Hyderabad, Nizamabad, Mahabubnagar, Medak and Nalgonda districts.
THE THIRD SCHEDULE [See paragraphs 2(1) (j) and (4) Specified Gazetted Categories Sr.
No. Category Name of the Department (1) (2) (3) xx xx xx 30.
Assistant Engineers Panchyati Raj Enginee ring Department 30 A. Junior Engineers do xx xx xx 40.
Junior Engineers Public Works Department (Irrigation) 41.
Assistant Engineers Public Works Department (Irrigation) 42.
Junior Engineers Public Works Department (R&B) 43.
Assistant Engineers do " (emphasis supplied ) 38 It is clear from these provisos that the primary purpose of Article 371D was to promote speedy development of the backward areas of the State of Andhra Pradesh with a view to secure balance in the development of the State as a whole and to provide equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public service.
Accordingly the Presidential Order was made.
From the above extracted provisions of the Order it can be seen that State of Andhra Pradesh was divided into six zones and the 4th zone, with which we are concerned, com prises of Chittoor, Cuddapah, Anantpur and Kurnool Dis tricts.
As noted above Schedule III enumerates various specified gazetted categories and Junior Engineers and Assistant Engineers in the Panchayati Raj Engineering De partment as well as in the Public Works Department (Irriga tion) and (Roads and Buildings) are among those various categories mentioned therein.
Paragraph 3 provided for organisation of local cadres in respect of classes of posts in the civil services in the State of Andhra Pradesh.
Under para 3(4) the posts belonging to each specified category in each department in each zone shall be organised into a separate cadre.
Para 4 provides for the allotment of persons holding posts into such local cadres to be organised.
Para 5 which is important, lays down that each part of the State for which a local cadre has been organised in respect of any category of posts, shall be a separate unit for purposes of not only recruitment etc.
but also in respect of promotion.
Para 13 lays down that in certain appointments or promotions after the commencement of the Presidential Order or any order made in pursuance of the proviso to paragraph 3 and before any local cadre has been organised, shall be provi sional and shall within a period of twelve months after such organisation of local cadre, be reviewed and readjusted in accordance with the provisions of the Presidential Order.
A.P. Panchayati Raj Engineering Service Rules were framed in the year 1963.
These Rules provide for the ap pointments of different categories of engineers.
After the Presidential Order was issued a new Rule 2 A was introduced on 26.11.79 to bring the State Rules in conformity with the provisions of the Presidential Order.
Rule 2 A reads thus: "Rule 2 A Unit of Appointment: For purposes of recruitment,appointment, discharge for want of vacancy, re appointment, seniori ty, transfer, promotion and appointment as full member in respect of category 4, Deputy Executive Engineers, each 39 zone comprising the districts specified against each shall be a separate unit: xx xx xx Zone IV: Chittoor, Cuddapah, Anantpur and Kurnool districts.
xx xx xx Provided that the post of Deputy Executive Engineers in the office of the Chief Engineer (Panchayati Raj) shall be filled on a tenure basis by drafting persons equitably from different units and the period of tenure shall not ordinarily exceed three years; Provided further that the posts of Deputy Executive Engineers in the Rigs Divisions notified as Special Officers under the Andhra Pradesh Public Employment (Organisations of Local Cadres and Regulation of Direct Recruit ment) Order, 1975 shall be filled by drafting persons from the units over which the respec tive Rigs Division is having jurisdiction.
(G.O. Ms. No. 1024 PR, dated 26.11.1979).
" Regarding the scope of this rule it is the submission of the learned counsel for the State of Andhra Pradesh that a combined reading of Rule 2 A read with para 13 of the Presi dential Order would show that the said Rule has retrospec tive effect, therefore the Government is at liberty to revise the promotions made otherwise then on the basis of the zonal seniority list.
But Shri Sitaramiah, learned counsel, submitted that the said Rule cannot be given retro spective effect and the same applies to vacancies arising thereafter and therefore the promotions already made should not be disturbed.
It is an admitted fact that there was a Statewide list of Junior Engineers before 28.10.75 namely before the Presi dential Order was made.
Questioning some of the promotions made by the Government, representation petitions were filed before the A.P. Administrative Tribunal.
In such matters the Tribunal observed that as a precautionary measure the jun iors to the petitioners therein in the Statewide list cannot be promoted before the petitioners ' cases are considered for the appointment to the post of Executive Engineer which is a higher post.
In all the orders passed by the Tribunal there is an indication that the Statewide list should be the basis for promotion.
Though they appear to be in the nature of interim 40 directions but the ratio relied upon is that the promotion should be on the basis of the Statewide list.
Therefore the question that has been canvassed by the State Government in all these matters is that the observation and the directions given by the Administrative Tribunal are opposed to the very object underlying the Presidential Order and is contrary to various provisions therein.
At this juncture it is essential to note the principle and object underlying the zonal system as provided for in the Presidential Order.
We have already noted that the object underlying Article 371D is to promote speedy develop ment of the backward areas and to provide equal opportuni ties to different areas of the State in the matter of em ployment etc.
This Article is a special provision which makes departure from the general scheme of the Constitution.
In High Court of Andhra Pradesh and Ors.
vs V.V.S. Krishnamurthy and Ors., after referring to the Statement of Objects and ' Reasons of the Constitution (Thirty Second) Amendment Act, it was observed as under: "It will be seen from the above extract, that the primary purpose of enacting Article 371D was two fold; (i) To promote "accelerated development of the backward areas of the State of Andhra Pradesh so as to secure the balanced development of the State as a whole".
and (ii) to provide "equitable opportunities" to dif ferent areas of the State in the matter of education, employment and career prospects in public service.
(1) To achieve this primary object, Clause (1) of Article 371D empowers the President to provide by order, "for equitable opportunities and facilities for the people belonging to different parts of the State in the matter of public employment and in the matter of educa tion.
" Clause (2) of the Article is complemen tary to Clause (1).
It particularises the matters which an order made under Clause (1) may provide.
For instance, its sub clause (c) (i) enables the President to specify in his Order, "the extent to which, the manner in which and the conditions subject to which, preference or reservations shall be given or made in the matter of direct recruitment to posts in any local cadre under the State Government or under any local authority.
Sub clause (c) further makes it clear that resi dence for a specified period in the local area, can be made a condition for recruitment to any such local cadre.
Thus, Clause (4) also, directly is designed to achieve the primary object of the legislation.
" 41 The Presidential Order was made keeping in view this Object and suitable provisions are inserted.
With a view to achieve this Object and in conformity with the provisions of the Order, the State is divided into six zones and certain specified gazetted services are included in the local cadres.
The A.P. Panchayati Raj Engineering Services is one such and two categories of posts namely Junior Engineers and Assistant Engineers are such zonal posts.
It may be men tioned here that the validity of the Presidential Order is not being questioned.
Therefore we have to proceed on the basis that all the provisions of the Presidential Order are valid.
The further and rather the main submission of the re spondents is that the Presidential Order only lays down the criteria for claiming eligibility as a local candidate on the basis of the period of residence or of stay in that local area and reservations are meant to be made to the local cadre only in respect of direct recruitment to the said posts mentioned therein and therefore the power con ferred under the Article should be confined only to direct recruitment.
In this context the learned counsel also relied very much on the expressions used in Article 371D (1) and (2).
The learned counsel also submitted that initially the Junior Engineers are selected by the Public Service Commis sion and are given a ranking and they are allotted to the local cadre and to that extent that may become a zonal post.
But when it is a question of promotion to the higher post of Assistant Engineer though shown as a zonal post by virtue of being included in the local cadre, it should be only on the basis of the seniority in the Statewide list originally prepared by the public Service Commission.
The learned counsel very much relied on the expression 'in the matter of public employment ' and the other expressions used in Article 371D (1) and (2).
First we shall consider the submission that the purport of Article 371D and the Presidential Order in respect of direct recruitment does not apply to promotion.
The expres sion 'in the matter of public employment ' in clause (1), in our view, is of wider import.
The public employment can be by way of direct recruitment or by promotion.
In The General Manager; Southern Railway vs Rangachari, ; this Court considered the scope of Articles 16 (1), (2) and (4) and it was observed that Articles 16 (1) and (2) of the Constitution are intended to give effect to Articles 14 and 15(1) of the Constitution and they arc supplemented to each other.
Regarding the meaning of the word "employment" it is noted that: "Article 16 (1) should, therefore, be con strued in a broad and general, and not pedan tic and technical way, so construed, "matters relating to employment" cannot mean merely matters prior to the act of appointment nor can 'appointment ' to any 42 office mean merely the initial appointment but must include all matters relating to employ ment, whether prior or subsequent to the employment, that are either incidental to such employment or form part of its terms and conditions and also include promotion a selec tion post. "Although Article 16(4) which in substance is an exception to articles 16 (1) and 16(2) and should, therefore, be strictly construed, the court cannot in construing it overlook the extreme solicitude shown by the Constitution for the advancement of socially and education ally backward classes of citizens.
" It is thus concluded that Article 16(4) authorises the State to provide for reservation of appointments as well as selection posts.
At this juncture it may be noted that Article 371D (10) declares that any order made by the Presi dent shall have effect notwithstanding anything in any other provision of the Constitution or in any other law for the time being in force.
Therefore notwithstanding anything contained in the A.P. Panchayati Raj Engineering Service Rules, the promotions have to be based on zonal list other wise the very object sought to be achieved as per Article 371D and the Presidential Order would be defeated.
Shri Sitaramiah, however, laid considerable stress on Article 371D (2) which empowers the President to make an order "in particular" to specify any part or parts of the State which shall be regarded as the local area for direct recruitment in any local cadre.
It is submitted that if clauses (1) and (2) of Article 371D are read together the Presidential Order can make provision only in respect of appointments by way of direct recruitment and cannot be applied for promotion also.
But as laid down in Rangachari 's case the word "employment" should be interpreted in a broad and general manner.
The ratio therein should be applied in interpreting the words "in the matter of public employment" occurring in Article 371D also.
Consequently it must be held that Article 371D and the Presidential Order apply both for direct recruitment and for promotion in respect of categories specified in the Third Schedule.
Article 371D (2) does not make any departure from this principle.
The words "in particular" therein only lay emphasis on the aspect of creating local cadres for different parts of the State for the purpose of direct recruitment and treat such parts as local areas.
This does not in any manner restrict the scope of Article 371D wherein it is clearly declared that in the matter of public employ ment, the President is empowered to make an order in the manner stated therein and the public employment cannot but be interpreted to include promotion also.
It therefore emerges that Article 371D is in general terms and applies to the public employment as a whole and Article 371D(2) in particular applies to direct recruitment.
It is only comple mentary to clause (1) and particularises 43 the matters which an order made under clause (1) provides for.
Any other interpretation would defeat the object under lying these two provisions.
The other submission of Shri Sitaramiah, as already noted, is that even assuming that Rule 2 (a) which came into existence in 1979 is valid and applies to promotion also then it can have only prospective effect and all the promo tions prior to this Rule should be only on the basis of the Statewide list.
In considering this argument we have to bear in mind para 13 of the Presidential Order which specifically lays down that certain appointments and promotions after the commencement of the Order should be treated as provisional and the same should be reviewed an readjusted in accordance with the Presidential Order for the purpos of preparing the local cadres and allotting to the zones.
The learned coun sel, however, relied on two judgments of this Court in Y. V. Rangiah and Others etc.
vs J. Sreenivasa Rao and Others etc., , and N.T. Devin Katti and Others vs Karnataka Public Service Commission and Others, ; , in support of his submission that the said Rule cannot be given retrospective effect and that the promotions should be made only in accordance with the unamended A.P. Pan chayati Raj Engineering Service Rules, 1963.
But having regard to the historical background and the object underly ing Article 371D and the Presidential Order and in particu lar para 13 of the Order the promotions, if any, made, should be treated only as provisional.
If Rule 2(a) is viewed from this angle particularly in the light of paras 5 and 13 of the Presidential Order it becomes clear that the said Rule has to be given retrospective effect so that the promotions to the junior posts can be brought in conformity with Article 371D and the Presidential Order.
Accordingly any promotions made should be treated only as provisional and they should be reviewed and readjusted.
This leads us to the question whether the promotions from the post of Junior Engineer to Assistant Engineer should be based on zonal seniority list or on the Statewide seniority list.
Rule 2(a) makes it abundantly clear that for the purpose of recruitment, appointment, promotion, transfer etc.
each zone shall be a separate unit.
Para 5 of the Presidential Order is also to the same effect.
When once each zone is treated as a separate unit for the purpose of promotion also in respect of zonal posts then by virtue of Article 371D and the Presidential Order, as observed above, the promotion from the post of Junior Engineer to the post ' of Assistant Engineer which are both zonal posts, should be on the basis of the zonal seniority list inasmuch as the post of Junior Engineer and the next promotion post namely" Assistant Engineer are included in the local cadre and the zonal list as we find in the Third Schedule.
With regards the higher posts which are not included in the local cadre and which are Statewide posts, it 44 becomes obvious that the Statewide seniority list of the Assistant Engineers of all zones should be prepared and that should be the basis of promotion to the post of Executive Engineer which is not a zonal post.
Therefore it emerges that the directions given by the Tribunal to ensure that no Junior Engineer is promoted earlier than their seniors in the Statewide seniority list to the post of Executive Engi neer, should be quashed.
Shri Sitaramiah, however, pointed out certain anamolies if such a principle is to be followed.
According to the learned counsel, if the promotions are to be made only on the basis of the zonal list than there is every possibility of some of the seniors in the Statewide list not getting promotions and the same would result in some of the juniors becoming seniors which would ultimately affect the promo tional avenues for the Statewide higher post like Executive Engineer.
But it must be noted that Article 371D is of exceptional nature and the object is to provide equal oppor tunities in the backward areas in respect of the specified posts mentioned in the Third Schedule which are included in the local cadre which thus became zonal posts.
As mentioned in para 5 of the Presidential Order and Rule 2 (a) of the Engineering Service Rules such zones should be treated as separate units for the purpose of promotions also.
Therefore there is valid nexus to the object that is sought to be achieved and even if there is some anamoly it cannot on that basis be said that such promotions for zonal posts on the basis of the zonal seniority list amounts to discrimination.
In S.Prakasha Rao and another vs Commissioner of Commercial Taxes and Others, , a Bench of three Judges of this Court affirmed the view taken by the Administrative Tribunal, Andhra Pradesh that the zonal seniority list prepared pursuant to the initial organisation and creation of local cadres is to be maintained and such zonal seniority list is the criteria for promotion.
In the result we hold that all promotions of Junior Engineers (redesignated as Assistant Executive Engineers) to the next higher post of Assistant Engineers (re designated as Deputy Executive Engineers) have to be made on the basis of the zonal seniority lists as indicated above and not on the basis of the Statewide seniority list of Junior Engi neers.
The promotions made after the Presidential Order dated 18.11.75 should be treated as provisional and the Government is permitted to review these promotions on the basis of zonal seniority lists and re adjust the same.
All the future promotions from the post of Junior Engineer to the post of Assistant Engineer should necessarily be made on the basis of the zonal seniority lists.
For the purpose of promotion to the post of Executive Engineer, which is not a zonal post, a Statewide seniority list of the Assistant Engineers of all zones should be prepared and such Statewide seniority 45 list should form the basis of promotion to the post of Executive Engineer.
The State Government is accordingly directed to prepare such lists i.e. zonal seniority lists of various zones for the purpose of promotions from Junior Engineers to Assistant Engineers within the zones and also Statewide seniority list of the Assistant Engineers of all zones for the purpose of promotion to the post of Executive Engineer.
Such of the Directions given by the Tribunal in the matters before us which are contrary to or different from the above conclusions, remain quashed.
The inter se seniority and the consequent promotions of respondent Nos. 1 to 5 in Civil Appeal No. 3935/88 as well as the petitioners in Special Leave Petition (Civil) No. 2150/87 shall be determined subject to the above directions.
All these mat ters are disposed of accordingly with the above directions.
In the circumstances of the cases, there will be no order as to costs.
G.N. Appeals disposed of.

dataset_name: IN-Abs

summary/full:
Article 371D of the Constitution of India, which is peculiar to the State of Andhra Pradesh only, empowers the President to provide by order for equitable opportunities and facilities for the people belonging to different parts of the State in the matters of public employment and educa tion.
As provided therein the President of India made the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Orders, 1975, by virtue of which the State was divided into six zones, and local cadres of posts in respect of the local areas were created.
In respect of Andhra Pradesh Panchayati Raj Engi neering Service the two such zonal posts were Junior Engi neer and Assistant Engineer.
Before the Administrative Tribunal, some promotions made from Junior Engineer to Assistant Engineer were questioned, and the Tribunal held that promotions should be made on the basis of the Statewide list and directed the State Government to redetermine the position of the petitioners before it, in the seniority list.
Aggrieved by the Tribunal 's order, the State Government and the affected officials have approached this Court by way of the present appeals and special leave petitions.
On behalf of the State Government, it was contended that both the posts of Junior Engineer and Assistant Engineer were zonal posts under the Presidential Order and the zonal seniority list had to be followed in the 28 matter of promotions from Junior Engineer to Assistant Engineer and not the Statewide seniority list of Junior Engineers.
On behalf of the Respondents it was contended that Article 371D (2) of the Constitution refers only to direct recruitment and the Presidential Order made under the said Article cannot make a departure and cannot be made applica ble for promotions also.
It was further contended that it is the Statewide list that should be the basis for promotion.
Disposing of these matters, this Court, HELD: 1.
Notwithstanding anything contained in the A.P. Panchayati Raj Engineering Service Rules, 1963 the promo tions have to be based on zonal list; otherwise the very object sought to be achieved as per Article 371D of the Constitution of India and the Presidential Order issued thereunder would be defeated.
The word 'employment ' should be interpreted in a broad and general manner.
The expression 'in the matter of public employment ' in clause (1) of Arti cle 371D is of wider import.
The public employment can be by way of direct recruitment or by promotion.
The Presidential Order would apply both for direct recruitment and for promo tion in respect of categories specified in the Third Sched ule.
Article 371D (2) does not make any departure from this principle.
The words 'in particular, therein only lay empha sis on the aspect of creating local cadres for different parts of the State for the purpose/of direct recruitment and treat such parts as local areas.
This does not in any manner restrict the scope of Article 371D wherein it is clearly declared that in the matter of public employment, the Presi dent is empowered to make an order in the manner stated therein and the public employment cannot but be interpreted to include promotion also.
It, therefore, emerges that Article 371D is in general terms and applies to the public employment as whole and Article 371D(2) in particular ap plies to direct recruitment.
It is only complementary to clause (1) and particularises the matters which an order made under clause (1) provides for.
Any other interpretation would defeat the object underlying these two provisions.
[42 D H, 43 A] The General Manager, Southern Railway vs Rangachari, ; , relied on.
Article 371D is of exceptional nature and the objective is to provide equal opportunities in the backward areas in respect of the specified posts mentioned in the Third Schedule which are included in the local cadres which thus became zonal posts.
As mentioned in para 5 of the 29 Presidential Order and Rule 2 A of the A.P. Panchayati Raj Engineering Service Rules, such zones should be treated as separate units for the purpose of promotions also.
There fore, there is valid nexus to the object that is sought to be achieved and even if there is some anamoly it cannot on that basis be said that such promotions for zonal posts on the basis of the zonal seniority list amounts to discrimina tion.
[44 D E] 2.2.
Rule 2 A makes it abundantly clear that for the purpose of recruitment, appointment, promotion, transfer etc.
each zone shall be a separate unit.
Para 5 of the Presidential Order is also to the same effect.
When once each zone is treated as separate unit for the purpose of promotion also in respect of zonal posts then by virtue of Article 371D and the Presidential Order, the promotion from the post of junior Engineer to the post of Assistant Engi neer which are both zonal posts, should be on the basis of the zonal seniority list inasmuch as the post of Junior Engineer and the next promotion post namely Assistant/Engi neer are included in the local cadres and the zonal list in the Third Schedule.
With regard to the higher post which included in the local cadre and which are Statewide posts, it becomes obvious that the Statewide seniority list of the Assistant Engineer of all zones should be prepared and that should be the basis of promotion to the post of Executive Engineer which is not a zonal post.
Therefore, the direc tions given by the Tribunal to ensure that no Junior Engi neer is promoted earlier than their seniors in the Statewide seniority list to the post of Executive Engineer, should be quashed.
[43 F H, 44 A B] section Prakasha Rao and Anr.
vs Commissioner of Commercial Taxes and Ors., , relied on.
High Court of Andhra Pradesh and Ors.
vs V.V.S. Krishna murthy and Ors., , referred to.
All promotions of Junior Engineers (redesignated as Assistant Executive Engineers) to the next higher post of Assistant Engineers (redesignated as Deputy Executive Engi neers) have to be made on the basis of the zonal seniority list and not on the basis of the Statewide seniority list of Junior Engineers.
Having regard to the historical background and the object underlying Article 371D and the Presidential Order and in particular para 13 of the Presidential Order, the promotions, if any made should be 30 treated only as provisional.
If Rule 2 A is viewed from this angle particularly in the light of paras 5 and 13 of the Presidential Order it becomes clear that the said Rule has to be given retrospective effect so that the promotions to the junior posts can be brought in conformity with Articles 371D and the Presidential Order.
The promotions made after the Presidential Order dated 18.11.1975 should be treated as provisional and the Government is permitted to review these promotions on the basis of zonal seniority lists and re adjust the same all the future promotions.
from the post of Junior Engineer to the post of Assistant Engineer should necessarily be made on the basis of the zonal seniority lists.
For the purpose of promotion to the post of Executive Engineer, which is not a zonal post, a Statewide seniority list of the Assistant Engineers of all zones should be prepared and such statewide seniority list should form the basis of promotion to the post of Executive Engineer.
The State Government is accordingly directed to prepare such lists i.e. zonal seniority lists of various zones for the purpose of promotions from Junior Engineers to Assistant Engineers within the zones and also the statewide seniority list of the Assistant Engineers of all zones for the purpose of promotions to the post of Executive Engineer.
Such of the directions given by the Tribunal in the matters, which are contrary to and different from the conclusions now reached, shall remain quashed.
[44 D E; 44 D H; 45 A B] 3.3.
The inter se seniority and the consequent promo tions of Respondent Nos.
1 to 5 in Civil Appeal No. 3935/88 as well as the petitioners in Special Leave Petition (Civil) No. 2150/87 shall be determined subject to the directions, now given.
[45 B C] Y. N. Rangiah and Ors.
J. Sreenivasa Rao and Ors.
, [1983]3 SCC 284; N.T. Devin Katti and Ors.
vs Karnata ka Public Sen,ice Commission and Ors., ; , referred to.


judgement:
ivil Appeal Nos.3033 34 of 1989.
From the Judgment and Order dated 28.2.1989 of the Punjab Haryana High Court in C.W.P. No. 7209 of 1987 (in L.P.A. No. 748/87) and C.W.P. No. 7607 of 1987.
WITH Special Leave Petition (C) Nos.
4483 4485 of 1989.
D.V. Sehgal, R.D.Upadhyaya, Ashok Sharma, Nabhyawala, D.S. Tewatia and Ms. Madhu for the Appellants.
Ms. B. Rana and N.S. Das Behl (for the State) for the re spondents.
The Judgment of the Court was delivered by K RAMASWAMY, J.
Leave granted in Special leave Petitions and heard alongwith the appeals.
Common questions of facts and law arise in the appeals and hence are disposed of by a common judgment.
It is not necessary to restate the facts, preceding the decision of the High Court of Punjab & Haryana in Gurjit Singh & Ors.
vs State of Punjab & Ors.
(WP No. 2374 of 1985).
Suffice to state that the High Court in the said judgment, while allow ing the ad hoc appointments made by the Government of Punjab to the posts of Patwaris under the Punjab Revenue Patwari Class II1 Service Rules, 1963, for short 'the Rules ' to continue for six months, directed the State Government to make regular appointments in accordance with the rules within the said period from the date of the judgment or else the ad hoc arrangement would lapse.
Pursuant thereto, since the Service Selection 155 Board, Punjab was not constituted, the Government of Punjab by a notification dated August 26, 1986 amended rule 2(a) and empowered the State Govt.
to authorise "other authori ties" to make recruitment to the service.
Accordingly the Govt.
constituted a Committee for each District, by proceed ing dated May 27, 1986 to make selection.
For the District Committee of Patiala, the Dy.
Commissioner, Patiala was the Chairman, the District Revenue Officer, Patiala, District Sainik Welfare Officer and District 'Social Welfare Officer (Scheduled Caste) were nominated as members of the Commit tee.
to the pending names of the candidates before the S.S. Board were sent to the Committee for selection.
The Dis trict Collector invited applications ' from special catego ries, namely, children effected by the riots at Delhi, terrorists effected families in Punjab, etc.
and issued call letters to 1210 candidates for interview.
By the date of the interview Shri Piara Singh, the District Revenue Officer was transferred and his successor had participated in the selec tion.
Out of 821 candidates appearing for interview, 189 candidates were selected; the list was prepared in their order of merit; and the Distt.
Collector appointed 146 candidates and sent them for Patwari training and on their completion of it in a period of one year, they were appoint ed as Patwaris on probation.
The selections were challenged by unsuccessful candidates in several writ petitions and by judgment dated February 28, 1989, the High Court dismissed the L.P. Appeal and the Writ Petitions.
On leave under Article 136, the appeals arise from that batch.
The first contention of the appellants that the Commit tee was not properly constituted and, therefore, the selec tion of the candidates are invalid has no force.
Under rule 4(1) of the rules, as per amended rule 2(a) the authority authorised by the Govt. is entitled to make recruitment to the service of Patwaris.
The Committee constituted consists of Dy.
Commissioner as Chairman, the District Revenue Offi cer, Patiala, District Sainik Welfare Officer and District Social Welfare Officer (S.C.) as members.
Undoubtedly, at the time when the Committee was constituted, Piara Singh was the District Revenue Officer.
On his transfer, his successor had participated in the selection.
We have seen the notifi cation.
The Distt.
Revenue Officer, Patiala was nominated in official capacity.
Therefore, the member having been nomi nated by virtue of his office, the incumbent in office was, therefore, entitled to participate in the selection of the candidates.
It is true that the representation of the sched uled castes need be by an officer belonging to Scheduled Caste.
The District Social Welfare Officer (Scheduled Caste) as required should be an officer belonging to the members of the scheduled caste.
It is not uncommon that the Social Welfare Officer may be an officer other than one from the scheduled castes.
But here in this case it is not the contention that the 156 District Social Welfare Officer was not a scheduled caste officer representing the scheduled castes.
Therefore, we find that the committee constituted was properly composed of the representatives enumerated therein.
The composition of the committee and the selection of the candidates, there fore, are legal and valid.
It is next contended that the District Collector was not competent to invite applications afresh and selection of the candidates from out of those applicants is illegal.
It is true that he is bound by the instructions issued by the Government in Annexure 'D ' wherein it was stated that since the number of applicants are quite large in number, it would not be necessary to solicit candidate afresh from Employment Exchange or through public advertisement.
But in paragraph 4 therein it was stated that priority categories listed in the proceeding dated April 24, 1986 will have to be given prece dence over candidates from all other sources other than the regularisation of the existing ad hoc Patwaris.
It had given room to the District Collector to invite applications from those categories.
Though it was a mistaken compliance on wrong impression, the selection of the candidates, so apply ing does not become illegal.
It was next contended that.
instead of calling the applications by publication in the newspapers, only notice was put on the Notice Board of the Collector 's office and some candidates submitted their applications in pursuance thereof and that is not a proper notification.
Though we find that the procedure adopted by the Collector, in inviting applications is not ommendable, but the grievance would be voiced only by the persons who did not have the opportunity to make applications within the prescribed period.
But no such grievance could be raised by persons like the appellants.
Under those circumstances, the procedure adopted, though irregular, does not vitiate the selection of candidates, ultimately made by the Committee.
It is next sought to raise a contention that none of the candidates from the priority categories were selected and this was used only as a lever to invite applications from the candidates other than those, some of which were ulti mately selected and it is irregular.
We find no substance in it.
That apart it is a factual position to be investigated and that no such plea was raised nor argued in the High Court.
Therefore, we cannot permit the appellants to raise this contention for the first time in this Court.
It is next contended that there was no proper opportuni ty given to the appellants in the interview.
Only 15 hours were spent to interview 821 candidates and the selection, therefore, is a farce.
This contention also was not raised before the High Court, but raised in these appeals for the first time.
In the counter filed in this court, it was refuted.
It was stated that they had spent 35 hours in total at the rate of 7 hours per day.
That 157 means they spent 5 days in selecting the candidates.
The selection is for the Patwaris in the Class III service.
The ratio in Ashok Yadav vs State of Haryana, [1985] Suppl.
1 SCR 657 has no application to the facts in this case.
There in the selection was to the Class I service of the State service and sufficient time was required to interview each candidate.
In this case, on calculation, we found that on an average three minutes were spent for each candidate for selection.
Rule 7 of the rules provides the qualifications, namely, pass in the Matriculation or Higher Secondary Exami nation; knowledge in Hindi and Punjabi upto the Middle Standard and good knowledge of rural economy and culture.
The educational qualifications are apparent from record and need no interview in this regard.
It could be seen that candidates normally hailing from rural backgrounds had presumptively good knowledge of rural economy and culture.
Therefore, there is no need for special emphasis to ascer tain their knowledge of the rural economy or culture.
Under those circumstances much time need not be spent on each candidate for selection except asking some questions on general knowledge and aptitude for work as Patwari etc.
It is then contended that the written test, conducted by the previous Service Selection Board, was abandoned and only oral interviews were conducted.
The selection, therefore, is illegal.
Normally it may be desirable to conduct written test and in particular hand writing that which is vital for a Patwari whose primary duty is to record clearly entries in revenue records followed by oral interview.
The rules do not mandate to have both.
Options were given either to conduct written test or viva voce or both.
In this case the Commit tee adopted for viva voca as a method to select the candi dates which cannot be said to be illegal.
It is next contended that the appellants have now become over aged and that they are 22 in all.
Therefore, direc tions may be given to the Government to relax their age qualification and given appointments to them.
We find no justification to give such a direction.
Admittedly, the appellants have taken the chance for selection and they were not selected on the basis of comparative merits.
Therefore, merely because appellants are carrying on the litigation, there cannot be any justification to give direction to the Govt.
to consider their cases by relaxing the age qualifica tion for appointment as Patwari.
It is not in dispute that hundreds of candidates who could not be selected would in that event seek similar relief.
Under these circumstances we do not find any cause to add to the selection and appoint ment of the candidates as Patwaris.
The High Court, though for different reasons, has rightly dismissed the writ peti tions.
The appeals are accordingly dismissed, but without costs.
R.P. Appeals dismissed.

summary/full:
In a writ petition decided by the High Court of Punjab and Haryana, it allowed the ad hoc appointments made by the Government of Punjab to the posts of Patwaris, to continue for six months from the date of the judgment and directed the Government to make regular appointment of Patwaris within that period.
Since the Service Selection Board, Punjab was not constituted at the relevant time, the Govern ment of Punjab by a Notification dated 26.8.86 amended Rule 2(a) of the Punjab Revenue Patwari Class III Services Rules, 1963, and empowered the State Government to authorise "other authorities" to make recruitment to the service.
According ly, the Government constituted a selection committee for each district.
The District Committee of Patiala consisted of the Dy.
Commissioner, Patiala as Chairman, and District Revenue Officer, the District Sainik Welfare Officer and the District Social Welfare Officer (Scheduled Caste) as its Members.
The pending names of the candidates before the Service Selection Board were sent to the Committee for selection.
The District Collector also invited applications from children affected by the riots at Delhi, terrorists affected families in Punjab and the like special categories.
By the date of the interview the District Revenue Officer was transferred and his successor participated in the Selec tion.
The selections were challenged by unsuccessful candi dates in several writ petitions which were dismissed by the High Court.
Aggrieved the petitioners filed appeals before this Court by special leave.
153 It was contended on behalf of the appellants that the selection was bad because: the Committee was not properly constituted; the District Collector was not competent to invite applications afresh; written test was abandoned and only oral interviews were conducted; no proper opportunity was given to appellants in the interview inasmuch as 821 candidates were interviewed in 15 hours.
It was also prayed that since the appellants had meanwhile become overage, the Government should be directed to relax their age and to give appointments to them.
Dismissing the appeals, this Courts, HELD 1.1 On the transfer of the member having been nominated by virtue of his office, the incumbent in office was entitled to participate in the selection of the candi dates.
The committee constituted was properly composed of the representatives enumerated therein, and the selection of the candidates, therefore, was legal and valid.
[pp. 155 F G; 156 A] 1.2 Although the representation of the Scheduled Castes need be by an officer belonging to Scheduled Caste, and the District Social Welfare Officer (Scheduled Caste), as re quired should be an officer belonging to the members of the Scheduled Castes, yet it is not uncommon that the Social Welfare Officer may be an officer other than one from the Scheduled Castes.
[p. 155 G,H] 2.
If applications from candidates are invited and they are called for interview though under a mistaken compliance on wrong impression, the selection of the candidates, so applying, does not become illegal.
[p. 156 D] 3.
Normally it may be desirable to conduct written test and in particular hand writing that which is vital for a Patwari whose primary duty is to record clearly entries in revenue records followed by oral interview.
The rules did not mandate to have both.
Options were given either to conduct written test or viva voce or both and the committee adopted viva voce as a method to select the candidates which could not be said to be illegal.
[p.157 D E] 4.
On an average three minutes were spent for each candidate for selection.
Keeping in view the facts that educational qualifications were apparent from the record, the candidates normally hailing from rural background had presumptively good knowledge of rural economy and 154 culture, under the circumstances, much time need not be spent on each candidate for selection except asking some questions on general knowledge and aptitude for work as Patwari etc.
[p. 157 B D] Ashok Yadav vs State of Haryana, [1985] Suppl.
1 SCR 657, held inapplicable.
The appellants had taken the chance for selection and they were not selected on the basis of comparative merits.
Merely because they were carrying on the litigation, there could not be any justification to give direction to the Government to consider their cases by relaxing the age qualification for appointment as Patwari.
[157 F G]


judgement:
Appeal No.2168 of 1980.
From the Judgment and Order dated 2.8.1979 of the Patna High Court in C.W.J.C. No.1819 of 1979.
R.K. Khanna and R.P. Singh for the Appellant.
L.C. Goyal for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
The appellant, the Ex Treasurer of the Gopalganj Co op.
Development & Cane Marketing Union, Gopal ganj, was said to have defalcated a sum of Rs. 95,790.54 and for recovery thereof, proceedings were initiated under section 48 of the Bihar and Orissa Co operative Societies Act, VI of 1935, for short 'the Act ' with interest accrued thereon of Rs. 25,555 as on December 30, 1976.
The Registrar referred the matter to the Asstt.
Registrar, Gopalganj, who on en quiry and having given the opportunity to the appellant passed an award in Case No. 400 of 1975 on December 30, 1976 for the aforesaid sums.
On appeal, the Deputy Registrar set aside the award on the ground that the appellant was surch arged in Surcharge Case No. 18 of 1976.
On further revision, the first respondent set aside the appellate order and confirmed the award with a further direction to pay interest till date of recovery.
The appellant filed C.W.J.C. No. 1819 of 1979 which was dismissed in limine by the Patna High Court on August 2, 1979.
Thus this appeal by Special Leave.
The learned counsel for the appellant raised two fold contentions.
His first contention is that the Registrar has no revisional jurisdiction under section 56 since the award of the Asstt.
Registrar is by the Registrar under the Act and the Asstt.
Registrar acted as his delegate.
In support thereof he placed strong reliance on Din Dayal Singh vs The Bihar State Cooperative Marketing Union Ltd, It is further contended that surcharge proceedings against the appellant were initiated under section 40 in 147 which the appellant was found payable of partial amount as against which the society filed an appeal before the Govern ment which is pending.
The award amounts to double jeopardy for the same liability.
Therefore, it is illegal.
We find no substance in either contention.
Section 2 (i) of the Act defines 'Registrar ', which means a person appointed to perform the duties of Registrar of Co operative Societies under this Act.
Section 6 in Chapter II provides thus: "6.
The Registrar (1) The State Government may appoint a person to be registrar of Co operative Societies for the State or any portion of it, and may appoint persons to assist such Registrar.
(2) The State Government may, by general or special order published in the Official Ga zette, confer (a) on any person appointed under sub section (1), to assist the Registrar, all or any of the powers of the Registrar under this Act except the powers under Section 26; and (b) on any Co operative Federation or financ ing bank all or any of the powers of the Registrar under Section 20, sub section (3) of Section 28 and Section 33.
(3) Where the State Government is of opinion that the Registrar needs the assistance of Additional Registrar for speedy disposal of business, it may by order published in the Official Gazette, appoint such number of Additional Registrar as it may deem fit.
(4) Notwithstanding anything to the contrary contained in any other provision of the Act, the Registrar may delegate, transfer or assign to the Additional Registrar such of his powers and functions and duties as he may consider necessary including the power under sections 26 and 56 and the Additional Registrar shall, thereupon have powers of Registrar in matters so delegated, transferred or assigned to him.
" From a reading of sub sections (1) to (3) of section 6, it is clear that the State Government may appoint a person to be the Registrar of the Cooperative Societies besides Addition al Registrar and also appoint persons to assist such Regis trar.
Under sub section 2 (a) the persons appointed to 148 assist the Registrar are entitled to exercise all or any of the powers of the Registrar under the Act except under section 26.
Sub section (4) gives power to the Registrar to dele gate, transfer or assign to the Addl.
Registrar all the powers including the power under sections 26 and 56 and thereupon the Addl.
Registrar as a delegate of the Registrar is empow ered to exercise powers so transferred or assigned or dele gated to him.
Section 6 thereby makes a clear distinction between the.
exercise of the powers of the Registrar, by the Addl.
Registrars as a delegate of the Registrar and of the Assn.
Registrars or Dy.
Registrars appointed to assist the Registrar empowered as such in the discharge of their func tions under the Act.
Such assistants are entitled by statu tory operation to exercise the powers under the Act con ferred by the State Govt.
except to the extent expressly excluded by the statute.
Section 48 provides procedure to adjudicate any dispute touching the business of a registered Society other than a dispute regarding disciplinary action taken by the Society or its Managing Committee against a paid servant of the society, arising amongst its members covered by clauses (a) to (e) and (c) covering any officer, agent or servant of the society (past or present).
Such disputes shall be referred to the Registrar.
Under sub section (2) thereof the Regis trar may on receipt of such reference (a) decides the dis pute by himself or (b) transfer for disposal to "any person exercising the powers of the Registrar in this behalf '.
Under sub section (3) the Registrar (Assistant or Deputy) on reference shall dispose of the same in th manner provided and the rules.
A right of appeal under s.48 (6) is provided against the award made under sub section (3).
Sub section (9) provides the subject to the orders of the Registrar on appeal or review a decision given in a dispute transferred or referred under clauses (b) and (c) shall be final.
Sec tion 56 provides power of revision thus: Power of revision by Registrar The Registrar may on application or of his own motion revise any order passed by a person exercising the powers of a Registrar or by a liquidator under section 44" A bare reading of these relevant provisions clearly manifests the legislative intention that the Registrar on reference, himself may decide the dispute or transfer it for disposal to a person exercising powers of the Registrar in this behalf.
If the Registrar himself decides the dispute under section 48(3) the question of either appeal or revision to him does not arise except a review.
This dichotomy is to be maintained when a revisional power is to be exercised by the Registrar.
The power of the revision is conferred expressly only, either on application or suo moto, against any 149 order passed by "a person exercising the powers of the Registrar".
Obviously it refers to the person appointed to assist him under section 6(2)(a) of the Act.
In Chintapalli Agency Taluk Arrack Sales Co op.
Society Ltd. vs Society (Food & Agriculture), Govt.
of Andhra Pradesh, ; a similar question had arisen.
The Dy.
Registrar of Co operative Societies gave notice to the appellant and amended under section 16 (5) of the A.P. Co operative Societies Act, the Bye laws of the Society so as to restrict the area of operation within the specified area.
On a revision filed against the order under section 77, the Registrar gave certain directions which was assailed being without jurisdiction.
When it came before the High Court, the High Court allowed the writ petition.
On appeal this court held that the power of the Registrar is in accordance with the pre eminent position accorded by the Act to the Registrar under whose supervision any other person appointed under s.3 (1) may function and act.
"It is, therefore, not correct that the Registrar could not exercise powers under section 77 in examining the correctness, legality or propriety of the proceedings initiated by the Dy.
Registrar under section 16(5) of the Act".
It was further held that the power under s.16 is that of the Registrar, but the Dy.
Registrar is empowered by the Government to exercise the powers, but under the general superintendence of the Registrar.
Accord ingly it was held that the revision was maintainable.
The same ratio applies to the facts on hand.
The Registrar under section 6 (1) of the Act has his pre eminent supervisory authori ty over the functions and orders of the Registrars appointed under section 6(2) (a) to assist him in the discharge of the duties or functions under the Act except over his delegate under sub section (4) of section 6.
His supervisory or revisional power is to correct all palpable material errors in the orders passed or the action taken by the subordinate offi cers feeding injustice.
The language couched in section 56 advis edly was wide of the mark to reach injustice whenever found in the orders or actions of his subordinate officers.
Merely because the Asstt.
Registrar on reference exercised the power under sub section
(3) of s.48, the Registrar is not denuded of his supervisory or revisional powers under section 56 of the Act.
Therefore, the Addl.
Registrar as delegate of the Registrar is clearly within his power to exercise his revi sional power over the appellate order under section 48 (6) of the Act.
It is accordingly legal and valid.
The ratio in Roop Chand vs State of Punjab, [1963] Suppl.
1 SCR 539 is clearly distinguishable.
Therein the State Govt.
have expressly delegated their power to the Asstt.
Director.
Thereby the Subordinate Officer exercised the powers of the State Govt.
as their delegate.
The Govt.
was thereafter devoid of powers to exercise the revisional powers over the subordinate officers.
This court in Chintapalli Agency 's case (supra) distinguished Roop 150 Chand 's ratio.
Din Dayal Singh 's case (supra) no doubt supports the contention of the appellant.
Relying upon the language in sub section (9) of section 48 "save as expressly provided in this section ", the Division Bench construed that the appellate order of the Deputy Registrar passed under section 48 (6) was otherwise provided and so was not amena ble to revision under section 56.
The learned Judges construed that since the appellate order shall be final.
The effect of language under sub sec.
(9) of section 48 was to exclude the revisional jurisdiction of the Registrar under section 36.
In addition, the Division Bench also construed that the Regis trar himself referred the dispute to the Asstt.
Registrar and any person exercising the power of the Registrar in this behalf is to be in the parameters of his delegate and that, therefore, the Registrar himself cannot revise his own order under section 56.
We find it difficult to approve the ratio of the High Court.
At the cost of repetition we point out that section 6, sub section (1) and sub section 2 (a) make a distinc tion between "the Registrar" and "a person exercising the powers of the Registrar".
Sub section (4) further amplifies the exercise of the power of the Registrar by the Additional Registrar as his delegate.
That apart, it is clear that the Registrar is the final supervisory authority over the subor dinate officers exercising the powers or performing the duties under the Act.
The language in section 56 was couched very widely without being hedged with any limitation like the revisional powers under section 115 C.P.C. or the similar language used in sister Acts in some other States like A.P. The reason appears to be obvious.
The order of the Dy.
Registrar by language of sub section (6) of section 48, undoubt edly shall be final.
We are aware that when the legislature gives "finality" to an order, it is normally not open to revision.
But still in must be construed in the light of the scheme of the Act, its operation and resultant effect.
The language in s.56 is not hedged with any limitation of the finality in sub section (6) of section 48.
Thus we hold that the revisional power under section 56 is independent of the appellate power under section 48(6).
The letter is amenable to revi sion by the Registrar.
The ratio of the Division Bench in Din Dayal 's case (supra) is, therefore, not good law.
The second contention that the award of the Asstt.
Registrar amounts to double jeopardy offending his right under article 20 is misconceived and without substance.
Un doubtedly section 40 gives power to the Registrar to initiate surcharge proceedings, on receipt of audit report under section 33 or an enquiry under section 35 or on inspection under Ss. 34, 36 or 37 or of the winding up proceedings, if it appears to the Registrar that any person who has taken part in the organisation or the management of the society or any past or present officers of the society made any illegal payment under clause (a); or by reason of his culpable negligence or mis 151 conduct causes loss or deficiency to the funds of the socie ty under clause (b); or failed to bring into account any sums which ought to have been brought into the account under clause (d); or misappropriated or fraudulently retained any property of the society or of the financing bank etc.
The proceedings under section ,18 are in the nature of a civil suit, otherwise cognisable by a civil court under section 9 of the C.P.C.
The statute has taken out the jurisdication of the civil court and expressly conferred on the Registrar or a person exercising the powers of the Registrar to decide the dispute touching the business or management of the society between its members, past members etc.
or their office bearers, agent or officers or servants of the society etc.
The proceedings under section 40 are not in substitution of section 48, but are independent of and in addition to the normal civil remedy under section ,18.
The culpable negligence, miscon duct, misappropriation, fraudulent conduct etc.
are relevant facts to be established in the proceedings under section 40.
But that is not so under section 48.
Therefore, mere initiation or an order passed under section 40 does not divest the jurisdiction or power of the Registrar under section 48 when it was referred to for a decision of the dispute.
Exercise of the jurisdiction to pass an award under section ,18(3) or revision under section 56 does not amount to double jeopardy.
We are informed that an appeal before the Government is pending against surcharge order under section 40.
We express no opinion thereon.
We hold that exercise of the power to pass an award under section 48 does not amount to double jeopardy.
The appellate order of the Dy.
Registrar is obviously and palpably illegal and rightly corrected.
The appeal is accordingly dismissed, but since none appeared for the respondents we order no costs.
V.P.R Appeal dismissed.

summary/full:
The appellant, an Ex Treasurer of a Co operative Society was said to have defalcated a sum of Rs. 95,790.54 and for recovery thereof, proceedings were initiated under section 48 of the Bihar and Orissa Co operative Societies Act, 1935 with interest accrued thereon of Rs. 25,55 as on December 30, 1976.
The Registrar referred the matter to the Asstt.
Regis trar who on enquiry and having given the opportunity to the appellant passed an award, against which appeal was filed.
The Deputy Registrar allowed the appeal on the ground that the appellant was surcharged.
On revision, the first respondent set aside the appel late order and confirmed the award with a further direction to pay interest till date of recovery.
The appellant filed a writ petition which was dismissed in limine by the High Court against which this appeal by special leave.
The appellant contended that the Registrar had no revi sional 144 jurisdiction under Section 56 since the award of the Asstt.
Registrar was by the Registrar under the Act acting as Registrar 's delegate; that surcharge proceedings against the appellant were initiated under Section 40 in which the appellant was found payable of partial amount, as against which, the society filed an appeal before the Government, which was pending and the award amounted to double jeopardy for the same liability and therefore, it was illegal.
Dismissing the appeal, this Court, HELD: 1.
A bare reading of the relevant provisions in Section 48 clearly manifests the legislative intention that the Registrar on reference, himself may decide the dispute or transfer it for disposal to a person exercising powers of the Registrar in this behalf.
If the Registrar himself decides the dispute under Section 48(3) the question of either appeal or revision to him does not arise except a review.
This dichotomy is to be maintained when a revisional power is to be exercised by the Registrar.
The power of revision is conferred expressly only, either on application or suo moto, against any order passed by "a person exercis ing the powers of the Registrar".
Obviously it refers to the person appointed to assist him under section 6(2) (a) of the Act.
[148G H, 149 A] 2.
The Registrar under section 6(1) of the Act has his pre eminent supervisory authority over the function and orders of the Registrars appointed under section 6(2)(a) to assist him in the discharge of the duties or functions under the Act except over his delegate under sub section (4) of section 6.
His supervisory or revisional power is to correct all palpable material errors in the orders passed or the action taken by the subordinate officers feeding injustice.
Merely because the Asstt.
Registrar on reference exercised the powers under sub,section (3) of section 48.
The Registrar is not denuded of his supervisory or revisional powers under section 56 of the Act.
Therefore, the Addl.
Registrar as delegate of the Registrar is clearly within his power to exercise his revisional power over the appellate order under section 48(6) of the Act.
It is accordingly legal and valid.
[149 E G] 3.
The language in section 56 was couched very widely without being hedged with any limitation like the revisional powers under section 115 C.P.C. or the similar language used in sister Acts in some other States.
The reason appears to be obvious.
The order of the Dy.
Registrar by language 145 of sub section (6) ors.
48, undoubtedly shall be final.
When the legislature gives 'finality ' to an order, it is normally not open to revision.
But still it must be construed in the light of the scheme of the Act, its operation and resultant effect.
The language in section 56 is not hedged with any limita tion of the finality in sub section (6) of Section 48.
The revisional power under section 56 is independent of the appellate powers under section 48(6).
The latter is amenable to revision by the Registrar.
[150 D F] 4.
The proceedings under section 40 are not in substitution of section 48, but are independent of and in addition to the normal civil remedy under section 48.
The culpable negligence, misconduct, misappropriation, fraudulent conduct etc.
are relevant facts to be established in the proceedings under section 40.
But that is not so under section 48.
Therefore, mere initiation or an order passed under section 40 does not divest the jurisdiction or power of the Registrar under section 48 when it was referred to for a decision of the dispute.
Exercise of the jurisdiction to pass an award under section 48(3) or revision under section 56 does not amount to double jeopardy.
[151 C D] 5.
Section 2(i) of the Act defines "Registrar", which means a person appointed to perform the duties of Registrar or Co operative Societies under this Act.
The State Govern ment may appoint a person to be the Registrar of the Co operative Societies besides Additional Registrar and also appoint persons to assist such Registrar.
Under sub section 2(a) the persons appointed to assist the Registrar are entitled to exercise all or any of the powers of the Regis trar under the Act except under section 26.
Sub section (4) of Section 6 gives power to the Registrar to delegate, transfer or assign to the Addl.
Registrar all the powers including the powers under section 26 and 56 and thereupon the Addl.
Regis trar as a delegate of the Registrar is empowered to exercise powers so transferred or assigned or delegated to him.
Section 6 thereby makes a clear distinction between the exercise of the powers of the Registrar, by the Addl.
Regis trar as a delegate of the Registrar and of the Asstt.
Registrars or Dy.
Registrars appointed to assist the Regis trar empowered as such in the discharge of their functions under the Act.
Such assistants are entitled by statutory operation to exercise the powers under the Act conferred by the State Govt.
except to the extent expressly excluded by the statute.
[147 B, 148 A B] Din Dayal Singh vs The Bihar State Cooperative Marketing Union Ltd., 146 , over ruled Chintapalli Agency Taluk Arrack Sales Co op.
Society Ltd. vs Secretary (Food & Agricultural), Govt.
of Andhra Pradesh, ; , followed.
Roop Chand vs State of Punjab, [1963] Suppl.
1 SCR 539, distinguished.