Case Note & Summary
This appeal by special leave arose from an order of the Andhra Pradesh Administrative Tribunal dated December 2, 1992 in O.A. No.5158/92 concerning reservation in appointment by transfer and promotion to posts of Assistant Commercial Tax Officers and other similar posts. The State of Andhra Pradesh, through the Commissioner of Commercial Taxes, challenged the Tribunal's view that Rule 22 of the A.P. State and Subordinate Service Rules, which provides for special representation and reservation, did not apply to recruitment by transfer and promotion. The respondents were served with notice but did not appear either in person or through counsel. The posts in question were governed by rules framed under the proviso to Article 309 of the Constitution of India, issued in G.O. Ms. No.107 dated January 30, 1962 and G.O. Ms. No.81-Revenue dated February 3, 1990. The A.P. Commercial Tax Subordinate Service Rules, being the Special Rules, contained Rule 5 which provided that 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, except insofar as it relates to physically handicapped persons. Rule 22 of the General Rules dealt with special representation and allowed carry forward of reserved vacancies up to 52% of vacancies filled in a year if the overall representation of Scheduled Castes and Scheduled Tribes had not reached the prescribed percentages of 15% and 6% respectively, later increased to 16% and 7%. The core legal issues were whether Rule 22 of the General Rules applied to promotions by transfer in light of Rule 5 of the Special Rules, and whether reservation in promotion was constitutionally permissible after the 77th Constitutional Amendment. The appellant State argued that Rule 5 expressly incorporated Rule 22 for appointments by transfer, and that Article 16(4A) of the Constitution permitted reservation in promotion for Scheduled Castes and Scheduled Tribes if they were not adequately represented. The respondents made no submissions. The Supreme Court examined Rule 5 of the Special Rules and Rule 22 of the General Rules and concluded that the Tribunal's view was not correct. The Court traced the constitutional law on reservation in promotion: In General Manager, Southern Railway v. Rangachari (1962) 2 SCR 586, a Constitution Bench held that matters relating to employment include promotion to a selection post. This was reiterated by a seven-judge Bench in State of Kerala v. N.M. Thomas (1976) 1 SCR 906 and followed in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (1981) 1 SCC 246. However, in Indra Sawhney v. Union of India (1992) Supp. 3 SCR 217, a nine-judge Bench held that reservation under Article 16(4) is confined to initial appointment and cannot extend to promotion, though it upheld promotions made until November 16, 1992 and permitted reservation in promotion for five years where special rules had not provided for it. Subsequently, Parliament enacted the Constitution (Seventy-seventh Amendment) Act, 1995, inserting Article 16(4A) with effect from June 17, 1995, which expressly empowers the State to make provision for reservation in matters of promotion for Scheduled Castes and Scheduled Tribes if they are not adequately represented. The Court held that this amendment effectively removed the basis of the Indra Sawhney limitation and received parliamentary approval of the earlier interpretation in Rangachari, Thomas, and Akhil Bharatiya Soshit Karamchari Sangh that appointment includes promotion. Reservation is part of the scheme of equality under Article 16(1), and Article 16(4A) authorises reservation in promotion where the State forms the requisite opinion. Accordingly, the Supreme Court allowed the appeal, set aside the order of the Administrative Tribunal, and held that Rule 22 of the A.P. State and Subordinate Service Rules applies to appointments by transfer and promotion in view of Rule 5 of the Special Rules; the Tribunal's stand that Rule 22 applied only to direct recruitment was illegal. No costs were awarded.
Headnote
A) Service Law - Reservation in Promotion - Applicability of General Rule 22 to Special Rules - A.P. State and Subordinate Service Rules, Rule 22; A.P. Commercial Tax Subordinate Service Rules, Rule 5 - The Andhra Pradesh Administrative Tribunal held Rule 22 of the General Rules inapplicable to recruitment by transfer and promotion of Assistant Commercial Tax Officers. The Supreme Court found this incorrect because Rule 5 of the Special Rules expressly made Rule 22 applicable separately to direct recruitment and appointment by transfer. Held that the Tribunal's view was illegal; appeal allowed and the order set aside (Paras 1-3). B) Constitutional Law - Reservation in Promotion - Article 16(4A) of the Constitution of India - Constitution of India, 1950, Articles 16(1), 16(4), 16(4A) - Indra Sawhney had held Article 16(4) confined to initial appointment, but the 77th Constitution Amendment Act, 1995 inserted Article 16(4A) empowering the State to provide reservation in promotion for Scheduled Castes and Scheduled Tribes if they are not adequately represented. This amendment received parliamentary approval of earlier decisions in Rangachari, Thomas, and Akhil Bharatiya Soshit Karamchari Sangh that appointment includes promotion. Held that reservation can apply to promotions where the State forms the requisite opinion of inadequate representation (Paras 4-5).
Issue of Consideration
Whether Rule 22 of the A.P. State and Subordinate Service Rules, providing for special representation/reservation, applies to appointments by transfer and promotion to posts of Assistant Commercial Tax Officers etc., governed by the A.P. Commercial Tax Subordinate Service Rules; and whether the State can provide reservation in promotion for Scheduled Castes and Scheduled Tribes under Article 16(4A) of the Constitution.
Final Decision
The Supreme Court allowed the appeal, set aside the order of the Andhra Pradesh Administrative Tribunal dated December 2, 1992 in O.A. No.5158/92, and held that Rule 22 of the A.P. State and Subordinate Service Rules applies to appointments by transfer and promotion in view of Rule 5 of the Special Rules, and that reservation in promotion is constitutionally permissible under Article 16(4A) of the Constitution. No costs were awarded.
Law Points
- Rule 22 of A.P. State and Subordinate Service Rules applies to appointment by transfer and promotion when special rules so provide
- Article 16(4A) of Constitution of India empowers State to provide reservation in promotion for Scheduled Castes and Scheduled Tribes if not adequately represented
- reservation is part of scheme of equality under Article 16(1)
- appointment includes promotion as held in Rangachari
- Thomas
- and Akhil Bharatiya Soshit Karamchari Sangh
- 77th Constitution Amendment Act 1995 inserted Article 16(4A) and received parliamentary approval of earlier judicial interpretation
- carry forward vacancies and current reserved vacancies can exceed 52% if overall representation below prescribed percentage for SCs and STs
