THE STATE OF TELANGANA & ANR VERSUS B. SUBBA RAYUDU AND OTHERS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PEITTION (C) NOS. 156566 OF 2021]

THE STATE OF TELANGANA & ANR. ......PETITIONERS

VERSUS

B. SUBBA RAYUDU AND OTHERS ....RESPONDENTS

J U D G M E N T

INDIRA BANERJEE J.

These Special Leave Petitions are against a final judgment and order

dated 8th December 2020 whereby the High Court for the State of

Telangana and for the State of Andhra Pradesh at Hyderabad, allowed the

Writ Petitions filed by the Respondent No.1 being Writ Petition (TR.) No.

5482 of 2017 and Writ Petition No. 24820 of 2017, set aside an order being

F. No. 29/01/2016SR(S) dated 14th January 2016 of the Ministry of

Personnel, PG and Pensions and directed the Ministry of Personnel, PG and

Pensions to allocate the Respondent to the State of Telangana with effect

from 14th January 2016. The State of Telangana was directed to give a

posting to the Respondent in the cadre of Joint DirectorClass A in the

Animal Husbandry Department of the State of Telangana and also pay

salary to the Respondent as Joint DirectorClass A in the Animal

Husbandry Department within four weeks from the date of the judgment

and order.

2. The Respondent No.1, a member of a Scheduled Tribe, held the State

Cadre post of Joint DirectorClass A in the Animal Husbandry Department

of the undivided State of Andhra Pradesh. Smt. B. Shanthabai, wife of the

Respondent No.1, was also a State Government employee working as

Assistant Registrar in the same State.

3. By a Notification No.S.O.655B dated 4th March 2014, the Central

Government notified the Andhra Pradesh Reorganisation Act, 2014

bifurcating the State of Andhra Pradesh into two States the new State of

Telangana and the residue state of Andhra Pradesh with effect from 2nd

June 2014.

4. In terms of Section 80 of the Andhra Pradesh Reorganisation Act,

2014, the Central Government issued a Circular being F. No.

27/13/213/SRS dated 29th October 2014 laying down guidelines for

allocation of employees to the States of Telangana and Andhra Pradesh,

respectively.

5. As per the said Guidelines and in particular Paragraph No. 12 Clause

(vii) thereof, no allocable posts were to be omitted while distributing the

cadre strength between the States of Telangana and Andhra Pradesh.

6. By a Circular being G.O. Ms.312 dated 30th October 2014, the

Government of Andhra Pradesh circulated the approved Guidelines for final

allocation of State Government Employees to All India Services under the

Andhra Pradesh Reorganisation Act, 2014. Some of the relevant provisions

of the Guidelines are set out hereinbelow for convenience:

“18. The following principles and procedure shall guide the final

allocation of personnel:

a) Persons who immediately before the appointed day are serving

on substantive basis in connection with the affairs of the existing

State of Andhra Pradesh shall be considered for allocation,

Employees holding posts on purely ad hoc basis immediately before

the ‘appointed day’ shall be considered against substantive posts

(or regular) held by them on the ‘appointed day’ if any.

b) Allocation of employees would be based on final distribution of

posts including vacant posts proposed by the Advisory Committee in

consultation with the successor States and after approval of the

Central Government.

c) Allocable employees shall be considered for allotment between

the successor States on the basis of seniority list as available on

June 01, 2014.

d) ….There shall not be any case of an employee not being

allocated to either of the successor States.

e) State service employees who hold allocable posts shall be

allocated after seeking option from the employees indicating their

preference to serve in either of the successor States after taking

their option into consideration.

f) The allocation shall be done in order of seniority as

available on June 01, 2014. Those who have opted, who are

‘local candidate’s’ relatable to the State to which they have

opted, shall, in order of their seniority, be considered for

allocation first. If allocable posts in that category remain,

then others who have opted to the state may be allocated in

order of seniority. If still posts remain allocation will be

made in reverse order of seniority.

…

h) Employees who are not local in relating to both States will be

allocated on the basis of place of birth or home district, as the case

may be, after due verification and certification. Those originally

from other States will be allocated on a case by case basis after

considering their option.

i) Employees who are members of the Scheduled Castes or

Scheduled Tribes shall be considered for allocation on the basis of

their option if they are local candidates. IN the event an SC or ST

employee has not exercised his option or where he has not been so

allocated he/she shall be allocated to the State where his caste or

tribe, as the case may be, is included in the concerned schedule of

the State.

…

k) Spouse of an All India Service (AIS) officer who belongs to a State

Cadre or is an employee of a State Government institution shall be

allocated, where so desired by the spouse, to the State to which the

AIS officer is allocated.

l) Spouses in State Cadre in Government or in the State

Government institutions, local bodies and those who are

deemed allocated as per the Act, shall as far as practicable,

be allotted to the same State, after considering options made

by them and their local candidature. Spouses who are local

candidates of a State Shall be allocated to that State.

Spouses who belong to different States may be allocated

after considering their options.

…

n) Local candidature shall be as defined under the Andhra

Pradesh Public Employment (Organisation of Local Cadres

and Regulation of Direct Recruitment) Order, 1975 as

certified by the competent authority, with strict reference to

the school records. While the committee may take into

consideration entry made in the service register as prima

facie proof of local candidature, it shall be open to either

government or the committee to subject the genuineness of

the employee’s local candidature status to strict verification.

False claim of local candidature or production of false

certificate with the intent to mislead shall be punishable as

a criminal offence and also be subject to major disciplinary

proceedings.

…

s) Employees belonging to allocable categories of one department

working in another department or organisation on

deputation/tenure basis will be allotted by the parent department of

the officer.

x) The actual allocation of personnel to States shall be guided by

the public interest and the administrative needs of the posts in the

States.

19. The Committee shall follow the procedure hereinafter mentioned

for allocation of employees:

i. All employees would be asked to exercise their options in the

prescribed proforma annexed to these Guidelines, and forward their

duly filled option form to the Member Secretary, Advisory

Committee, G A State Reorganisation Department. A P Secretariat

electronically and through the proper channel indicating their

preference for either of the States within two weeks from the date of

public notification calling for options.

ii. Letter calling for options shall be given wide publicity through

print and electronic media. A copy of the letter shall also be placed

in the public domain for wide publicity.

iii. The employees, who are eligible for allocation to either of the

successor States as specified above, will submit their option form

addressed to the Member Secretary, Advisory Committee through

the respective Administrative Departments of the Government in

which they are working, to the Andhra Pradesh State General

Administration State Reorganisation Department.

iv. Scrutiny of statements made in the option forms shall be done

and factual accuracy of the statement made therein certified by the

head of the department under whom the employee is working. The

forms so certified shall be delivered to the GA (SR) Department of

the A P Government.

v. If no option is received within the prescribed time, or where an

employee is willing to be allotted to either of the two states such

person shall be allotted based on the other criteria.

vi. Option once exercised cannot be changed under any

circumstance.

vii. After the distribution of posts is finalised, the Advisory

Committee will draw up, with the help of the departments

concerned and the G A State Reorganisation Department of A P

Government, a Tentative Allocation List for all employees whether

they have exercised option or not. The Member Secretary of the

Advisory Committee will circulate the Tentative Allocation List to the

respective successor State Government for information of their

employees and for submission of representations, if any, by such

employees, within a period of two weeks from the date of such

communication. The GA State Reorganisation Department of AP is

required to issue the Tentative Allocation List on behalf of the

Advisory Committee. The list shall be widely published and

circulated inviting representations of employees against their

tentative allocation.

20. Representations against tentative allocation may be received

and disposed off in the following manner:

i. An employees who feels aggrieved by his tentative allocation,

as prepared by the Advisory Committee would be at liberty to

submit his representations to the Chief Secretary to the successor

State in which he is serving, with a copy to the State

Reorganisation Department constituted in the State of Andhra

Pradesh.

ii. Representation of an employee should be selfcontained, clearly

indicating the specific points of grievance and should be

addressed to the Advisory Committee. The concerned

administrative department will offer its views on the

representation and forward it to the G A State Reorganisation

Department of the Government of AP.

iii. The successor State of Andhra Pradesh shall furnish its official

comments in the light of the remarks of the administrative

department on the representations received keeping in view of

law, rules, and orders, and would forward the same for further

consideration of the Advisory Committee.

iv. The Advisory Committee will consider the representation of the

employees after taking the views of Administrative Department

concerned at a meeting attended by the representatives of the two

States and the Central Government. The recommendations will

thereafter be forwarded to the Central Government with the

recommendations of the Advisory committee for taking a final view

in the matter.

v. Based on the recommendations of the Advisory Committee, the

Central Government shall issue final allocation orders under

Section 77 of the Act allocating the employees to either of the

State.

vi. The Central Government shall have the power to review any of

its orders issued under the Act.

vii.The Member Secretary of the Committee would be responsible

for guiding the Advisory Committee in this regard.”

7. The sanctioned strength of posts in the cadre of Joint DirectorClass

A in the Animal Husbandry Department were 23, out of which, 13 posts

were allotted to Andhra Pradesh and 10 posts were allotted to Telangana.

At the time of bifurcation, two out of the 23 posts were vacant.

8. On 7th March 2015, the Respondent opted for allocation to the State

of Telangana. At the material point of time, the Respondent was working as

Project Director, ATMA, Ranga Reddy District, Hyderabad on deputation.

However, by a Notification No. 21105B/SRI/AI/20144 dated 12th June

2015, the Respondent was allotted to the State of Andhra Pradesh

tentatively. The Respondent submitted his objection against his tentative

allocation to the State of Andhra Pradesh on 26th June 2015, pursuant to

the proceedings being GAD(SR), Department, Notification No.

21105/B/SRI/20144.

9. On 26th June 2015, the Respondent made a representation that he be

considered a local candidate of the State of Telangana. The representation

was not considered. By an order No. 5(2)/2016 dated 14th January 2016

in the proceedings being F. No. 29/01/2016, the Ministry of Personnel, PG

and Pensions of the Department of Personnel and Training, Government of

India, allotted the Respondent to the State of Andhra Pradesh.

10. The Respondent filed an application being O.A No.209/2016 before

the Central Administrative Tribunal at Andhra Pradesh, challenging the

aforesaid allocation order dated 14th January 2016 issued by the

Government of India. On 29th January 2016, the Administrative Tribunal

issued notice in the application and passed an interim order to the effect

that the final allocation of the Respondent to the State of Andhra Pradesh

would be subject to the final result of the Original Application.

11. By an order 4th February 2016, the Animal Husbandry, Dairy

Development and Fisheries Department of the Government of Telangana

relieved the Respondent. By an order dated 5th February 2016, the

Government of Telangana, Department of Animal Husbandry, directed the

Respondent No.1 to report to the Head of the Department, Andhra Pradesh

for further posting.

12. The Respondent filed a Writ Petition being Writ Petition No. 4391 of

2016 in the High Court challenging the interim order dated 29th January

2016 passed by the Administrative Tribunal. By an order dated 16th

February 2016, the High Court allowed the Writ Petition No. 4391 of 2016

and remanded the matter back to the Tribunal for fresh consideration and

directed the Tribunal to pass a speaking order, after hearing both the

parties, within two weeks. It was also directed that the Respondent No.1

should not be relieved from his present place of posting till disposal of the

Interlocutory Application.

13. By an Order being Memo No. 8356/Agri(1)/2016 dated 16th January

2017, the Government of Telangana Agriculture and Cooperation

Department, repatriated the Respondent No.1 with instructions to report to

his parent Department with immediate effect.

14. On 7th March 2017, the Respondent informed the Commissioner and

Director of Agriculture Department and handed over complete charge of the

post of Project Director, ATMA, Ranga Reddy District to Shri Y. Sudhakar

Reddy.

15. On the same date i.e. 7th March 2017, the Respondent was relieved

from the post of Project Director, ATMA, Ranga Reddy District and a

certificate of transfer of charge was issued to him.

16. In 2017, the Administrative Tribunal for the State of Telangana was

abolished and the case being O.A. No. 209/2016 filed by the Respondent

was transferred to the High Court for the State of Telangana and for the

State of Andhra Pradesh at Hyderabad and was renumbered as Writ

Petition (TR) No. 5482 of 2017.

17. By the impugned judgment and order dated 18th February 2017, the

High Court allowed both the Writ Petitions, setting aside the proceedings

being F. No. 29/01/2016SR(S) dated 14th January 2016 (Final Allocation

Order) of the Ministry of Personnel, PG and Pensions, insofar as it

concerned the Respondent No.1.

18. The Ministry was directed to allocate the Respondent No.1 to the

State of Telangana with effect from 14th January 2016 and the State of

Telangana was directed to forthwith give posting to the Respondent in the

cadre of Joint Director, ClassA in the Animal Husbandry Department of

the State of Telangana and also to release his salary within four weeks.

19. Mr. Aman Lekhi, learned Additional Solicitor General, appearing on

behalf of the petitioner, submitted that allocation had been made by the

Respondent No.5, i.e., the Government of India in the manner laid down by

law, i.e., as per Sections 77(2) and 80 of the Andhra Pradesh

Reorganization Act, 2014, hereinafter referred to as the “Act of 2014”, read

with the Final Allocation Guidelines issued on 29/30th December 2014.

20. Mr. Lekhi submitted that Section 77(2) of the 2014 Act provides that

as soon as may be, after the appointed day, the Central Government shall,

by general or special order, determine the successor State to which every

person referred to in Section 77(1) shall be finally allotted for service, after

consideration of option received from the employees, and the date with

effect from which such allotment shall take effect or be deemed to have

taken effect. The second and third proviso to the said Section provides that

“as far as local, district, zonal and multizonal cadres are concerned, the

employees shall continue to serve, on or after the appointed day, in that

cadre: provided also that the employees of local, district, zonal and multi

zonal cadres which fall entirely in one of the successor States, shall be

deemed to be allotted to that successor State”.

21. Mr. Lekhi further submitted that Section 80 of the 2014 Act provides

for the constitution of Advisory Committee (AC) and for the issue of

allocation guidelines by the Central Government. The Government of

Andhra Pradesh vide GOMs No. 312 dated 29/30th December, 2014 notified

the final allocation guidelines prepared under Section 80 of the 2014 Act.

The allocation of personnel was to be made in the manner provided under

Guideline 1417 and the allocation was to be made in terms of the

principles guiding allocation laid down in Guideline 18 of the final

allocation guidelines.

22. It is not in dispute that by virtue of Guideline 18(c) of the Allocation

Guidelines, the allocation from amongst allocable employees was to be

made between the States of Andhra Pradesh and Telangana in order of

seniority as available on 1st June, 2014.

23. Mr. Lekhi, however, submitted that the allocation was not to be made

solely on the basis of seniority. Local candidates of the State for which they

opt are to be considered in order of their seniority first. If the allocable

posts in that category still remain, then others who have opted might be

allocated in order of seniority.

24. Mr. Lekhi, argued that allocation was to be made first amongst those

local candidates of the State, who had opted for the State in order of their

seniority and thereafter, if allocable posts still remained, those posts were

to be filled up in the order of seniority from amongst nonlocal candidates

who had opted for the State.

25. Mr. Lekhi argued that the respondent No.1 had submitted his option

on the ground that he was a State Cadre employee and his wife a State

Government employee in the State of Telangana. Mr. Lekhi submitted that

a tentative allocation list of the State Cadre employees between the States

of Andhra Pradesh and Telangana was prepared and notified on 12th June,

2015 whereunder the Respondent No.1 was tentatively allocated to the

State of Andhra Pradesh.

26. The employees were given 14 days for filing representations/objections

against the tentative allocation and the Respondent No.1 had made a

representation to be considered as local candidate of the State of

Telangana.

27. The representation was considered by the Allocation Committee in

consultation with the heads of the department at meeting held on 16th

November 2015, but the request of the Respondent No.1 for allocation to

Telangana was not accepted for the following reasons :

“(i) He is a ‘local candidate’ of Andhra Pradesh.

(ii) His request for allocation to Telangana on spouse ground

could not be accepted as his spouse was appointed to a

Zonal Cadre, i.e., ZoneII of erstwhile Andhra Pradesh

which entirely fell under the Successor State of Andhra

Pradesh and she was deemed allocated to Andhra

Pradesh as per provisions of Section 77(2) of the 2014 Act.

(iii) There was no vacancy in the State of Telangana to

accommodate him.”

28. Mr. Lekhi further submitted that the High Court erred in describing

the Respondent No.1 as a local candidate in the judgment and order

impugned ignoring the deemed appointment of his wife under Section 77(2)

of 2014 Act and disregarding the absence of vacancies.

29. Mr. Lekhi argued that the cadre strength in the category of Joint

directorClass A in Animal Husbandry Department was 23, of which 14

posts were allocated to Andhra Pradesh and 9 posts were allocated to

Telangana. However the number of allocable employees in the category of

Joint Director – Class A was 27 and out of 27 employees, 12 employees,

who were local to the State of Telangana and had also opted for the State of

Telangana, were finally allocated to the State of Telangana against the 9

posts as per provisions contained in Guideline 18(f).

30. Mr. Lekhi argued that the Respondent No.1 who was ‘local candidate’

of the State of Andhra Pradesh was finally allocated to the State of Andhra

Pradesh on 14th January, 2016 by the Ministry of Personnel, PG and

Pensions, Department of Personnel and Training vide proceeding F No.

29/01/2016SR(S).

31 Ms. Mohana appearing on behalf of the Respondent No.1 submitted

that the impugned judgment and order of the High Court is well reasoned

and does not call for interference under Article 136 of the Constitution of

India.

32. Ms. Mohana argued that Article 136 of the Constitution of India does

not create a regular forum of Appeal. It is only a residual provision which

enables this Court to interfere with the judgment and order of any Court or

Tribunal in India, in its discretion, as observed by this Court in

Suriyakala v. A. Mohandoss and Ors.1

33. Citing M/s Bengal Chemical and Pharmaceutical Works Ltd. v.

Their Employees2

, Ms. Mohana argued that since power under Article 136

of the Constitution of India was discretionary, this Court was not bound to

set aside an order under Article 136, even if it was not in conformity with

law.

1 (2007) 9 SCC 196

2 AIR 1959 SC 633 (at 635)

34. Ms. Mohana also cited Kunhayammed & Ors. v. State of Kerala

and Another3

, State of Bombay v. Rusy Mistry4

, Municipal Board,

Pratabgarh and Another v. Mahendra Singh Chawla and Others5

and

Chandra Singh v. State of Rajasthan6

35. Ms. Mohana argued that the Respondent No.1 was a local candidate

of the State of Telangana. In any case, his spouse was a native of Telangana

and posted in Telangana. As such, the Respondent No.1 was also eligible

under paragraph 18(1) of the said Guidelines dated 30th October 2014 for

allocation to the State of Telangana.

36. Ms. Mohana referred to the definition of ‘Local Candidate’. In the

definition of local candidate in paragraph 7 of the Andhra Pradesh Public

Employment Order, 1975 which reads:

“1. A candidate for direct recruitment to any post shall be regarded

as a local candidate in relation to a local area.

(a) in cases where a minimum educational qualification has been

prescribed for recruitment to the post.

(i) if he has studied in an educational institution or educational

institutions in such local area for a period of not less then four

consecutive academic years ending with the academic year in

which he appeared or, as the case may be, first appeared for the

relevant qualifying examination; or

(ii) where during the whole or any part of the four consecutive

academic years ending with the academic year in which he

appeared or as the case may be, first appeared for the relevant

qualifying examination he has not studied in any educational

institution, if he has resided in that local area for a period of not

less than four years immediately preceding the date of

commencement of the qualifying examination in which he

appeared or as the case may be, first appeared.

3 (2000) 6 SCC 359

4 AIR 1960 SC 391 (at 395)

5 (1982) 3 SCC 331

6 AIR 2003 SC 2889

(b) In cases where no minimum educational qualification has been

prescribed for recruitment to the post, if he has resided in that local area

for a period of not less than resided in that local area for a period of not

less than four years immediately proceeding the date on which the post

in notified for recruitment.”

37. Ms. Mohana pointed out that the Respondent No.1 had studied at

Khammam in the State of Telangana from Class VIII to X. Thereafter he did

his Bachelor of Veterinary Science and Animal Husbandry and Master of

Veterinary Science at the college of Veterinary Science, AP, Agricultural

University, Rajendernagar, Hyderabad (Telangana) from 1985 to 1992. Ms.

Mohana argued that having studied in the State of Telangana for 7

consecutive years ending with the academic year in which he appeared for

qualifying examination, the Respondent No.1 was a local candidate within

the meaning of Andhra Pradesh Public Employment (Organisation of Local

Cadres and Regulation of Direct Recruitment) Order, 1975 (hereinafter

referred to as “Andhra Pradesh Public Employment Order, 1975”).

38. Ms. Mohana emphasised that the Respondent No.1 had initially been

appointed as Assistant Director in Chevella Ranga Reddy District,

Hyderabad in 1993 through an examination conducted in the unified State

of Andhra Pradesh vide Recruitment Notification issued in 1992 by the

Andhra Pradesh Public Service Commission.

39. The Petitioner had studied at educational institutions in the State for

a period of not less than 7 consecutive academic years ending with the

academic year in which he first appeared for the relevant qualifying

examination and was selected and appointed by direct recruitment. The

Respondent No.1 is therefore, to be regarded as a local candidate to the

zone in which the city of Hyderabad falls.

40. Referring to Clause 18(f) of the Andhra Pradesh State Guidelines

issued on 30th October 2014, the final allocation of the State Cadre

Employees to the two states of Telangana and Andhra Pradesh shall be

done on the basis of seniority as available on 1st June 2014.

41. Ms. Mohana also referred to paragraph 18(i) of the State Allocation

Guidelines under which employees who are members of the Scheduled

Castes or the Scheduled Tribes are to be considered for allocation on the

basis of their option if they are local candidates. If an SC or ST candidate

has not exercised his option or where he has not been so allocated, he/she

shall be allocated to the State where his caste or tribe, as the case may be,

is included in the concerned schedule of the State.

42. Ms. Mohana emphasized on Clause 18(f) of the Guidelines dated 30th

October 2014, which clearly states that allocable employees shall be

considered for allotment between the Successor States on the basis of

seniority list as on 1st June 2014. As per the seniority list, the position of

the Respondent No.1 was at Sr. NO.4. All the three employees senior to the

Respondent No.1 were allocated State of Andhra Pradesh as per their

preference. The Respondent No.1 was thus the senior most in his cadre to

opt for the State of Telangana. Ms. Mohana argued that the Union of India

gave no weight to seniority of the Respondent No.1 and filled up vacancies

by persons who are native of Telangana, which is patently contrary to

clause 18 (f) of the Guidelines. Ms. Mohana argued that the High Court

had correctly held that denial of posting to the Respondent No.1 from 8th

March 2017 onwards and denying him salary from that date onwards was

illegal. The Respondent No.1 was entitled to be paid salary from 8th March

2017 till date of posting by State of Telangana with interest at the rate of

7% per annum.

43. Ms. Mohana argued that the wife of the Respondent No.1 admittedly

being a local candidate of Telangana allocated to Telangana, the

Respondent No.1 needs to be allocated to Telangana. Ms. Mohana argued

that in any case the Respondent No.1 ought not have been relieved from

service in the State of Telangana while order of stay was operating in his

favour.

44. Ms. Mohana argued that after the Respondent No.1 was released

from ATMA, Rangareddy District on 7th March 2017, he reported to Animal

Husbandry Department Telangana and requested that he be given up the

posting but to no avail.

45. The contentions of the Petitioners and the Respondent No.1 have

carefully and meticulously been dealt with by the High Court in its

impugned judgment and order. The High Court noted:

“7. Aggrieved thereby, petitioner gave a representation

dt.26.06.2015 stating that though he was born in Kadapa

District of Andhra Pradesh, he had studied Classes VIII, IX and

X at Khammam in the State of Telangana and subsequent

education including Post Graduation was also in the Telangana

State and so he is to be considered as a local candidate of

State of Telangana; he was initially appointed as Assistant

Director in Chevella, Ranga Reddy District in Telangana State

through an examination conducted by the A.P. Public Service

Commission in 1993 and he had only worked in Telangana

State; his wife was working in the Office of the Commissioner

of Cooperation and Registrar of Cooperative Societies,

Telangana State, Hyderabad as Assistant Registrar; that she

was initially appointed as Junior Assistant in Krishna District

of the present residuary State of Andhra Pradesh against 'nonlocal' category as per the Andhra Pradesh Public Employment

(Organization of Local Cadres and Regulation of Direct

Recruitment) Order, 1975 issued by the President of India

under Clauses (1) and (2) of Article 371D of the Constitution of

India notified vide G.O.Ms.No.674, General Administration

(SPF A) Department dt.29.10.1975 (also called 'Presidential

Order of 1975'); during bifurcation process of the employees

between the two States, she was allotted to Telangana State by

way of an 'Order to Serve' proceeding dt.31.05.2014 of the

Director, Ministry of Public Grievances and Pensions,

Government of India; she was reallocated to the residuary

State of Andhra Pradesh subsequently; that she gave objection

to the same stating that she was born, brought up and

educated in Telangana State and she had rendered service for

16 years in the area covered by the said State and her

reallocation to Andhra Pradesh was absurd, illegal; that the

same was pending for consideration; that unless his wife's

request is considered or finalized his allotment ought not to be

considered.

He also stated that he had two children born and brought up

in Hyderabad, aged 15 years and 12 years respectively, who

were in Classes 10 and 8 respectively, and if he is allotted to

the State of A.P., their studies would be adversely affected.

He also stated that as per the Seniority List in the Cadre of

Joint Director, his position was at Serial No.4 and there are

existing vacancies in the Telangana State since three Joint

Directors from Telangana State were allotted to Andhra

Pradesh.

At the time of these events, petitioner was working as Project

Director, ATMA, Ranga Reddy District, Hyderabad in the

Agriculture Department of the State of Telangana on

deputation.”

46. The High Court found that notwithstanding the factors noted above

and notwithstanding the fact that the Respondent No.1 was actually

working as Project Director, ATMA, Ranga Reddy District, Hyderabad in the

Agriculture Department of the State of Telangana, at the time when the

State of Andhra Pradesh was bifurcated, the Respondent No.1 was allocated

to the State of Andhra Pradesh.

47. The High Court found that the Respondent No.1 had continued to

work as Project Director, ATMA, Ranga Reddy District in the Agriculture

Department on deputation, pursuant to the order dated 16th February 2016

of the High Court referred to hereinabove. The Respondent No.1 was

apparently repatriated from the post of Project Director, ATMA, Ranga

Reddy District on 7th March, 2017, after which he made several

representations to the Special Chief Secretary, Animal Husbandry

Department, Government of Telangana that he be given posting. No

posting orders were, however, issued for over four and a half years and no

salary was paid to the Respondent No.1

48. On or about 19th October, 2016, Smt. B. Shantabai, wife of the

Respondent No.1, who had earlier been working in Telangana but later

allocated to Andhra Pradesh in 2017, made a representation for transfer to

Telangana on mutual basis with one B. Geethavani, who was not interested

in continuing in Telengana in view of her husband’s condition of health. In

the said representation, she stated that she was willing to forego her

seniority and willing to take the last rank below the last regular Assistant

Registrar working in ZoneVI in the State of Telangana. It appears that the

State of Andhra Pradesh issued GOMs No. 51 Agriculture and Cooperation

(COOP.I) Department dated 12th June, 2017 according permission to

transfer Smt. B. Shantabai, wife of the Respondent No.1 to the State of

Telangana.

49. On and from 14th June 2017, Smt. B. Shantabai was posted as

Assistant Registrar in the office of the Commissioner for Cooperation and

Registrar of Cooperative Societies. The Respondent No.1 was however,

allocated to the State of Andhra Pradesh, ignoring his option for the State of

Telangana and in violation of the Guidelines issued vide G.O.Ms No. 312

dated 30th October 2014 and, in particular, Clause (1) of Para 18 set out

hereinbelow for convenience :

"Spouses in State cadre in Government or in State Government

institutions, local bodies and those who are deemed allocated as per

the Act, shall as far as practicable, be allotted to the same State,

after considering options made by them and their local candidature.

Spouses who are local candidates of a State shall be allocated to that

State. Spouses who belong to different States may be allocated after

considering their options. "

50. The allocation was also in contravention of the requirement of Clause

(f) of Paragraph 18 directing that allocation shall be done in order of

seniority as available. On behalf of the Respondent No.1, it was rightly

contended that the spouse of the Respondent No.1 who had been born and

educated in the State of Telangana had to be treated as a local candidate of

the State of Telangana. As a spouse, the Respondent No.1 ought to have

been allocated to the State of Telangana.

51. The High Court considered the Counter Affidavit filed by the State of

Telangana at length and found :

“28. The State of Telangana and its Director of Animal

Husbandry who were impleaded as respondent nos.4 and 5 in

O.A.No.209 of 2016 / W.P. (TR) No.5482 of 2017 filed counteraffidavit / V.M.A.No.205 of 2016 in O.A.No.209 of 2016 (renumbered as WVMP(TR).No.703 of 2017) to vacate the order

dt.29.01.2016 granted by it and dismiss the O.A. / W.P.

29. In the said counteraffidavit, it is stated that petitioner's

wife had been appointed in Krishna District and promoted as

Assistant Registrar in ZoneII (Zonal Cadre Post), that her

seniority was also declared in the said Zone which falls in the

State of Andhra Pradesh and as per Section 77(2) of the A.P.

Reorganization Act, 2014 she has to work in the said State

only.

30. Therefore, it is stated that petitioner cannot claim that his

wife is working in the State of Telangana and claim allotment

to the Telangana State on 'spouse' grounds.

31. It is stated that petitioner belongs to the State of Andhra

Pradesh as per his local candidature and so he has been

allocated to the home State of Andhra Pradesh based on

availability of posts in the said State.

32. It is however stated that petitioner's representation

regarding his provisional allocation to the State of Andhra

Pradesh and the local status of his wife were referred to the

Commissioner of Cooperatives and Registrar of Cooperative

Societies, Hyderabad and the latter vide

Lr.Roc.No.778/MINC/2014 dt.22.04.2015 informed that as on

that date petitioner's wife is working as Assistant Registrar in

the Office of Commissioner & Registrar of Cooperative

Societies, Andhra Pradesh at Hyderabad.

33. It is admitted that petitioner while working as Joint

Director (Animal Husbandry) at District Project Office, Rajiv

Vidya Mission had submitted option form to the Animal

Husbandry Department exercising his option for the State of

Telangana as per preferential claim in terms of para 18(i) of the

option form and also enclosed details of his spouse, but his

request cannot be accepted, and the decision was taken in

accordance with the guidelines for final allocation.

34. In W.P.No.24820 of 2017, the State of Telangana and the

Director of Animal Husbandry Department filed a counter

stating that as per para no. 18(i) of G.O.Ms.No.312

dt.30.10.2014, 'employees who are members of the Scheduled

Castes or the Scheduled Tribes shall be considered for allocation on

the basis of their option if they are local candidates'; that

petitioner is a local candidate of Cuddapah District of Andhra

Pradesh State; and so, petitioner cannot contend that his

allocation to the State of A.P. is incorrect.

35. It is admitted that petitioner's wife had joined in the State

of Telangana in 2017, but it is contended that petitioner falsely

pleaded that his wife was working in Telangana State at the

time of filing of O.A.No.209 of 2016 and the said plea is not

correct.

36. It is stated that though petitioner obtained order on

16.02.2016 in W.P.No.4391 of 2016 that he should not be

relieved from his present place of work in the post of Project

Director, ATMA, Ranga Reddy District in the Agriculture

Department of the Telangana State, he was relieved because at

the time of reorganization of Districts in the State of

Telangana, the ATMA Scheme was merged with Farmer

Training Centers, etc. pursuant to a policy decision.”

52. The State of Andhra Pradesh did not file any counter affidavit in the

High Court. A counter affidavit has been filed on behalf of the Union of

India admitting that 14 posts of Joint Directors were allotted to the State of

Andhra Pradesh and 09 posts were allotted to the State of Telangana. The

number of allocable employees in the cadre of Joint Director were 27 more

than the sanctioned cadre strength. The excess allocable employees were

allocated between successor States on population ratio as per Guidelines.

The Respondent No.1 though local to the State of Andhra Pradesh had

opted for Telangana but he was allotted to the State of Andhra Pradesh as

per Paragraph 18(f) of the Guidelines, since there was no vacancy within

the filled posts in Telangana.

53. The Union of India contended that the request of the Respondent

No.1 for allocation to Telangana on the ground of his spouse being a local of

Telangana could also not be accepted as his spouse belonged to the zonal

cadre of Andhra Pradesh.

54. The High Court held :

“46. Para 18 of the said G.O. mentioned the

guidelines/principles which would be followed for the purpose

of allocation of employees.

47. Clause (e) of Para 18 stated that 'State Service employees

who hold allocable posts shall he allocated after seeking option from

the employees indicating their preference to serve in either of the

successor States after taking their option into consideration.'

48. Admittedly, petitioner gave his option for allocating him to

the State of Telangana on 07.03.2015.

49. Admittedly, of the total 23 posts in the Animal Husbandry

Department of the composite State of Andhra Pradesh, 9 posts

were allocated to the State of Telangana and 14 posts were

allocated to the residuary State of Andhra Pradesh.

50. Clause 18(c) of the guidelines states that allocable

employees shall be considered for allotment between the successor

State on the basis of seniority list as available on 01062014.

xxx xxx xxx

53. The petitioner's position in the seniority list of Joint

Directors (clauseA) in the composite State of Andhra Pradesh

as on 02.06.2014 was Sl.No.4.

54. The three people who were senior to him by name

Tanikonda Damodar Naidu, Koneti Venkata Ramana,

M.Srinivasa Rao, who were local candidates of Andhra

Pradesh, opted for the State of Andhra Pradesh and were

allocated temporarily to the State of Andhra Pradesh as can be

seen from Notification dt. 12.06.2015 issued by the General

Administration (SR) Department of the Government of Andhra

Pradesh and also as per annexureI to the final allocation order

No.5(2)/2016 dt. 14.1.2016.

55. Therefore, the petitioner is the senior most among persons

in the Cadre of Joint Director ClassA to opt for the State of

Telangana.

xxx xxx xxx

57. Thereafter the latter part of subClause (f) of Clause 18

which says 'if allocable posts in that category remain, then, others

who have opted to the State may be allocated in order of seniority'

will come to the aid of the petitioner; and because he is the

senior most available person in the cadre of joint Director Class

A, his claim for allocation permanently to the State of

Telangana, would have primacy over the claims of all his

juniors in the said cadre.

58. Instead of following the above procedure prescribed by

Clause (f) of Para 18, a strange interpretation was given in

para6 of its counter is adopted by the Union of India saying

'due to nonavailability of vacancy within the filled posts in

Telangana', petitioner, though he had opted for the State of

Telangana, had to be allocated to the State of Andhra Pradesh.

59. This suggests that the Union of India gave no weight at all

to the seniority of the petitioner or to the fact that he was the

senior most person in the cadre of Joint Director ClassA to opt

for the State of Telangana, proceeded to fill up the vacancies

allocated to the State of Telangana by persons who are 'natives

of Telangana', and then took a stand that there are no

vacancies in Telangana State, where the petitioner can be

accommodated. This procedure is patently contrary to Para

18(f) of the Guidelines.

xxx xxx xxx

62. In the counteraffidavit filed by the State of Andhra

Pradesh, in O.A.No.209 of 2016/V.M.A.No,398 of

2016/W.V.M.P.(TR) No.701 of 2017 in W.P. (TR) No.5482 of

2017 it is stated in para6(f) that the Commissioner, Registrar

of Cooperative Societies, Hyderabad had stated in

Lr.No.778/Misc/2014 dt.22.04.2015 that petitioner's spouse

was working as Assistant Registrar in his Office at Hyderabad.

Admittedly, the petitioner's spouse was initially appointed in

'nonlocal' category in ZoneII falling in the residuary State of

Andhra Pradesh, because she was a 'local candidate' to the

State of Telangana. She ultimately was posted on mutual

transfer to the State of Telangana in June, 2017.

63. Therefore, the Union of India cannot harp on the

petitioner's wife's belonging to the Zonal cadre of the State of

Andhra Pradesh to deny petitioner's claiming for posting in the

State of Telangana on spouse grounds. The State of Telangana

cannot also contend that the petitioner incorrectly stated that

his spouse was working in the State of Telangana and that she

does not 'belong to the State of Telangana'.

xxx xxx xxx

65. Therefore, the petitioner was entitled to be allocated to the

State of Telangana even on spouse ground and the Union of

India without taking note of the above facts erred in rejecting

petitioner's request for allocation to the State of Telangana even

on spouse ground.

xxx xxx xxx

68. Also since the petitioner had studied Classes VIII to X in

Khammam District in the State of Telangana and he states that

upto postgraduation, he studies in the State of Telangana,

under Para 7 of the Presidential order, 1975, he is a local

candidate' of the State of Telangana only, but ignoring this fact

and simply taking note of his place of birth as Cuddapah in

Andhra Pradesh State, he was wrongly treated as a 'local

candidate' for the State of Andhra Pradesh. So even under

Clause (i) of para 18, petitioner is eligible to be allotted to the

State of Telangana.

xxx xxx xxx

75. It is the contention of petitioner that the order No.5 (2) of

2016 dt.14.01.2016 permanently allocating the petitioner to the

State of Andhra Pradesh itself states in para no.2 thereof that it

would not come into effect in respect of any person who has

obtained 'stay order' from a Court of Law against his allocation

to any of the successor States till the time such stay order is

vacated; and since the order passed by the Division Bench on

16.02.2016 in Writ Petition No.4391 of 2016 directing the

petitioner not to be disturbed from his current posting is in the

nature of such 'stay order', the petitioner cannot be asked to

report to the State of Andhra Pradesh.

76. We find force in the petitioner's contention and agree with

it.

77. So the petitioner cannot be denied salary by the State of

Telangana from 8.3.2017 till date on the basis of the said

relieving order or the permanent allocation order

F.No.29/01/2016 SR(S) dt. 14.01.2016 (Order No.5(2)/2016)

Ministry of Personnel, PG & Pensions, Department of Personnel

and Training, Government of India.”

55. There is no infirmity in the well reasoned order of the High Court

which calls for interference of this Court in exercise of power under Article

136 of the Constitution of India. As argued by Ms. Mohana, jurisdiction

under Article 136 of the Constitution of India is discretionary. The

discretionary jurisdiction under Article 136 of the Constitution of Indian

should not ordinarily be exercised to interfere with an otherwise just and

reasonable order by recourse to hyper technicality upon a narrow, rigid and

pedantic interpretation of the guidelines.

56. Admittedly, at the time of bifurcation of the State of Andhra Pradesh,

the Petitioner was posted in an area which falls with Telangana. The

Petitioner was required to exercise an option, which he admittedly did. It is

not in dispute that 9 posts out of total 23 posts were allocated to the State

of Telangana and 14 to the State of Andhra Pradesh. As per guidelines,

allocable employees were to be considered on the basis of seniority as on 1st

June 2014.

57. As found by the High Court, the Petitioner’s position was 4th in

seniority in the composite State of Andhra Pradesh as on 1st June 2014.

The 3 people, senior to him, were all local candidate of Andhra Pradesh,

who had opted for Andhra Pradesh. The Respondent No.1 was senior most

of the employees who opted for Telangana. The High Court found that the

Respondent No.1 had denied allocation to Telangana on a “strange

interpretation of Clause (f) of paragraph 18 of the Guidelines, giving no

weight to seniority. The High Court found on facts that no importance at

all had been given to the fact that the spouse of the Respondent No.1 was a

local of Telangana.

58. On a possible interpretation of the Guidelines read with the Andhra

Pradesh Public Employment Order 1975 and, in particular, paragraph 4

thereof, the High Court found that the Respondent No.1 was local

candidate of the State of Telangana. Admittedly, he studied from Class VIII

to X at Khammam which is in the State of Telangana. He thereafter did his

Bachelor of Veterinary Science and Animal Husbandry and Master of

Veterinary Science at the college of Veterinary Science, AP, Agricultural

University at Hyderabad. He studied in that institution for 7 years from

1985 to 1992 being the year in which he appeared in the qualifying

examination.

59. Under the Constitution, India is a Union of States. Every part of

every State is an integral and inseverable part of India. Admittedly, the

Respondent was born in India. He has his domicile in the territory of India.

As held by this Court in Dr. Pradeep Jain v. Union of India7

, under the

Indian Constitution, there is only one domicile i.e. domicile of the country

and there is no separate domicile for a State.

60. The power to admit and include States into the Union under Article 2

of the Constitution, and to form new States and/or reorganize State, is in

its very nature of the power, wide and its exercise necessarily guided by

7 AIR 1984 SC 1420

political issues of considerable complexity, many of which may not be

judicially manageable.

61. Article 3, empowers Parliament to enact law and form a new State by

separation of territory from any State or by granting two or more States or

parts of States or by uniting any territory to a part of any State. The

principles relating to change of sovereignty in international law are not

applicable to reorganisation of the territory of the State under Article 3 of

the Constitution of India.

62. When such an adjustment or reorganisation of territory takes place,

the existing law as well as administrative orders in a particular territory

continue to be in force and continue to be binding upon the successor State

so long as they are not governed, changed or repudiated by the successor

State.

63. It is not in dispute that the respondent has his domicile in the

Territory of India and was born in the territory of India. Admittedly, he is a

citizen of this country. As a citizen of India, the respondent has a

fundamental right under Article 19(1)(e) to reside and settle in any part of

the territory of India.

64. Under Article 13 (2) of the Constitution of India prohibits the State

from making any law which takes away or infringes the rights conferred by

Part III of the Constitution of India and any law made in contravention of

Article 13(2), to the extent of the contravention would be void.

65. All statutes and all rules, regulations and byelaws framed by the

Government, which constitute law have to be construed harmoniously with

the fundamental rights guaranteed under PartIII of the Constitution of

India.

66. The Andhra Pradesh State Reorganisation Act, 2014 or any other

guidelines framed thereunder, including the guidelines circulated on

30.10.2014 cannot take away from citizens, the right to reside and settle in

any part of the country.

67. It is true that when a State is divided and the employees and officers

of the State Government have to be allotted to the two states, such

allocation has to be done on the basis of the Rules and Regulations and by

guidelines.

68. However, such rules, regulations and guidelines have to be construed

harmoniously with the fundamental rights guaranteed under the

Constitution of India. It is true that the respondent may have been born in

an area which now forms part of Andhra Pradesh and may have received a

substantial part of his education in areas which now form part of the State

of Andhra Pradesh. However, admittedly, he cleared all Board and

University examinations from areas within the State of Telangana. At the

time of bifurcation, he was posted in Hyderabad, which is now part of

Telangana.

69. The guidelines circulated on 30.10.2014 for allocation of employees

and officers to the States of Telangana and Andhra Pradesh are directory

and not inflexible. On a liberal interpretation of the guidelines in the light

of the philosophy of the Indian Constitution read with Andhra Pradesh

Public Employment Order, 1975, which was in force at the time of

bifurcation, and is applicable to the respondent even under the Guidelines

referred to above, the High Court rightly arrived at the conclusion that the

respondent was a local candidate of Telangana and was entitled to

allocation as per his seniority in terms of Paragraph 18(f) of the guidelines.

Furthermore, admittedly, the spouse of the respondent was a local

candidate of Telangana.

70. In our considered view, there is no infirmity in the impugned

judgment and order of the Division Bench of the High Court affirming the

judgment of the Single Bench.

71. The Special Leave Petitions are, accordingly, dismissed.

…..................................... J.

[INDIRA BANERJEE]

…..................................... J.

[V. RAMASUBRAMANIAN]

NEW DELHI;

SEPTEMBER 14, 2022

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THE STATE OF TELANGANA & ANR VERSUS B. SUBBA RAYUDU AND OTHERS

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