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Commissioner Of Commercial Taxes, A.P, Hyderabad And Another v. G. Sethumadhava Rao And Others
Factual and Procedural Background
This appeal by special leave challenges the order dated 2 December 1992 of the Andhra Pradesh Administrative Tribunal in OA No. 5158 of 1992. The Tribunal had ruled that Rule 22 of the Andhra Pradesh State and Subordinate Service Rules (“General Rules”) governing reservation could not be applied to recruitment by transfer or promotion to the posts of Assistant Commercial Tax Officer and related cadres, which are otherwise regulated by the Andhra Pradesh Commercial Tax Subordinate Service Rules (“Special Rules”).
Notices were served on the respondents, but they did not appear either in person or through counsel. The Court heard submissions only from Shri Ram Kumar, learned counsel for the appellants.
Legal Issues Presented
- Whether Rule 22 of the Andhra Pradesh State and Subordinate Service Rules, which embodies the scheme of reservation for Scheduled Castes and Scheduled Tribes, extends to appointments made by transfer or promotion under the Special Rules governing the Commercial Tax Subordinate Service.
- Whether the Administrative Tribunal erred in restricting the operation of Rule 22 to direct recruitment despite constitutional and statutory provisions permitting reservation in promotions.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| G.M., Southern Railway v. Rangachari, (1962) 2 SCR 586 | “Employment” includes not only initial appointment but also subsequent matters such as promotion. | Relied upon to show that the constitutional concept of appointment encompasses promotion, supporting the applicability of reservation rules to promotions. |
| State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 | Affirmed Rangachari on inclusion of promotion within “appointment.” | Cited to reinforce the principle that constitutional equality permits reservation in promotion. |
| Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India, (1981) 1 SCC 246 | Further endorsement that reservation can extend to promotional posts. | Used as additional authority that reservation schemes legitimately cover promotions. |
| Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 | Held that Article 16(4) reservations were confined to initial appointments, but upheld past promotional reservations and prompted constitutional amendment. | Explained historical backdrop and noted that the subsequent 77th Constitutional Amendment (Article 16(4-A)) overruled the limitation, thereby validating reservation in promotions. |
Court's Reasoning and Analysis
Rule 5 of the Special Rules explicitly provides that, save for physically handicapped persons, “the rule of special representation (General Rule 22) shall apply separately” to appointments made by direct recruitment and by transfer. Reading Rule 5 with the proviso to Rule 22, the Court concluded that the legislature intended reservation benefits to operate in promotional avenues whenever Scheduled Castes and Scheduled Tribes remained under-represented.
Constitutional jurisprudence beginning with Rangachari and reaffirmed in N.M. Thomas and Karamchari Sangh has interpreted “appointment” under Article 16 to include promotion. Although Indra Sawhney temporarily curtailed promotional reservations, Parliament’s 77th Amendment inserted Article 16(4-A), expressly empowering the State to reserve promotions where inadequate representation persists. This legislative development, coupled with the existing text of Rule 22, decisively negates the Tribunal’s view that reservation is confined to direct recruitment.
Accordingly, the Court held that the Tribunal’s restriction of Rule 22 to direct recruitment was legally unsustainable.
Holding and Implications
Appeal Allowed. The order of the Andhra Pradesh Administrative Tribunal dated 2 December 1992 is set aside.
Implications: Reservation under Rule 22 applies to promotions and transfers within the Andhra Pradesh Commercial Tax Subordinate Service. While the decision clarifies the scope of existing state service rules rather than creating new constitutional doctrine, it ensures continued application of reservation in promotional posts where Scheduled Castes and Scheduled Tribes are under-represented.
Order
1. Leave granted.
2. Though the respondents have been served with notice they are not appearing either in person or through counsel.
3. We have heard Shri Ram Kumar, learned counsel for the appellants.
4. This appeal by special leave arises from the order of the Administrative Tribunal of Andhra Pradesh passed on 2-12-1992 in OA No. 5158 of 1992. The Tribunal in the impugned order has held that though the posts of Assistant Commercial Tax Officers etc. are governed by rules made under proviso to Article 309 of the Constitution issued in GOMs No. 107 dated 30-1-1962 and GOMs No. 81-Revenue dated 3-2-1990, Rule 22 of the A.P State and Subordinate Service Rules is not applicable to the recruitment by transfer and promotion. Consequently, the Government was not justified in applying the rule to the above services. The view taken by the Tribunal is not correct in view of special rules holding the field.
5. Rule 5 of the A.P Commercial Tax Subordinate Service Rules (the Special Rules) reads thus:
“Special representation.— Except insofar as it relates to physically handicapped persons the rule of special representation (General Rule 22) shall apply separately to the appointment of Commercial Tax Officers by direct recruitment and to their appointment by transfer.”
6. Rule 22 of the State and Subordinate Service Rules, which is the general rule, which alone is relevant for the purpose of this case reads thus:
“22. Special representation.— All appointments to a service, class or category —
(i) by direct recruitment, except where the Government by a general or special order made in this behalf except such service, class or category;
(ii) otherwise than by direct recruitment, where the special rules lay down that the principle of reservation of appointments shall apply to such service, class or category, shall be made on the following basis;
Provided further that the carry forward vacancies and current reserved vacancies in a recruitment year shall be available for utilisation even where the total number of such reserved vacancies exceeds (52%) of the vacancies filled that year in case the overall representation of the Scheduled Castes and Scheduled Tribes in the total strength of the concerned grade or cadre, has not reached the prescribed percentage of reservation of (15%) for the Scheduled Castes and (6%) for the Scheduled Tribes respectively.”
7. Rule 5 of the Special Rules envisages applicability of Rule 22 of the State and Subordinate Service Rules (General Rules) for appointments to the above service. The relevant proviso to Rule 22 extracted hereinbefore postulates that the carry forward vacancies and current reserved vacancies in a recruitment year shall be available for utilisation even where the total number of such reserved vacancies exceeds 52% of the vacancies filled that year in case the overall representation of the Scheduled Castes and Scheduled Tribes in the total strength of the grade or cadre concerned, has not reached the prescribed percentage of reservation of 15% (subsequently increased to 16%) and for the Scheduled Tribes 6% (subsequently increased to 7%), as the case may be.
8. In G.M, S. Rly. v. Rangachari (1962) 2 SCR 586, AIR 1962 SC 36, the Constitution Bench per majority had held that the matters relating to employment cannot mean merely matters prior to the act of appointment nor can appointment to an office mean merely the initial appointment but must include all matters relating to employment 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 to a selection post. This principle was reiterated by a Bench of seven Judges of this Court in State of Kerala v. N.M Thomas (1976) 2 SCC 310, (1976) 1 SCR 906. The same was followed per majority in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India (1981) 1 SCC 246. It was thus interpreted by this Court that appointment would include promotion.
9. The reservation for Scheduled Castes and Scheduled Tribes in contradistinction to the rest of the Indian community and others are classified to accord fundamental right of equality of opportunity to the Scheduled Castes and Scheduled Tribes for the purpose of adequate representation in the services under the State. In Indra Sawhney v. Union of India 1992 Supp (3) SCC 217, (1992) 22 ATC 385, a larger Bench of nine Judges per majority, in which A.M Ahmadi, J. (as he then was) did not participate on the issue since it did not directly arise for decision therein, held that reservation of appointment or post under Article 16(4) is confined to initial appointment only and cannot extend to provide reservation in matters of promotion. However, this Court upheld the promotions made until the date of the judgment, namely, 16-11-1992 and held that wherever special rules have not provided reservation in appointment by promotion, the same was permitted to be done within 5 years from that date. Parliament amended Article 16 by 77th Constitution (Amendment) Act, 1995 which came into force from 17-6-1995 incorporating clause 4-A to Article 16 which reads thus:
“Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”
10. Parliament by amending the Constitution and introducing Article 16(4-A) has removed the base as interpreted by this Court in Indra Sawhney case 1992 Supp (3) SCC 217, (1992) 22 ATC 385 that appointment does not include promotion by making express provisions that when the State forms an opinion that members of the Scheduled Castes or Scheduled Tribes are not adequately represented in any service or to any class or classes of base in the service under the State, the State is empowered to make provisions for reservation by promotion. Article 16(1) does not prevent the State from making such a provision. In Indra Sawhney case 1992 Supp (3) SCC 217, (1992) 22 ATC 385 also, this Court reiterated that right to equality under Article 16(1) is equally applicable to the Scheduled Castes and Scheduled Tribes and Article 16(4) is not an exception. Reservation is part of the scheme of equality under Article 16(1). Article 16(4-A) would establish that the interpretation put up in Rangachari (1962) 2 SCR 586, AIR 1962 SC 36, Thomas (1976) 2 SCC 310, (1976) 1 SCR 906 and Karamchari Sangh (1981) 1 SCC 246 cases received parliamentary approval. It would thus be clear that as a principle of law, rule of reservation can apply not only to initial recruitment but also in promotions where the State is of the opinion that Scheduled Castes and Scheduled Tribes are not adequately represented in promotional posts in class or classes of service under the State. It is seen that Rule 22 of the General Rules provides reservation for appointment by direct recruitment. By constitutional parameters and interpretation of law by this Court, reservation under Articles 16(1), 16(4) and 16(4-A) would include reservation in promotion as well.
11. In view of the above, the stand taken by the Tribunal that Rule 22 would apply only for direct recruitment and not for appointment by promotion, is illegal.
12. The appeal is accordingly allowed, but in the circumstances, without costs.
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