Government of Andhra Pradesh & Ors
Vs. Sri D. Janardhana Rao & ANR [1976] INSC 238 (23 September 1976)
GUPTA, A.C.
GUPTA, A.C.
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
CITATION: 1977 AIR 451 1977 SCR (1) 702 1976
SCC (4) 226
ACT:
Civil service--Powers of relaxation--Whether
rules can be made retrospectively--Andhra Pradesh State and Subordinate Service
Rules 1962---Rule 47--Andhra Pradesh Civil Services (Cooperation Branch)
Special Rules 1962--rule 4.
HEADNOTE:
The respondent filed a Writ Petition in-the
High Court questioning the inclusion in the list of Deputy Tahsildars eligible
for promotion to the post of Tahsildars of the names of 63 persons who were
impleaded as respondents 4 to 66, in the Writ Petition. The 63 persons were
working as Upper Division Clerks in the erstwhile State of Hyderabad.
The State Government in consultation with the
Government of India issued an order on 7-4-1960 stating that the first stage
promotion of the employees of the erstwhile Government of Hyderabad should be
governed by the Hyderabad Cadre and Recruitment Rules for promotion which were
applicable to them before that date. The subsequent promotions after the first
stage of promotion would be governed by the relevant rules in force in the
newly formed State. By virtue of this order the aforesaid 6 employees were
promoted to the post of Deputy Tahsildars which was the first stage promotion
for them. In 1962, Andhra Pradesh Civil Services (Cooperation Branch ) Special
Rules were framed, but were made effective retrospectively from 1st November,
1956. Under rule 4(a) the State Government has to prepare in consultation with
the Public Service Commission a list of persons eligible for appointment as
Tahsildars. The 63 erstwhile employees of the Government of Hyderabad did not have
the opportunity to acquire the qualifications prescribed under rule 4(a) of the
Special Rules on their promotion as Deputy Tahsildars. The Government felt that
they should not be left out of consideration for appointment, as Tahsildars and
asked the Public Service Commission to consider the names of such Deputy
Tahsildars for inclusion in the list of eligible candidates assuring the Public
Service Commission that the Government would relax the requirements as to
qualification in favour of such Deputy Tahsildars provided they were otherwise
found suitable by the Commission. By order dated 30-6-1971 the Governor relaxed
the provisions of rule 4(a) of the Special Rules in exercise of powers under s.
47 of the Andhra Pradesh State and Subordinate Services Rules 1962. The
respondents filed a Writ Petition for quashing the order dated 30-6-1971 in the
High Court. The respondents contended that as a result of the said order their
claims for appointment to the posts of Tehsildar had been passed. over in favour
of unqualified persons. The High Court allowed the Writ Petition. The High
Court held that rule 47 did not confer any power to relax a rule retrospectively.
It was also held that under rule 47 power was given to Governor personally and
therefore the exercise of it by the Governor was invalid.
In an appeal by special leave the appellant
contended:
1. That rule 47 did not confer any power to
relax a rule retrospectively.
2. The power was given to the Governor
personally to relax the rules and since the impugned order was not passed by
the Governor but by the Govt. of Andhra Pradesh it was invalid.
Allowing the appeal, HELD:
1. The view taken by the High Court that the
power conferred by rule 47 is exercisable by the Governor personally is based
on the judgment 703 in Sardarilal v. Union of India, [1971] 3 S.C.R.
461. The said decision stands overruled by
the later decision of this Honble Court in Shamsher Singh v. State of Punjab,
[1975] 1 S.C.R. 814. [706 E--F] 2 Rule 47 empowers the Governor to relax the
general rules in such manner as may appear to him to be just and equitable. It
is clear that power under rule 47 is to be exercised in the interest of justice
and equity. It is not difficult to see that the occasion for acting under rule
47 arises after the attention of the Government is drawn to a case where there
has been a failure of justice. In all these cases justice can be done only by
exercising the power under rule 47 with retrospective effect otherwise the
object and purpose of the rule will be largely frustrated. Such a provision is
not unique and is to be found in several statutory rules. [707 A--C] R.P.
Khanna & Ors. v. S.A.F. Abbas & Ors., [1972] 3 S.C.R. 548, followed.'
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 704 of 1975.
(Appeal by Special Leave from the Judgment
and Order dated 11-11-1974 of the Andhra Pradesh High Court in Writ Appeal No.
596/73).
P.P. Rao and T.V.S.N. Chari, for the
Appellants.
Subbarao, for the Respondents. The Judgment
of the Court was delivered by GUPTA, J. This appeal by special .leave arises
out of a writ petition made by the respondents before us in the Andhra Pradesh
High Court questioning the inclusion in the list of Deputy Tehsildars eligible
for promotion to the post of Tehsildar of the names of 63 persons, impleaded as
respondents Nos. 4 to 66 in the writ petition. These 63 persons were working as
Upper Division Clerks in the erstwhile State of Hyderabad when, on November 1,
1956, the State of Andhra Pradesh was formed. The State Government in
consultation with the Government of India issued an order on April 7, 1960
stating that the first stage promotion of the employees of the erstwhile
Government of Hyderabad, that is, promotion to posts one stage above those held
by them prior to November 1, 1956, would be governed by the Hyderabad Cadre and
Recruitment Rules for promotion which were applicable to them before that date,
but subsequent promotions after the first stage of promotion would be governed
by the relevant rules in force in the newly formed State. By virtue of this
order the aforesaid 63 employees were promoted to the post of Deputy Tehsildar
which was the first stage promotion for them. Later, this order dated April 7,
1960 was made a statutory rule, namely, rule 42(h)(i) of the Andhra Pradesh
State and Subordinate Services Rules which came into force on March 7, 1962.
The Andhra Pradesh Civil Services (Executive Branch) Special Rules Revenue
Department, hereinafter referred to as the Special Rules, were made on July 17,
1952 but mane effective retrospectively from November 1, 1956. These Rules
cover two categories of service; we are concerned here with category
2--Tahsildars.
Rule 4(a) of the rules says inter alia that
the qualifications of a candidate for appointment to the post of Tahsildar
shall be as specified in the annexure to the rules. The annexure provides 704
that a Tahsildar recruited by transfer from the category of Deputy Tahsildars
must be a permanent Deputy Tahsildar or an approved probationer in the category
of Deputy Tahsildars and should have exercised the powers of a Magistrate of
the third class and also of the second class for a period of six months in each
capacity. Only those candidates who have passed a criminal judicial test can be
invested with magisterial powers under the orders in force.' Under rule 4(a)
the State Government has to prepare in consultation with the Public Service
Commission a list of persons eligible for appointment as Tahsildars, and no
Deputy Tahsildar is eligible for appointment as Tahsildar unless his name is
included in such list.
The two respondents before us were directly
recruited to the post of Deputy Tahsildar in the year 1962 and completed their
period of probation in 1965. Both of them were declared as approved probationers
in 1965 and were invested with the powers of a Magistrate of the third class,
and then of the second class. 'They became eligible for appointment as
Tahsildars on November 14, 1966 and June 18, 19 69 respectively.
The respondents and the said 63 Deputy
Tahsildars all belong to the Telengana area of the State. The 63 erstwhile
employees of the Government of Hyderabad did not have the opportunity to
acquire the qualifications prescribed by rule 4(a) of the Special Rules on
their promotion as Deputy TahsiIdars. The Government felt that they should not
be left out of consideration for appointment as Tahsildars and asked the Public
Service Commission to consider the names of such Deputy Tahsildars for
inclusion in the lists of eligible candidates assuring the Public Service
Commission that the Government would relax the requirement as to qualification
in favour of such Deputy Tahsildars provided they were otherwise found suitable
by the Commission. The Public Service Commission accordingly included the names
of these 63 employees in batches in the lists prepared for the years 1965,
1966, 1968 and 1969. By an order dated June 30, 1971 the Governor of Andhra
Pradesh relaxed the provisions of rule 4(a) of the Special Rules relating to
the qualifications required of Duty Tahsildars for being appointed as
Tahsildars in favour of these 63 employees and requested the Board of Revenue
to make appointments to the post of Tahsildar in the Telengana area according
to the order in which the names had been indicated in the panels for the
aforesaid years against the vacancies. The order traces the background of facts
and states the reasons for relaxation of rule 4(a) of the Special Rules in the
case of these employees. The material part of the order is as follows:
"The Government have had under
consideration for sometime past the preparation of panels of Tahsildars of the
Telengana Region. According to Rules 4(a) read with the Annexure thereto of the
Andhra Pradesh Civil Service (Executive Branch) Special Rules, a candidate for
appointment to the category of Tahsildars by transfer should, in addition to
the other qualifications, be a permanent Deputy Tahsildar or an approved
probationer in the category of 705 Deputy Tahsildars of the Andhra Pradesh
Revenue Subordinate Service by the 1st July of the year to which the list
relates and should have exercised 11I class and II class Magisterial powers
respectively for a period of six months each. According to the orders in force,
only those candidates who have passed the criminal judicial tests can be
invested with Magisterial powers. Allotted officers from Telengana for whom
promotion to the category of Deputy Tahsildars constitutes the first stage of
promotion after 1--11-1956 (viz. Upper Division Clerks), are governed by the
Hyderabad cadre and Recruitment Rules for appointment as Deputy Tahsildars.
There is no probation prescribed in the Hyderabad Cadre and Recruitment Rules
for II Grade Clerks (Upper Division Clerks) on their promotions to the post of Deputy
Tahsildars. Therefore, the question of their becoming approved probationers in
the category of Deputy Tahsildars does not arise. Further, the Hyderabad cadre
and Recruitment Rules do not lay down that the II Grade Clerks (Upper Division
Clerks) should pass the Criminal Judicial Test as a condition precedent for
promotion to the category of Deputy Tahsildars and, therefore, those who did
not pass the said tests could have had no opportunity of exercising magisterial
powers while working as Deputy Tahsildars. In the circumstances it was felt
that it would be unfair to exclude such persons from consideration for
promotion to the category of Tahsildars on the ground that they were not
,approved probationers and/or had not exercised magisterial powers. The Public
Service Commission was therefore, requested to consider the names also of the
Deputy Tahsildars of the Telengana Region of the above category for inclusion
in the panels for the respective years, regardless of whether or not they
possessed the above qualifications, with an assurance that the Government would
be prepared to relax the rules relating to above requirements in favour of the
candidates who would be otherwise found suitable by the Commission." Rule
4(a) of the Special Rules was relaxed by the Governor in favour of the
aforesaid Deputy Tahsildars in exercise of the power conferred by rule 47 of
the Andhra Pradesh State and Subordinate Services Rules. Rule 47 reads as
follows:
"47. Relaxation of rules by the
Governor.--No rule made under the proviso to article 309 of the Constitution of
India or continued under article 313 of the Constitution shall be construed to
limit or abridge the power of the Governor to deal with the case of any class
or category of person for being appointed to any civil post, or of any person
serving in a civil capacity under the Government of Andhra Pradesh in such
manner as may appear to him to be just and equitable:
Provided that, where any such rule is applicable
to the case of any person or a class of persons, the cases shall not 706 be
dealt with in ,any manner less favourable to the person or class of persons
than that provided by that rule." The respondents before us filed a writ
petition for quashing the order dated June 30, 1971 insofar as it relates to
the said 63 employees who were impleaded as respondents Nos. 4 to 66 in the
writ petition. The writ petitioners complained that as a result of the order
their claims for appointment to the post of Tahsildar had been passed over in
favour of unqualified persons, and the petitioners asked for a direction on the
Government of Andhra Pradesh, the Board of Revenue, and the Andhra Pradesh
Public Service Commission, who are the appellants before us, to include the
names of the petitioners in the panel for the years 1968 and 1969, as the case
may be, and fix their seniority at the appropriate places which they would have
occupied had they been promoted at the relevant time. The learned Judge who
heard the writ petition allowed the same and directed that the claims of the
petitioners for inclusion of their names in the panels from the respective
dates 'they had acquired the requisite qualifications, should be considered on
merits.
It was held that rule 47 of the Andhra
Pradesh State and Subordinate Services Rub did not confer any power to relax a
rule retrospectively as had been done by the order dated 'June 30, 1971. It was
further held that under rule 47 power was given to the Governor personally to
relax the rules and the impugned order dated June 30, 1971 which was passed nor
by the Governor really but by the Government of Andhra Pradesh was, as such,
invalid. In the Letters Patent appeal preferred by the State, a Division Bench
affirmed the Judgment of the single Judge.
The view taken by the High Court that the
power conferred by rule 47 of the Andhra Pradesh State and Subordinate Services
Rules is exercisable by the Governor personally is based on the Judgment of
this Court in Sardari Lal v. Union of India & ors. (1) But Sardari .Lal's
case has been overruled by the later decision of this Court in Shamsher Singh
v. State of Punjab, (2) and counsel for the respondents rightly conceded that
the impugned order cannot be assailed on this ground after Shamsher Singh's
case.
The real question that requires to be decided
in this appeal is whether rule 47 permits relaxation of any rule with
retrospective effect. Before proceeding to consider this aspect, it is
necessary to dispose of one small point raised on behalf of the appellants that
the impugned order was not really retrospective but prospective in operation
because it was only from the date of the order that the inclusion of the names
of the said 63 employees in the panels for the different years was regularised.
The order made on June 30, 1971 relaxed rule 4(a) of the Special Rules in the
case of these employees to validate the panels for the years 1965, 1966, 1968
and 1969. The impugned order thus regularized the inclusion of the names in the
panels which was done long before the order was made. The order is therefore
clearly retroactive and not prospective in operation.
Rule 47 of the Andhra Pradesh State and
Subordinate Services (1) (1971) 3 S.C.R. 461. (2) (1975) I S.C.R.
814.
707 Rules gives power to the Governor to
relax the rigour of the general rules in such manner as may appear to him to be
just and equitable. To show that rule 47 giving such wide power to the Governor
is not unique of its kind, counsel for the appellants referred to similar
provisions in several other Service Rules like, rule 13 of the Secretary of
State's Services (Medical Attendance) Rules, 1938, rule 10 of the Indian
Administrative ServiCe (Pay) Rules. 1954, rule 15 of the Indian Police Service
(Probation) Rules, 1954, rule 10 of the Indian Police Service (Pay) Rules, 1954,
and rule 10(b), proviso, of the Indian Forest Service (Appointment by
Competitive Examination) Regulations, 1967. Clearly, the power under rule 47 is
to be exercised in the interest of justice and equity. It is not difficult to
see that the occasions for :acting under rule 47 may well arise after the
attention of the Government is drawn to a case where there has been a failure
of justice. In such cases justice can be done only by exercising the power
under rule 47 with retrospective effect, otherwise the object and purpose of
the rule will be largely frustrated. The view we take finds support from the
decision of this Court in R.P. Khanna & Ors. v. S.A.F. Abbas & Ors. C)
In that case the Court was dealing with rule 3(3)(b) of the Indian Administrative
Service (Regulation of Seniority) Rules, 1954 which lays down that the year of
allotment of an officer who was appointed to the Service by promotion shall be
the year of allotment of the junior-most among the officers who entered the
service by direct recruitment who officiated continuously in a senior post from
a date earlier than the date of commencement of such officiation by the former.
The second proviso to the rule states that a promotee shall be deemed to have
officiated continuously in a senior post prior to the date of inclusion of his
name in the select list prepared in accordance with the requirements of the
Indian Administrative Service (Appointment by Promotion) Regulations, if the
period of such officiation prior to that date was approved by the Central
Government in consultation with the Union Public Service Commission. Overruling
a contention raised on behalf of the direct recruits that it was not open to
the State to make a retrospective declaration with regard to posts being made
equivalent to senior posts, this Court observed:
"From the point of view of workability
of the rule as well as the circumstances and the conditions of service it may
not always be practicable to make such prospective declaration. It is only when
the Government has found that it is necessary or desirable to declare such
posts equivalent to senior posts that the Government will do so. That will be
usually possible after the Government will have considered several factors,
namely, finance, structure of the service, the personnel fit for undertaking
the post. Normally, the promotees obtain promotion from the State Civil Service
after long service. That is why rule 3(3)(b) of the Regulation of Seniority
Rules is designed to arrive at a fair adjustment of the competing claims of the
direct recruits and the promotees. To hold that a promotee could not get the
benefit of officiation unless the post was declared as equivalent to a senior
cadre post before the promotee was appointed to officiate might defect the
policy of the Government. A promotee may be officiating continuously for a long
period and his name may be included in the select list after some time. Again a
person who officiates continuously for a long time may thereafter be not
included in the select list. Such a person might deprive a person who would
otherwise be found suitable for appointment by promotion after similar
officiation in a similar post. It is only when the State Government finds that
it is desirable to declare the post equivalent to a senior post inter alia by
reason of the efficiency of the person which has entitled him to promotion that
the consequential necessity .arises for giving him that senior post by
requisite declaration of a senior post. A retrospective declaration therefore
is in the scheme of things practical as well as reasonable." Counsel for
the respondents drew our attention to the words "for being appointed"
in rule 47 to contend that the rule was meant to be applied only prospectively.
According to counsel the rule when it says that nothing in the general rules
shall limit or abridge the power of the Governor to relax the rigour of these
rules in the case of any class or category of persons "for being appointed
to any civil post", it contemplates an appointment in future. We do not
think that this contention has any force. The words "for being
appointed" in the context in which they appear do not necessarily refer to
a future appointment. The validity of an appointment to any civil post may be
questioned after the appointment has been made and there is nothing to rule 47
to indicate that the Governor in exercise of power under this rule cannot deal
with such a case, if this was required in the interest of justice and equity.
It appears that after the Judgment of the
Division Bench of the High Court was delivered on November 11, 1974, by a
notification dated November 25, 1974 the provision in the Special Rules setting
out the qualifications required for the post of Tahsildar was amended by adding
a proviso saying that "the requirement in regard to being an approved
probationer and the exercise of powers of a Magistrate shall not apply in
respect of those Deputy Tahsildars in the Telengana area for whom promotion to
the category of Deputy Tahsildar was or is the first stage of promotion after
the 1st November 1956". The notification states that the amendment shall
be deemed to have come into force on the 1st June, 1961.
The amendment thus appears to cover the case
of the said 63 Deputy Tahsildars. However, the rule as amended does not arise
for consideration in this appeal which directed against the judgment of the
High Court passed on the rule as it stood prior to the amendment and we do not
express any opinion on the amended rule.
The appeal is allowed, the Judgment of the
High Court is set aside and the writ petition is dismissed. In the
circumstances of the ease we make no order as to costs.
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