Holding

Substantive vacancies are synonymous with permanent posts, and the three Assistant Director of Sericulture positions were validly filled by direct recruitment.

Summary

Three candidates were directly recruited as Assistant Directors of Sericulture under the Andhra Pradesh Industries Service Rules. Their appointments were challenged by senior Inspectors of Sericulture on the ground that the required number of permanent posts did not exist, arguing that 'substantive vacancies' were not the same as permanent posts. The Andhra Pradesh Administrative Tribunal held the appointments illegal, stating that substantive vacancies could not be treated as permanent posts. On appeal, the Supreme Court examined the relevant service rules and held that the explanation to Rule 6 of the Andhra Pradesh State and Subordinate Service Rules treats vacancies in posts existing for more than ten years as permanent, making them substantive vacancies. Consequently, the three posts were deemed permanent and available for direct recruitment, and the appointments were upheld. The Court set aside the Tribunal’s order and dismissed the respondents’ petitions.

Issues considered

The meaning of 'substantive vacancy' under the Andhra Pradesh State and Subordinate Service Rules and whether it is synonymous with a permanent post.
Whether the requirement of more than five permanent posts for direct recruitment under the Andhra Pradesh Industries Service Rules was satisfied.
Whether the appointments of the three Assistant Directors of Sericulture were legal.

Subjects

service lawdirect recruitmentsubstantive vacancypermanent postappointment validityAndhra Pradesh service rulespromotion

Judgment

A A.K. NAZEER SAHEB AND ORS.
\! l_

A.P. PUBLIC SERVICE COMMISSION AND ORS.

FEBRUARY 19, 1998

B [MRS. SUJATA V. MANOHAR AND D.P. WADHWA, JJ.] ,
-<
Service Law :

Assistant Directors ofSeri culture-Appointment by direct recruitment-
c On challenge the Tribunal quashed the appointments holding that as there
was no permanent post available, the appointments were illegal-On appeal,
held three po.its of Assistant Directors of Seri culture clearly available to be
filled by direct recruitment--171us no illegality in the appointment of three
Assistant Directors of Seri culture- 'Substantive Vacancies' are synonymous
with permanent posts under the Ru/e;~-Andhra Pradesh Industries Sen1ice
D Rules-Andhra Pradesh State and Subordinate Service Rules : Rules 2 and
6.
.
Appellants were directly recruited to the posts of A~sistant Directors
of Scriculture. Their appointments were challenged by respondents 4 to 7,
Inspectors of Sericulture, inter alia on the ground that under the Andhra
E Pradesh Industries Service Rules if direct recruitment was to be made for
th1·ee po~ts, there should be 15 permanent vacancies and there were not so
many vacancies. The Tribunal quashed the appointments of appellants holding
that as there were no permanent posts of Assistant Director of Sericulture
ap11ointment of a11pellants were illegal; 'substantive vacancies' were not
synonymous with permanent 1iosts. Appellants filed a review petition, which
F r
was also dismissed. Hence the present a11peals.
--
Allowing the appeals, this Court
HELD : 1. Requirements of filling up of three posts of Assistant
Director, Sericulture by direct recruitment are (1) existence of more than ..
G 5 permanent 11osts in the cadre; and (2) possession of prescribed qualifications
by the incumbent. There is no dispute that the appellants did possess the .,..
prescribed qualifications. Tribunal has noted that the State Government ~'
stated that there were 30 posts of Assistant Directors, Sericulture but it was
not stated as how many of these were pei:_mancnt posts though 17 posts had
been continuing for the last more than 10 years. That being so under
H
980
A.K. NAZEER SAHEB v. A.P. PUBLIC SERVICE COMM. [D.P. \VADHWA, J.J 981

Explanation (amended w.e.f. 8.3.1983) to Rule 6 of the Andhra Pradesh State A
and Subordinate Service Rules, these 17 JI0~1s would certainly be 11ermanent
posts in the permanent cadre of Assistant Director, Sericulture and any
vacancy in these 11osts would be a substantive vacancy to be filled by a direct
recruit under Rule 6. Three vacancies for direct recruitment were thus
clearly available. While notifying the three vacancies for direct recruitment
the ratio fixed in sub-rule JI(f) of Rule 2 of the Andhra Pradesh Industries
B
... 'r Service Rules was followed keeping in view the availability of such number
of pr.rmanent 11osts. As a matter of fact, it is the ~1and of the State Government
that there were 4 posts of Assistant Director of Sericulture as against 3
which were available for direct recruitment and the Andhra Pradesh Public
Service Commission was informed accordingly. Thus three 11osts of Assistant c
Directors of Sericulture were clearly available to be filled by direct
recruitment to which the ap11ellants have been rightly ap11ointed.
[985-G-H; 986-A-D]
2. The Tribunal erred in holding that 'substantive vacancies' could not
be regarded synonymous with permanent posts under the Rules. Construction
D
. -< of Andhra Pradesh Industries Service Rules and the Andhra Pradesh State
and Subordinate Service Rules has to be done harmoniously and as a matter
of fact there is no conflict between the two set of Rules. The three ap11ellants,
being the directly recruited Assistant Directors, Sericulture, have filled the
substantive vacancies in the permanent cadre of the Assistant Directors,
Sericulture. (987-C-D] E
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 87-88 of
l9'Xl.

From the Judgment and Order dated 27.3.89 of the Andhra Pradesh
Administrative Tribunal, Hyderabad in R. P. No. 6203 of 1988 and R.P. No. F
'r
~ 6798 of 1988.

H.N. Salve, L.N. Rao, G.R. Krishna, (S.U.K., Sagar) and Vimal Dave for
the Appellants.

T. Anil Kumar and T. V.S.N. Chari for the Respondents. G
The Judgment of the Court was delivered by

D.P. WADHWA, J. TI1e appellants, numbering three, were directly
recruited as Assistant Directors of Sericulture under the Andhra Pradesh
Industries Service Rules by the Andhra Pradesh Public Service Commission H
982 SUPREME COURT REPORTS [1998] l S.C.R.

A after following the procedure prescribed. Their appointments were challenged
before the Andhra Pradesh Administrative Tribunal (for ·short 'the Tribunal')
by Inspectors of Sericulture, being respondents 4 to 7. Under the relevant
Andhra Pradesh Industries Service Rules post of Assistant Director Sericulture
is a promotional post from t11e Inspector Sericulture. Respondents 4 to 7 who
challenged the appointment of t11e appellants were also candidates for
B appointment as Assistant Directors Sericulture by direct recruitment but they
were not able to quality. They challenged t11e appointment of the appellants
on the following three grounds: ·

(I) According to t11e Rules, the question of direct recruitment arises
only if there are more than five permanent vacancies. lf direct
c recruitment is to be made for three posts, there should be 15 pem1anent
vacancies. There were not so many vacancies.

(2) It will not be in public interest to recruit candidates to the posts
of Assistant Directors of Seri culture without practical experience when
candidates with practical experience were available.
D
(3) The proposal to make direct recruitment affects the rights of the ..
petitioners who are fully qualified and eligible for promotion.

Grounds 2 and 3 were not considered by the Tribunal in any ddail as
those appeared to be meaningless. As a matter of fact respondents 4 to 7 were
E initially appointed as Assistant Inspectors of Sericulture and subsequently
promoted as Inspectors of Sericulture. These respondents when they were
appointed as Assistant Inspectors of Sericulture had not practical experience
in Sericulture industry as envisaged in the Service Rules yet they were sent
for 15 months training for a Diploma in Sericulture. It is not that t11e appellants
F did not possess the qualification prescribed for appointment to the post' of
Assistant Director of Sericulture, tlie only ground which found favour with (
,....
the Tribunal in quashing their appointment was that there were no permanent
posts of Assistant Director of Sericulture under the Rules and as such the
appointment of the appellants was not legal. The impugned judgment of th!'!.
G Tribunal is dated March 27. 1989. The appellants filed a review petition before

-
the Tribunal which was dismissed by the Tribunal by order dated Augnst 9,
1989. The Tribunal affirmed its view that a substantive vacancy and a
permanent post were not the same. In the impugned judgment dated March
27, 1989, the Tribunal observed as under:

H "Admittedly, according to Rules, appointment to the posts of Assistant
"f'

A.K. NAZEER SAHEB v. A.P. PCBLIC SERVICE COMM. [D.P. WADHWA, J.j 983
'
Sericulture Experts redesignated as Assistant Director of Sericulture A
,.A can be made either by direct recmitment or by transfer from A.P.
Indnstries Subordinate Services. Appointment by direct recruitment
can be made only when there are moer than five permanent posts.
According to the Respondents, there are 30 posts of Assistant
Directors of Seri culture. They have not stated how many of these are
permanent posts. They have however stated that 17 posts of Assistant
B
'• 'r Directors are continuing for more than IO years. In the course of the
hearing the learned G.P. stated that there were only two permanent
posts. According to the ex-planation below Rule 6 of the AP. State and
subordinate Service Rules these are in the nature of substantive
vacancies and direct recruitment can be made against such posts. But c
the question is whether substantive vacancies are synonymous wit11
permanent posts. In the course of the hearing, the counsel for t11e
petitioner argued that a permanent vacancy is different from a
substantive vacancy as defined in the Explanation below Rule 6 of the
AP. State and Subordinate Service Rules. On the other hand, the
-< .-( counsel for the Respondents argued that there is no such difference D
. and that a substantive vacancy should be deemed to be a pemianent
post for purposes of the mies. In this connection, they referred to the
Webster Dictionary (Encyclopedic Edition) in which the word
'substantive' is said to mean permanent. It seems to me however, the
ex-planation below Rule 6 of t11e State and Subordinate Service Rules E
makes a distinction between vacancies in the permanent cadre and
other substantive vacancies. While all vacancies in the pem1anent
cadre are substantive it cannot be said that ali substantive vacancies
are permanent. The term 'substantive' seems to be broader in
connotation than t11e terms 'permanent post'. The term 'substantive
vacancies' cannot therefore be regarded as synonymous with permanent F
,..
.., posts. While Rnle 6 of the General Rules pem1its direct recruitment
against substantive vacancies, according to the proviso (6) below
Rule 2 of the Industries Service Rules direct recruitment can be made
only when there are more than five pemianent posts. It is well
established that where there is a difference between a General Rule
G
and a Special Ruic t11e latter will prevail. In the circumstance, I am of
the opinion t11at unless it is established that t11ere are more than five
./:>. permanent posts as distinguished from 5 substantive vacancies direct
recruitment is not permissible in terms of these rules."

It is this reasoning of the Tribunal which is challenged before us and it is H
984 SUPREME COURT REPORTS [1998] l S.C.R.

A submitted by the appellants that this led to miscarrige of justice.

At this stage we may refer to t11e relevant Rules on t11e subject .

(I) Andhra Pradesh Industries Service Rules

Rule 1. Constitution:- The service shall consist of t11e following
B
categories of Officers, namely:-

Assistant Sericultural I. By direct
Expert recruitments; or
(redesignated as Assistant 2. By transfer from
c Director of Seri culture) category-I
(Sericultural Inspectors/
Supervisors) or Class IX of the
A.P. Industries Subordinate
Service.
D Provided that :

(a) .................. .

(b) .................. .

(c) ................. .
E
(d) .................. .

(e): ................ .

(f) Appointment to the post of Sericulture E:..-port by direct
recruitment shall be made only when there ~e more than 5 permanent
F posts. Out of every four permanent vacancies of Asstt. Sericulture
Expert the third vacancy shall be filled or reserved to be filled by
direct recruitment.

(Ins. by G.O.Ms. No 315, Inds, Dt. 26.4.1973 w.e.f. 26

G (2) Andhra Pradesh State and Subordinate Service Rules

Rule 6. Methoci of Recruitment:- Where the normal method of recruitment
to any service, class or category is neither solely by direct recruitment
nor solely by transfer but is both by direct recruitment and by transfer-

H (a) the proportion or order in which the special rules concerned
A.K. NAZEER SAHEB v. A.P. PUBLIC SERVICE COMM. [D.P. WADHW A, J.] 985
may require vacancies to be filled by persons recruited direct and by A
those recruited by transfer shall be applicable only to substantive
vacancies in the permanent cadre;

(b) a person shall be recruited direct only against a substantive
vacancy in such pemrnnent cadre and only if the vacancy is one
which should be filled by a direct recruit under the special rules B
referred to in clause (a);

Provided that for special ~easons, direct recruitment may also be
made against the temporary posts.

(Added by G.O. Ms. No.739, GA (Ser-A), Dt. 22.12.1984). c
(c) recruitment to all ot11er vacancies shall be made by transfer:

Provided that nothing in t11is rule shall adversely affect any person
who on the date of issue of the special rules referred to in clause (a)
was a probationer in such service, class or category, as the case may D
be.

Explanation:- For the purpose of this rule, notwithstanding
anything contained in these rules or special or ad hoc rules
'substantive vacancies' shall mean all vacancies in t11e permanent
cadre, all vacancies in the posts which have been in existence for E
more than 10 years. All vacancies in 75% of the posts which have
been in existence for morn than 3 years but less than 10 years and all
vacancies in 50% of t11e posts which have been in existence for more
than one year but less t11an 3 years.
F
(G.O.Ms. No. 310, G.A. (Ser. D). Dt. 24.5.1984 w.e.f. 8-3-1983).

Considering t11ese Rules we iliink iliere can be hardly any scope for
controversy raised in ilie matter. Requirements of filling up of three posts of
Assistant Director Sericulture by direct recruitment are (1) Existence of more
than 5 permanent posts in t11e cadre and (2) Possession of prescribed G
qualifications by the incumbent. There is no dispute that the appellants did
)i, possess the prescribed qualifications. Tribunal has noted that the State
Government stated iliat there were 30 posts of Assistant Directors Sericulture
but it was not stated as how many of iliese were of permanent posts though
17 posts had been continuing for ilie last more ilian 10 years. That being so
under Explanation (amended w.e.f. 8.3.1983) to Rule 6 of the A.P. State and H
986 SUPREME COURT REPORTS [1998] l S.C.R.

A Subordinate Service Rules these 17 posts would certainly be permanent posts
in the permanent cadre of Assistant Director Sericulture and any vacancy in
these posts would be a substantive vacancy to be filled by a direct recruit
under Rule 6. Tirree vacancies for direct recruitment were thus clearly available.
Contention raised by the respondents 4 to 7 therefore that there were no
permanent posts of Assistant Director of Sericulture and therefore the direct
B recruitment by the A.P. Public Service Commission was illegal was not correct.
Thus, while notifying the 3 vacancies for direct recruitment the ratio fixed in
sub-rule II (f) of Rule 2 of the A. P. Industries Service Rules was followed
keeping in view the availability of such number of permanent posts. As a
matter of fact, it is the stand of the State Government that there were 4 posts
C of Assistant Director of Scriculture as against 3 which were available for
direct recruitment and the A.P. Public Service Commission was informed
accordingly on October, 31, 1988. It has also been pointed out by the State
Government that there are standing orders issued by GOMs No.47 dated
January 31, 1987 where in it was provided that there should be at least 30%
of the posts were to be earmarked for direct recruitment and that there is yet
D another GOMs No. 739 dated 22.12.1984 which provides for direct recruitment
for special reasons even against temporary posts. To this again the Tribunal
was of the view that these GOMs could not be made applicable unless special
rules were suitably amended.

E l11e qualifications required for the post of Assistant Director Sericulture
under direct recruitment are a degree in Botany, Zoology, Agriculture of any
recognised University with Diploma in Sericulture of a recognised Institute.
l11e State Government has also pointed out that the tontention of the
respondents 4 to 7 that it would not be in public interest to recruit Assistant
Director of Sericulture by direct recruitment without having practical experience
F was also not correct as by GOMs 315 dated April 16, 1973 in Rule ?(ii) it had
been added that the candidate selected by direct recruitment to the post of
Assistant Sericulture Expert (Assistant Director of Sericulture) shall during
the period of probation and before posted with regular duty would undergo
a course of training for a period of 6 months in Mulberry cultivation, silkwom1
rearing and silk reeling. As noted above post of Assistant Director of
G Sericulture is a promotional post from Inspector of Sericulture and respondents
4 to 7 would certainly be considered for promotion in due course on merit to
fill up the post of Assistant Director of Sericulture available to be filled for
by promotion. There is no dispute that post of Assistant Sericulture Expert
is redesignated as Assistant Director of Sericulture and in our view the
H Tribunal urmecessarily raised this controversy. In the petition filed by the
A.K. NAZEER SAHEB v, A.P. PUBLIC SERVICE COMM. [D.P. WADHWA, J.] 987

respondents before the Tribunal they themselves sought a declaration that A
the rights of the petitioners and others to _have their cases considered for
promotion to the post of Assistant Director of Sericulture (Assistant Sericulture
Expert) could not be taken away by making direct recruitment to the said
posts contrary to the Statutory Rules and they had also sought quashing of
the advertisement No. 3/88 dated 7.5.88 of the Andhra Pradesh Public Service
B
'y
, Commission published in Deccan Chronicle dated 12.5.88 so far as it related
to the filling up of the posts of Assistant Dii;.ector of Sericulture. Thus the
whole controversy which arose before the Tribunal was if the substantive
vacancies were synonymous with permanent posts. The Tribunal held that
the term 'substantive' seemed to be broader in connotation and substantive
vacancies could not therefore be regarded as synonymous with permanent C
posts under the Rules. This, according to us, is not correct The Tribunal, in
our view, quite unnecessarily raised of its own difference between special and
general laws. Construction of A.P. Industries Service Rules and the A.P. State
and Subordinate Service Rules has to be done harmoniously and as a matter
of fact there is.no conflict between the two set of Rules. The appellants are
right in their submission that substantive vacancies are synonymous with the D
vacancies in permanent posts. TI1e three appellants, being the directly recruited
Assistant Directors Sericulture, have filled the substantive vacancies in the
permanent cadre of the Assistant Directors Sericulture.

In this view of the matter ~ posts of Assistant Director of Sericulture E
were clearly available to be filled by direct recruitment to which the appellants
have been appointed. We, therefore, allow the appeals, set aside the impugned
order of the Tribunal holding otherwise and would dismiss the petitions filed
by the respondents 4 to 7 before the Andhra Pradesh Administrative Tribunal.

S.VK.I. Appeal allowed.