GOVERNMENT OF ANDHRA PRADESH AND ORS. versus BALA MUSALAIAH AND ORS.

Citation: [1994] SUPP. 5 S.C.R. 691 · Decided: 23-11-1994 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Dismissed

Judgment (excerpt)

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 
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 
E 
v. Union of India, 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. 
D 
E 
. .f 
(694 G-H, 695 A) 
Indira Sawhney v. Union of India, (1992] Supp. 3 SCC 217; relied on. 
1.2 The Principle and policy behind the reservation would ~e 
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 
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 
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

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