GOVERNMENT OF ANDHRA PRADESH AND ORS.versusBALA MUSALAIAH AND ORS.

         GOVERNMENT OF ANDHRA PRADESH AND ORS.                              A
                                   v.
                   BALA MUSALAIAH AND ORS.

                         NOVEMBER 23, 1994

             [KULDIP SINGH AND B.L. HANSARIA, JJ.]                          B

    Constitution of India-Articles 309-G.O. issued by Government of
Andhra Pradesh, dated 3-8-1967-Retrenchment qf temporary employees
Adhoc rule framed under Art 309 prohibiting termination of reserved
category candidate-Challenged as discriminatory-Whether G. 0. as
framed _is sustainable-Held, no-Service Law.                        C
     The Government of Andhra Pradesh issued an order on 3-8-1967
by which an adhoc ru~e was framed in exercise of power conferred by
Articles 309 of the Constitution prohibiting termination of reserved
category candiadtes following normal rule applicable in such cases. The
G.O. spelt out in what order retrenchment of temporary employees has D
to take place. It required retrenchment even of approved probationers
of general category before even the tern porary incumbents belonging to
the Scheduled Castes and Scheduled Tribes could be retrenched. The
GO was challenged as invalid.

    The High Court held that the G.O. did not strike a reasonable           E
balance between the claims of different communities and has sought to
introduce by the back door an unlimited form of carryforward rule
which it regarded as invalid because of what was held in T. Devadasan
v. Union ofIndia, AIR (1964) S.C 179. The Court further stated that the
G.O does not merely postpone the retrenchment of temporary                  F
employees belonging to the Scheduled Caste and Scheduled Tribes to
temporary employees of other communities, but postpones the
retrenchment of the Scheduled Caste and Scheduled Tribes employees
to probationers also and even approved probationers of other
communities. The G.O. was held to be violative of Article 16 (1) of the
Constitution and was, therefore, declared as invalid. The State has filed   G
appeal by special leave against the judgement of the High Court.

    In View of the majority judgement of the Supreme Court in Indra
Sawhney v. Union of India, [1992) Supp 3 SCC 217 , the appellants
contended that the judgement of the High Court deserved to be set
~~                                                                          H
                                  691
      ~92                    SUPREME COURT REPORTS          [1994] SUPP. 5 S.C.R

A           Dissmissing the the appeal, this Court

          HELD : 1.1 On the face of it, the G.O. is arbitrary in as much as it
      requires retrenchment even of approved probationers of general
      category before even the temporary incumbents bt:longing to the
      Scheduled Castes and Scheduled Tribes could be retrenched. Such a
B     provision cannot be in tune even with Articles 16 (1) of the Constitution
      in as much as this sub articles is a facet of Article 14 and though
      permits affirmative action, (as pointed out in Indra Sawhney 's Case,
      (1992] Supp. 3 sec 217, the same cannot fly on the face of Article 14.
      This would, however, be so if the G.O. were to allow to stand as it is,
      because giving of preference to temporary employees belonging to
C     Scheduled Castes and Scheduled Tribes as against probationers of
      general category is definitely an unreasonable provision.
                                                             (694 G-H, 695 A)

            Indira Sawhney v. Union ofIndia, (1992] Supp. 3 SCC 217; relied on.

           1.2 The Principle and policy behind the reservation would ~e
D
      adequately met and would receive constitutional approval, if while
      retrenching the employees, the roster followed while making
      appointments is adhered to. The reservation in appointment, to
      effectuate which roster is prepared, makes an incumbent of the
      reserved category senior to the general category incumbent, as, though
E     lower in merit the former gets appointed earlier as per the roaster
      point. This in itself protects to some extent the interest of the listed
      category candidates, as under the normal rule, the retrenchment starts
      from the junior most employee and it travels back step by step.
                       .                                            (695 B, G)

           1.3 The G.O. as framed is thus not sustainable. As however, the
..f    G.O. has been in operation for about three decades by now, the
       retrenchments which have already taken place pursuant to what has
      .been provided in the G.O. , ar<l not to be upset. (695 H, 696 A)

            CIVIL APPELLATE JURISDICTION : Civil Appeal No 797177.

 G        From the Judgment and Order dated 22nd July 1976 of the Andhra
      Pradesh High Court at Hyderabad in Writ Appeal No. 644 of 1975.

            A.Raghuvir, G.Prabhakar and TVSN Chari for the Appellants.

          S.Muralidhar, Mis. Shomana Khanna and Ms. Punam Kumari for the
 H    Respondents.
           GOVT. OF A. P. v. BALA MUSALAIAH [HANSARIA, J.]                  693

    That Judgment of this Court was delivered by                                   A
     HANSARIA, J. The present is an unusual case despite it being related
to the usual demand of reservation for Scheduled Castes and Scheduled
Tri!Jes. The peculliarity lies in the fact that demand for reservation herein is
not related to appointment, but is relatable to termination.
                                                                                   B
     2. The Government of Andhra Pradesh issued an order (hereinafter
referred to as the G.O.) on 3.8.67 by which an ad hoc rule was framed in
exercise of powers conferred by Article 309 of the Constitution prohibiting
termination of reserved category candidates following normal rule
applicable in such cases. The G.O. spells out in what order retrenchment of
temporary employees hast!) take place. The order set out is as below :-     C

                "First-persons, other than those belonging to the
                Scheduled Castes and the Scheduled . Tribes appointed
                temporarily, in the order of juniority ;

                Second-probationers, other than whose belonging to the D
                Scheduled Castes and the Scheduled Tribes in the order of
                juniority;

                Third-approved probationers other than those belonging to
                the Scheduled Castes and the Scheduled Tribes, appointed
                temporarily in the order of juniority;                    E
                Fourth-persons belonging to the Scheduled Castes and the
                Scheduled Tribes, appointed temporarily in the order of
                junirotiy;

                Fifth-probationers belonging to the Scheduled Castes, and F
                the Scheduled Tribes, in the order of juniority;

                Sixth-approved probationers belonging to the Scheduled
                Castes and the Scheduled Tribes in the order of Junority."

                                                    (Explanation not relevant)     G
     3. It came to be assailed before the High Court of Andhra Pradesh to
meet its Waterloo. The High Court, after taking note of various decisions of
this Court dealing with defferent facets of reservation, held that the G.O.
did not strike a reasonable balance between the claims of different
communities and has .sought to introduce by the back door an unlimited H
    694                     SUPREME COURT REPORTS            (1994] SUPP. 5 S.C.R

A   form of carry forward rule which it regarded as invalid because of what was
    held in T. Devadasan v. Union of India, AIR (1964) SC 179. The Court
    further stated that the G.O. does not merely postpone the.retrenchment of
    temporary employees belonging to the Scheduled Castes and Scheduled
    Tribes to temporary employees of other communities, but postpones the
    retrenchment of the Scheduled Castes and Scheduled Tribes employees to
B   probationers also and, what it worse, even approved probationers of other
    communities. Because of all these the G.O. was held to be violative of
    Article 16 (I) of the Constitution and was, therefore, declared as invalid.
    The State of Andhra Pradesh has preferred this appeal by special leave.

         4. A nine Judge Bench of this Court in Indra Sawhney v. Union of
c   India, [ 1992] Supp. 3 SCC 217 (commonly known as Manda! Commission
    case) reviewed the entire law or reservation; and as such, no effcrt is
    necessary on our part to find out the parameters within which reservation
    has to operate.

         5. The G.O. being of the year 1967 and the law relating to reservation
D   having come to be crystalised by the decision in Indra Sawheny 's case
    ..
    delivered in 1992, we stated to Shri Raghuvir appearing for the appellants
    that ifthe State Government were to undertake passing of fresh G.O. on the
    subject keeping in mind the view expressed in Indra Sawhney 's case, we
    could dispose of the appeal by allowing the stay order to continue for a
    period of three months within which the State could pass fresh G.O. For
E
    want of instructions, Shri Raghubir could not give the undertaking and so
    we proceeded to hear the appeal instead adjourning the same as prayed for-
    the appeal being of the year 1977.

         6. The High Court, as already noted, struck down the G.O. inter alia, .
F   because of what has been stated in Devadasan 's case. In view of the
    judgement of the majority in Indra Sawhney 's case Shri Raghuvir contends
    that the judgment of the High· Court merits to be set aside. But this is not all
    that the High Court had said, as would appear from what we have noted
     above.

G        7. The first observation we propose to make regarding the G.O. is that
    on the face of it the same is arbitrary in as much as it requires retrenchment
    even of approved probationers of general category before even temporary
    incumbents belonging to the Scheduled Castes and Scheduled Tribes could
    be retrenched. Such a provision cannot be in· tune even with Articles 16 ( 1)
    of the Constitution inasmuch as this sub-article is a facet of Articles 14
H   and though permits affirmative action, as pointed out in Indra Sawhney's
           GOVT. OF A. P. v. BALA MUSALAIAH [HANSARIA, J.]               695

case the same cannot fly on the face of article 14. This would however, be A
so ifthe G.O. were to allow to stand as it is, because giving of preference to
temporary employees belonging to the Scheduled Castes and Scheduled
Tribes as against approved probationers of general category is definitely an
unreasonable provision.

     8. According to us, the principle and policy behind the reservation B
would be adequately met and would receive constitutional approval, if,
while retrenching the employees, the roster followed while making
appointments is adhered to. To elucidate, ifthe roster is operated backwards
(which we shall call recycled) and if the employee to be retrenched as per
normal principle be on a non-reserved point, a reserved category candidate
would not be retrenched even if as per general rule of 'last in, first out' he C
would have been required to be retrenched. To state it differently, a
reserved category candidate would be retrenched only when on the recycled ·
path the reserved point is reached. This mode of following roster would
adequately protect the reserved category candidates inasmuch as their
percentage in the service or cadre would remain as it came to be when D
appointments were made. To explain further, if in the cadre or service
reserved category candidates were holding, say seven posts, and seven
persons are required to be retrenched, the reserved category employees
would not be retrenched even when they be the last seven as per the
seniority list, which would have otherwise happened on following the
normal principle. Instead of the seven reserved category candidates being E
retrenched as per the normal principle, the reserved category candidate on
the recycled roster point alone would be retrenched , because of which the
percentage of representation of such candidates in the service, as it got
reflected in appointment made following the roster, would remain
unaffected.
                                                                               F
     9. May we mention that the reservation in appointment, to effectuate
which roster is prepared, makes as incumbent of the reserved category
senior to the general category incumbent, as, though lower in merit the
former gets appointed earlier as per the roster point. This in itself protects to
some extent the interest of the listed category candidates, as under the G
normal rule, the retrenchment starts from the junior most employee and it
travels back step by step.

    10. We, therefore, hold that the G.O. as framed is not sustainable. It
would however, be open to State Government to recast the G.O. in the light
of what has been stated by us, if deemed necessary by it. As, however, the H
    696                    SUPREME COURT REPORTS          [1994] SUPP. S S.C.R

A   G.O. has been in operation for about three decades by now, we do not
    propose to upset the retrenchments which have already taken place pursuant
    to what has been provided in the G.O. The G.O. would, therefore, become
    non-operative from today.

        11. For the aforesaid reasons the appeal is dismissed subject to the
B   observation regarding prospectivity. No order as to costs.

    A:G.                                                    Appeal dismissed.