The Secretary to Govt. Agrl. and Cooperation Dept., Govt. of A.P. and anr. Vs. K. Jayasekhar and anr. - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. v. eswaraiah, j.1. the sole respondent filed o.a.2807/1996 on the file of the andhra pradesh administrative tribunal (hereinafter referred to as 'the tribunal') seeking declaration that he is entitled to be appointed by transfer as deputy executive engineer under g.o. ms. no. 758 general administration (service-d) department dated 30.10.1976 from the date of his eligibility in the existing vacancies under the reservation quota with all consequential benefits. the said o.a. was disposed of by order dated 10.07.1997 directing the respondents therein i.e. the secretary to government, agriculture and cooperation department, and the commissioner and director of marketing, government of andhra pradesh, hyderabad who are the writ petitioners herein to consider the case of the respondent/applicant for promotion/appointment by transfer to the post of deputy executive engineer in the central marketing fund service, if there are vacancies of deputy executive engineers as asserted by the respondent herein/applicant keeping in view the provisions of g.o.ms. no. 758 dated 30.10.1976. aggrieved by the same, this writ petition is filed by the department.2. the respondent was selected and appointed as engineering supervisor in agriculture marketing committee and his services were regularized w.e.f. 12.07.1985. his services were converted into central market fund service by the director of marketing, hyderabad vide his proceedings dated 23.09.1994 under rule-3 item-4(ii) of group-i of special rules for central market fund services issued in g.o.ms. no. 407, food & agriculture (agrl.iv) department dated 31.08.1984 (hereinafter referred to central market fund rules). accordingly, the respondent/applicant was transferred and posted as assistant engineer in agriculture market committee, adoni. the respondent/applicant has completed 10 years satisfactory service as assistant engineer. while working as assistant engineer in agriculture market committee, adoni, kurnool district, the respondent/applicant filed o.a.2807/1996 on the file of the tribunal to appoint him by transfer as deputy executive engineer as he is entitled, eligible and qualified to be promoted to the post of deputy executive engineer under g.o.ms. no. 758, dated 30.10.1976. 3. the respondent/applicant was initially appointed as engineering supervisor in the agriculture market committee, palakol, west godavari district. again the services of the respondent/applicant were converted into central market fund service with his consent.4. it is the case of the department that the central market fund service is governed by a separate set of rules called as central market fund service rules, 1984. the respondent/applicant was again transferred to agricultural market committee, adoni on 19.10.1994. it is stated that the services of the respondent/applicant under the agriculture market committee and the central market fund service cannot be equated to that of the government service since both the services are governed and regulated by separate set of service rules and the said services are controlled and managed by separate bodies. it is further contended that the ad hoc rules made by the governor in exercise of the powers conferred by proviso to article 309 of the constitution of india and notified in g.o.ms. no. 758 dated 30.10.1976 are not at all applicable in respect of the services governed by the market fund service rules, 1984. it is stated that vide orders of the government in g.o.ms. no. 173 irrigation and power (cr. iv) department dated 08.04.1981 the categories of engineering supervisors, junior engineers and assistant engineers are re-designated as additional assistant engineers, assistant executive engineers and deputy executive engineers respectively. the central market fund service rules are notified in the aforesaid g.o.ms. no. 407, dated 31.08.1984 according to which, a common seniority list of assistant executive engineers and assistant additional engineers of central market fund service and market service shall have to be prepared by the director of marketing with reference to the date of appointment in each category. so far as the andhra pradesh marketing service is concerned, a separate seniority list of assistant executive engineers/assistant engineers shall have to be prepared. in the impugned order, the tribunal observed that the respondent/applicant belongs to state service recruited as an engineering supervisor in the agriculture market committee and later converted to central market fund service on 23.09.1994 and found that the ad hoc rules in g.o.ms. no. 758 dated 30.10.1976 were issued to promote the interests of scheduled castes and scheduled tribes to various services of the state government. accordingly the tribunal found that items-19, 20 and 21 of the annexure to the g.o.ms. no. 758, dated 30.10.1976 covered the posts in a.p. marketing services. however, the tribunal held that the respondent/applicant is entitled for the benefits of the g.o.ms. no. 758 dated 30.10.1976 which confers certain benefits in favor of the scheduled castes and scheduled tribes employees and directed the writ petitioners herein to consider the case of the respondent/applicant for promotion/appointment by transfer to the post of deputy executive engineer in the central market fund service as per the ad hoc rules.5. the learned counsel appearing for the petitioners submits that the respondent/applicant is not entitled for the benefit of the ad hoc rules as he was never appointed under the a.p. marketing service or any state service.6. this court earlier while considering the question whether the respondent/applicant is entitled for the benefit of the ad hoc rules issued in g.o.ms. no. 758 dated 30.10.1976, set aside the order of the tribunal while allowing the writ petition on 19.03.2002. aggrieved by the same, the respondent/applicant carried the matter to the hon'ble supreme court of india and the supreme court of india in civil appeal no. 6559/2002 by order dated 01.05.2008 while setting aside the order of this court, remanded the matter to this court directing to consider the application of rule-6 of the central marketing fund service rules along with rule-22(a) of the state and subordinate service rules.7. in the said civil appeal, the hon'ble supreme court of india observed that the respondent/applicant belongs to the scheduled caste and he was appointed as engineering supervisor in the agriculture market committee and his service condition was then governed by the andhra pradesh (agricultural produce and livestocks) market service rules 1969, and he was transferred to the central market fund service on 23.09.1994. the central market fund service was governed by the central market fund service rules 1984. clause-3 of rule-6 of the central market fund service rules states that the provisions of the andhra pradesh state and subordinate service rules, andhra pradesh ministerial service rules on the matters not covered by the said central market fund service rules shall be applicable to the members working under the central market fund service. it is stated that rule-22 provides reservation in favour of the scheduled castes, scheduled tribes and backward classes but the high court has not considered the rule-6 of the central market fund service rules along with rule-22(a) of the andhra pradesh state and subordinate service rules and as the respondent/applicant belongs to scheduled caste he is entitled to be considered for 15% reservation as contained in rule-22(a) of andhra pradesh state and subordinate service rules.8. it is not in dispute that as per the option exercised by the respondent/applicant, his services were converted into the central market fund service which is governed with separate set of rules called as 'central market fund service rules 1984'. even though he was transferred to the agriculture market committee, adoni on 19.10.1994, his services in the agriculture market committee and the central market fund will not come under the government service as both services are governed with separate set of service rules and controlled and managed by separate bodies. the contention of the learned counsel for the petitioners is that neither the agriculture market committee nor the central market fund will come under the purview of the state marketing department but only under the local authorities. it is an undisputed fact that the services of the respondent/applicant were converted into the central market fund service governed by the central market fund service rules 1984. but it is the case of the respondent/applicant that earlier he worked in agriculture market committee service for the purpose of considering to promotion/transfer to the cadre of deputy executive engineer. as per the note-3, combined seniority of the assistant engineer/deputy executive engineer of the central market fund and the market committee service shall be prepared by the director of marketing with reference to the date of each category. it is stated that as per rule-6(iii) of the central market fund service rules, the general rules are applicable and therefore, he is entitled for the benefit of the ad hoc rules issued in g.o.ms. no. 758 dated 30.10.1976 in addition to rule-22(a) of the the a.p. state and subordinate rules. it is further stated that the central market fund service rules are silent with regard to the reservation in promotional post for scheduled castes and scheduled tribes and hence he is entitled for the benefits of g.o.ms. no. 758.9. the small controversy in this writ petition as directed by the hon'ble supreme court of india is whether the respondent is entitled for reservation to the promotional post of deputy executive engineer by transfer/appointment from assistant executive engineer as per the rule-6 of the central market fund service rules read with rule-22(a) of the a.p. state and subordinate service rules.10. it is not in dispute that as per rule-6(iii) of the central market fund service rules, the provisions of the a.p. state and subordinate service rules, a.p. ministerial service rules on the matter not covered by the central market fund service rules are applicable to the members of the central market fund service. there is no other provision under the central market fund service rules providing reservation in the promotional post in favour of the scheduled castes, scheduled tribes and backward classes employees, but it is only stated that the provisions of a.p. state and subordinate service rules are applicable. under rule-22(i) of the a.p. state and subordinate service rules, the rule of reservation in favour of the scheduled castes, scheduled tribes and backward classes etc. are applicable for all appointments to a service, class or category by direct recruitment except where the government by the general or special order made, exempt such service, class or category. the reservation also applicable otherwise than by direct recruitment where special rules lay down specifically that the principle of reservation in so far as it relates to scheduled castes and scheduled tribes only shall apply to such service, class or category to the extent specified therein. thus, under rule-22(1)(ii) if the special rules provide any reservation in the promotional post in favour of the scheduled castes and scheduled tribes, the rule of reservation shall also apply. the central market fund service rules are the special rules. but rule-6 only says that the state and subordinate service rules are applicable to the members of the service. but the rule of reservation is not provided in the promotional post either under rule-6(3) or under rule-22 of the a.p. state and subordinate service rules. but it is significant to note that by virtue of amendment made to rule-22(1)(ii) the rule of reservation in the promotional post and appointment by transfer also applies in favour of the scheduled castes and scheduled tribes by virtue of amendment in g.o.ms. no. 123 g.a.(ser.d) dated 19.04.2003 w.e.f. 14.02.2003. with effect from 14.02.2003 alone the rule of reservation is made in promotional post as provided in rule-22(1)(ii) of the a.p. state and subordinate service rules. therefore, at that relevant point of time, there was no rule of reservation in the promotional post either in the central market fund service rules or in the a.p. state and subordinate service rules.11. the learned counsel appearing for the respondent/applicant further submits that as per the ad hoc rule framed in g.o. ms. no. 758 dated 30.10.1976, the respondent/applicant is entitled for promotion to the post of deputy executive engineer as per the annexure at sl. no. 20.12. the ad hoc rule framed under g.o.ms. no. 758, dated 30.10.1976 provides that notwithstanding anything contained in the a.p. state and subordinate service rules, special/ad hoc rules for the posts specified in column-(2) of the table in the annexure thereto, the rule of special representation contained in general rule-22 of the andhra pradesh state and subordinate service rules shall apply for appointment to the said posts by the method of recruitment by transfer from the category, class or service specified in column-(4) of the table in the said annexure, in so far as it relates to the reservation of appointments in favour of the scheduled castes and scheduled tribes. for the post of assistant engineer at sl. no. 20 to the a.p. marketing service, the categories of junior engineer (assistant engineer), supervisors etc. are entitled for promotion by method of appointment to the post of deputy executive engineer.13. the learned counsel appearing for the petitioners submits that the respondent/applicant is not seeking promotion to the post of a.p. marketing services as admittedly his services were governed by the central market fund service rules. it is further stated that the categories of junior engineers, supervisors etc. working in a.p. engineering subordinate service and a.p. minor irrigation subordinate service alone are entitled for the reservation by method of appointment to the post of deputy executive engineer in a.p. marketing service but not to the central market fund service. as the services of the respondent/applicant do not belong to the a.p. engineering subordinate service or the a.p. minor irrigation subordinate service, and he belongs to the central market fund service, he is not entitled by way of the special representation to the promotional post of the deputy executive engineer. the hon'ble supreme court of india never held that the g.o.ms. no. 758 dated 30.10.1976 applies to the services of the respondent/applicant.14. we are of the opinion that as the respondent/applicant does not belong to the services of the a.p. engineering subordinate services or the a.p. minor irrigation subordinate service, he is not entitled for the benefit of the said ad hoc rule framed under g.o.ms. no. 758 dated 30.10.1976. we have considered the rule-6 of the central market fund service rules read with rule-22 of a.p. state and subordinate service rules and both rules do not provide any special representation for the scheduled castes and scheduled tribes for appointment by the method of recruitment by transfer to the promotional post of the deputy executive engineer in the central market fund service. we have no hesitation to hold that the respondent/applicant is not entitled for the benefits of g.o.ms. no. 758 dated 30.10.1976 for the reasons stated above.15. the respondent/applicant is not seeking promotion to the a.p. marketing service but he is seeking promotion in the central market fund service and therefore, the respondent/applicant is not entitled for the benefit under the said g.o.ms. no. 758 dated 30.10.1976. therefore, we are of the opinion that the tribunal is not correct in holding that the petitioner is entitled to be considered for the promotional post of the deputy executive engineer as per g.o.ms. no. 758. in view of the above the impugned order of the tribunal is liable to be set aside and is accordingly set aside.16. the writ petition is accordingly allowed. but, however, it is open for the 1st respondent/applicant to approach the government for appropriate relaxation of the relevant rules. no order as to costs.