Santosh Kumar Vs. State of
Andhra Pradesh & Ors [2003] Insc 278 (22
May 2003)
Shivaraj V. Patil & Arijit
Pasayat Shivaraj V. Patil J.
The Division Bench of the High Court by the common impugned order disposed
of Writ Petition Nos. 34839, 35775 of 1997 and 6758 of 1998. This appeal is
filed by the respondent No.4 in W.P. No. 35775/97. Some of the Head Constables
including the respondent No. 4 herein (hereinafter referred to as 'respondent')
in this appeal were appointed temporarily as out of seniority, Sub-Inspector
(OSSI) w.e.f. 3.12.1983 without following recruitment rules. The appellant was
appointed as direct recruit on 12.9.1985. Between 1996 and 1997, the Government
of Andhra Pradesh issued various Government Orders relaxing relevant
recruitment rules in favour of the respondent and others regularizing their
services with effect from the date of their temporary appointments affecting
the seniority of the appellant. The appellant challenged the same before the
A.P. Administrative Tribunal. The Tribunal held that the State Government had
power to relax the recruitment rules with retrospective effect but however, the
Tribunal held that the services rendered by the respondent and other similarly
placed persons could not be counted as officiating service for determining
their seniority as their appointment was not in accordance with the rules and
they had not qualified for appointment. Aggrieved by the order of the Tribunal,
the respondent and other promotees filed writ petitions before the High Court.
The High Court, by the impugned order, allowed the writ petitions holding that
the recruitment rules could be relaxed with retrospective effect. The High
Court also held that even if their initial appointment was not made by
following the procedure laid down by the rules, they had continued in the post
uninterruptedly till their services were regularized by relaxing the rules and
so their officiating services had to be taken into account for the purpose of
seniority. Hence, this appeal is filed questioning the validity and correctness
of the impugned order of the High Court.
It may be useful to notice few more facts.
The substantive posts of Sub-Inspectors of Police were calculated and
apportioned between direct recruits and promotees in 1983. According to the Special
Rules, promotees could not exceed 30% of the cadre. There were 200 vacancies
out of which 65 were allotted to the promotees and 127 to direct recruitment.
The appellant and the other direct recruits were appointed on 12.9.1985 after
selection made by APPSC. They underwent training and passed all the tests at
the end of training. The Government issued various orders in 1996-97 relaxing
the relevant recruitment rules in favour of the respondent and few others
regularizing their services with effect from the date of their temporary
appointment. Pursuant to the said orders, the Commissioner of Police issued
orders regularizing the services of the respondent and other respondents
similarly placed with effect from the date of their temporary appointment. Under
these circumstances, the appellant and other direct recruits filed O.As. before
the A.P. Administrative Tribunal challenging the relaxation of the Rules and
the consequential regularization of the services of the respondent and others.
The Tribunal partly allowed the O.As. holding that the Government were
competent to relax the rules in exercise of the powers conferred under Rule 47
of the A.P. State & Subordinate Service Rules, 1962 (for brevity `General
Rules) relating to service conditions with retrospective effect. However, by
referring to the various decisions of this Court, the Tribunal took the view
that the services rendered by the respondent and other OSSIs could not be
counted as officiating service for determining their seniority as their appointments
were not in accordance with the rules, they were not qualified for the
appointment and that retrospective regularization of their services adversely
affected the interest of the appellant and others who were regularly appointed
as direct recruits.
In the view it took, the Tribunal held that the impugned orders, to the
extent they affected the seniority of the appellant and others, were invalid.
The respondent and other promotee OSSIs filed writ petitions before the High
court against that part of the order of the Tribunal.
As already noticed above, the High Court allowed the writ petitions holding
that the recruitment rules relating to the conditions of service could be
relaxed with retrospective effect and even if their initial appointments were
not made by following the procedure laid down by the rules, the officiating
services of the promotees could be counted for the purposes of seniority as
they continued in the post uninterruptedly till the regularization of their
services.
Shri L.Nageshwara Rao, the learned Senior Counsel on behalf of the appellant
urged that it was not permissible to relax the basic recruitment rules with
retrospective effect; a person who was not appointed in accordance with the
rules, was not entitled to seniority from the date of his temporary
appointment.
According to him, even if appointment could be made as OSSIs from Head
Constables by relaxing the rules relating to qualification etc., such
relaxation could not affect the seniority of the direct recruits who were appointed
on regular basis after selection by APPSC. He took us through various rules and
Government Orders in support of his submissions.
On the other hand, Shri M.N.Rao, the learned Senior Counsel for the
respondent made submissions supporting the impugned judgment and justifying the
reasons recorded in the judgment in allowing the writ petitions. According to
learned Senior Counsel, the State Government had powers to relax the rules with
retrospective effect. Learned counsel for the State while adopting the
arguments of Shri M.N.Rao supported the impugned order.
We have carefully considered the submissions made on either side. Before the
Tribunal it was conceded that the Government have power to relax rules under
Rule 47 of the General Rules, but, however, it was contended that the basic
rules of recruitment i.e. A.P.
Police Subordinate Service Rules (for short `Service Rules') could not be
relaxed in exercise of the power under the said Rule. Having regard to the
facts of the case on hand, relevant Rules and law laid down by this Court the
Tribunal concluded that there was no relaxation of basic qualifications but
there was only relaxation of the conditions of service in the case of the
respondent in regularizing the services with retrospective effect as Sub-Inspector.
In paragraph 21 of the judgment the Tribunal stated that it is well- settled
law that the Government in exercise of powers conferred on them under Rule 47
of the General Rules can relax the rules of appointment and such relaxation
could be with retrospective effect. Reference was also made to the case of this
Court in M. Venkateshwarlu and others vs. Government of A.P. and others [(1996)
5 SCC 167] holding that Rule 47 ex facie does not contemplate any notice being
given in case of relaxation of eligibility of a single individual for promotion
to the post of Deputy Tehsildar; it was not necessary to issue a notice to all
affected parties in such a case.
However, the Tribunal held that as the appointment of the respondent and
others as OSSIs was not in accordance with the Rules and their appointments
were not made after considering the case of other eligible persons as per
Service Rules, their services could not be taken into consideration while
determining the seniority in the cadre of Sub-Inspectors. Finally, the Tribunal
concluded that the unofficial respondents in the O.As. could claim to be
regularly appointed as Sub- Inspectors only from the dates on which the
Government have issued orders relaxing the service rules; any notional dates of
relaxation given to them affecting the seniority of regularly appointed
Sub-Inspectors prior to the date of relaxation of Rules could not be held
valid. In other words, the Tribunal held that the Government have power to
relax the Rules with retrospective effect for the purpose of appointment and
promotion but the seniority could not be assigned to them prior to the date of
regularization of services affecting the seniority of others, who are regularly
appointed prior to date of their regularization. In our view, the Tribunal was
not right in saying that any notional date of relaxation was given to the
respondent affecting the seniority of the appellant. In fact, service of the
respondent was regularized from the actual date on which he was temporarily promoted
as OSSI which was permissible in terms of para 47(B) of the Constitution Bench
judgment of this Court in Recruit Class II Engineering Officers' Association
vs.
State of Maharashtra and others [(1990) 2 SCC 715].
Moreover, the promotion given to the respondent was in promotee quota which
did not affect the appellant who was recruited later as a direct recruit. It
may be mentioned that there was no direct recruitment in the year 1983-84 to
the post of Sub-Inspector when services of the respondent and others were
regularized. The appellant was recruited in the year 1985 i.e.
subsequent to the date on which the respondent started working actually as
OSSI though temporarily. In this view, the question of affecting the seniority
of the appellant without notice did not arise.
We may state here itself that the Tribunal did not record a finding whether
the services of the unofficial respondents were regularized as against the
vacancies meant for promotees or not.
The High Court in para 7 of the judgment has recorded a clear finding that
the services of the respondent and others were regularized in respect of the
vacancies available in the quota meant for the promotees after observing, thus:
- "7. There is another aspect on which no arguments were addressed across
the Bar and learned Tribunal has also not recorded any finding. In these cases,
the petitioners herein made a specific assertion that the regularization of
their services with effect from their initial date of temporary appointment was
done within the 30% quota allocated to the promotees. There is no specific
denial of this fact in the counter affidavit filed by the non-official
respondents herein before the Tribunal though an attempt was made to show that
when the petitioners herein were promoted there were no vacancies available
within the quota of the promotees and that those appointments were made in the
vacancies meant for direct recruits as there was some delay in finalization of
the appointments by direct recruits. But there is no specific assertion that as
on their date of appointment, vacancies in the promotees quota were not
available for the purpose of regularizing the services of the petitioners
herein. In fact, on behalf of the Government respondent No.
1 the Assistant Secretary, Home filed an additional counter affidavit in the
Tribunal specifically supporting the contention of the petitioners herein that
the regularization of their services was made in respect of vacancies available
out of the quota of the promotees. The Tribunal has not recorded any finding on
this aspect.
This question was not addressed in this Court by the learned counsel for the
unofficial respondents herein. For the purpose of these writ petitions and in
the absence of any clinching material, the statement made in the affidavit
filed on behalf of the Government has to be accepted and it must be presumed
that the regularization directed to be effected under the impugned G.Os. was in
respect of the vacancies available in the quota meant for the promotees."
Some arguments were advanced before us to contend that the regularization of
services of the respondent and others was not against the quota meant for
promotees.
In view of what is stated in paragraph 7 of the impugned judgment, extracted
above, and, particularly, when no argument was advanced before the High Court
in this regard, it is not possible to accept the contention put forth on behalf
of the appellant disputing the position that the regularization of services of
the respondent was against the quota meant for promotees.
Rule 47 of the General Rules and corresponding new Rule 31 of 1996 Rules
read: - "47. Relaxation of Rules by the Governor. No rule made under the
proviso to Article 309 of the Constitution of India or contained under Article
313 of that Constitution shall be construed to limit or abridge the power of
the Governor to deal with the case of any class or category of persons for
being appointed to any civil post, or of any person who is serving or has
served 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 be dealt with in any manner less
favourable to the person or class of persons than that provided by that
rule." "31. Relaxation of Rules by the Governor. Notwithstanding
anything contained in these rules or in the special rules, the Governor shall
have the power to relax any rules contained in these rules or Special Rules, in
favour of any person or class of persons, in relaxation to their application to
any member of a service or to any person to be appointed to the service, class
or category or a person or a class of persons, who have served in any civil
capacity in the Government of Andhra Pradesh in such manner as may appear to be
just and equitable to him, where such relaxation is considered necessary in the
public interest or where the application of such rule or rules is likely to
cause undue hardship to the person or class of persons concerned." Based
on the language and content of Rule 47 of General Rules and in the light of the
decisions of this Court the Tribunal as well as the High Court have firmly
concluded that the State Government have power to grant relaxation of Rules
with retrospective effect.
A Constitution Bench of this Court in Direct Recruit Class II Engineering
Officers' Association`s case (supra), after considering various aspects and
earlier decisions, summed up the conclusions in paragraph 47 of the judgment.
For our purpose paras (A) and (B) of the said paragraph are relevant, which are
extracted hereunder: - "47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his
seniority has to be counted from the date of his appointment and not according
to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is
only ad hoc and not according to rules and made as a stop-gap arrangement, the
officiation in such post cannot be taken into account for considering the
seniority.
(B) If the initial appointment is not made by following the procedure laid
down by the rules but the appointee continues in the post uninterruptedly till
the regularization of his service in accordance with the rules, the period of
officiating service will be counted." The respondent and others were
appointed as Sub- Inspectors out of seniority looking to the outstanding merit
and record prior to the direct recruits like the appellant. Their services were
admittedly regularized by relaxing the Service Rules in exercise of power
available under Rule 47 of the General Rules. The appellant did not challenge
the validity of Rule 47 and no malafides were established against the
authorities in exercise of powers of relaxation under the said Rule. The
Tribunal has recorded a finding that the rule relating to the method of
recruitment was not relaxed but only the conditions which had to be fulfilled
for the purpose of promotion to the category of Sub-Inspector were relaxed;
this finding is not disturbed by the High Court; there was no relaxation as to
the basic qualification; the State Government regularized the services of the
respondent and others with retrospective effect from the date they were
temporarily appointed as Sub-Inspectors (OSSIs). It is also not disputed that
they continued in service uninterruptedly for about 12-13 years till their
services were regularized with retrospective effect.
This being the factual position it could not be said that the corollary to
paragraph 47(A) of the aforementioned Constitution Bench judgment applies to
the facts of the present case. Once their services were regularized it cannot
be contended that their initial appointment was only on ad hoc basis and not
according to the Rules and made as a stop-gap arrangement. On the other hand
paragraph 47(B) supports the case of the respondent.
This Court had occasion to consider the power of Government to relax the
service rules under Rule 47 of General Rules in Government of Andhra Pradesh
and others vs. Sri D. Janardhana Rao and another [(1976) 4 SCC 276]. In that
case a panel of Deputy Tehsildars for promotion to the cadre of Tehsildars was
prepared.
The rules at the relevant point of time required that for including in the
panel for promotion as Tehsildars, the Deputy Tehsildars had to satisfy certain
qualifications including that as Deputy Tehsildars they should have exercised
Magisterial powers. Taking note of the historical reasons, the Government
considered it unfair to exclude the Deputy Tehsildars from Telangana area of
Andhra Pradesh for inclusion in the panel for promotion as Tehsildars. Hence
exercising power under Rule 47 the Government granted relaxation and the Deputy
Tehsildars coming from Telangana area were included in the panel for promotion
as Tehsildars.
When there was challenge to the power of the Government to relax the
conditions of service under Rule 47, this Court expressed the view that Rule 47
of the General Rules gives power to the Governor to relax the rigour of the
General Rules in such manner as may appear to be just and equitable. The Court
went on to say: - "It is not difficult to see that the occasion for acting
under Rule 47 may well arise after the attention of the Govt. 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 R. 47 with retrospective effect,
otherwise the object and purpose of the rule will be largely frustrated."
(Emphasis supplied) In the same judgment the contention that relaxation can be
made under Rule 47 prospectively and not retrospectively was rejected by this
Court.
This Court yet again in M. Venkateshwarlu and others vs. Government of A.P.
and others [(1996) 5 SCC 167], held that under Rule 47 the Governor is
empowered to relax the rigour of the General Rules in such manner as may appear
to him to be just and equitable retrospectively also. In that case the
appellant was promoted as Deputy Tehsildar on 20.6.1984. The panel effective
from 1.7.1983 for regular promotion was to be drawn for the year 1983-84; he
had not completed the requisite length of service postulated by Rule 8(ii) of
the A.P. Revenue Subordinate Service Rules, 1961 (Special Rules), for regular
promotion as Deputy Tehsildar. He requested for relaxation under Rule 47 of the
Rules. The State Government relaxed the shortfall and empanelled him for the
year 1983-84 instead of 1987-88 and accordingly he was promoted on regular
basis. This relaxation given to the appellant was assailed. Dealing with the
question, in paragraph 8, this Court observed: - "8. Thus it could be seen
that the Governor is empowered to relax the rigour of the General Rules in such
manner as may appear to him to be just and equitable in the interest of justice
and equity. Justice can be done only by exercising the power retrospectively.
Otherwise, the object and purpose of Rule 47 will be largely frustrated. The
finding of the Full Bench of the Tribunal that Rule 47 cannot be exercised
retrospectively is, therefore, clearly illegal." (Emphasis supplied) In
that judgment another question was also considered whether giving of notice to
the persons likely to be affected was necessary before exercising the power of
relaxation under Rule 47. In paragraph 11 of the judgment in regard to the same
question it is stated, thus:- "11. The question then is: whether notice to
all the persons who are likely to be affected is required before exercising the
power under Rule 47? The rule ex facie does not contemplate any notice being
given. It is not a case of considering inter se claim of any particular
individuals. It is a case of relaxing the eligibility of a single individual as
against many. Under these circumstances, we do not think that the rule
envisages notice to all the affected persons." At any rate, in the present
case not giving notice to the appellant before relaxation was given to the
respondent was immaterial as promotion was given to the respondent in promotee
quota, as already stated above.
The facts of the case in Desoola Rama Rao and another vs. State of Andhra
Pradesh and others [1988 (Supp.) SCC 221] were almost similar to the facts of
the case with which we are dealing. In that case respondents 3 and 4 were
temporarily appointed as Assistant Engineers on 14.8.1959 and 19.5.1960
respectively before the appellants were recruited as Assistant Engineers. In
exercise of powers under Rule 22(a) of the General Rules, the services of
respondents had been regularized retrospectively with effect from 19.5.1961 by
the Chief Engineer by order dated 3.5.1967. In paragraph 4 of the said judgment
this Court observed that the regularization of services of respondents 3 and 4
as directed to take effect, is not anterior to their appointment as Assistant
Engineers, the regularization cannot be said to have been vitiated on account
of arbitrariness. From this judgment it follows that the power of relaxation
can be exercised retrospectively and it can be exercised for the specific
purpose of regularization of services of a temporary appointee with
retrospective effect from the date of his appointment under Rule 10(a) of the
A.P.
General Rules.
Yet, another decision of this Court in P.V.T.
Phillip vs. P. Narasimha Reddy and others [1993 Supp.
(3) SCC 438] supports the case of the respondent to the effect that power to
relax under Rule 47 can be exercised with retrospective effect wherever
required in the interest of justice and equity.
In the case on hand the appointment of the respondent made under Rule
10(a)(i)(I) was regularized by relaxing the relevant service rules and the
Standing Order No. 107 of Andhra Pradesh Police Manual Part I by exercising the
powers under Rule 47 of General Rules.
The Government, as observed by the High Court, for good reasons have chosen
to regularize the services of the respondent with effect from the date of
temporary promotion as Sub-Inspector in recognition and providing incentive for
merit and in public interest. The High Court also noticed that the respondents
were given out of seniority promotions on the basis of their individual
extraordinary services and merit. The High Court found fault with the
observations made by the Tribunal that the appointment of the respondent was
not in accordance with the rules and that his appointment was not made after
considering the case of all other eligible persons as per the Rules and as such
their services could not be counted for seniority in the cadre of
Sub-Inspectors from the date of their temporary appointment. The High Court
observed that the question of considering the case of every eligible person
along with them would scarcely arise as in such cases, it is only a particular
individual based on his notable performance and merit would be picked up for
out of seniority promotion as has been done in this case. The High Court also
noted that the General Rules provided for ad hoc appointment under Rule
10(a)(i)(1) of the General Rules and in this case there is a provision for
appointment by promotion and that is how the respondent had been promoted. In
regard to giving of notice to the persons likely to be affected before exercise
of power to relaxation under Rule 47, the High Court in paragraph 22 of the
impugned judgment observed: - "22. The only other contention which needs
mention is that at any rate the impugned orders of the Government would not
affect the interests (seniority) of the un-official respondents inasmuch as no
notice has been given to them before the Government passed the impugned orders.
It may be mentioned here, the impugned orders do not relate to fixing the inter
se seniority within the cadre of Sub-Inspectors. The petitioners herein were
promoted in their individual cases based on their exceptional merit and
performance. If regularization of their services by relaxing the rules under Rule
47 of the A.P. General Rules happens to affect the seniority of others, this
itself does not support the contention that the impugned orders could not have
been passed without prior notice to the un-official respondents and others.
Further, Rule 47 of the General Rules does not contemplate issuance of notice
before the power is exercised it. The Supreme Court in the case of M.
Venkateswarlu (supra) has held that Rule 47 ex facie does not contemplate any
notice. It was also observed that it was not a case to consider inter se claims
of any particular individual and that it was a case of relaxing the eligibility
requirement of a single individual as against many. In these circumstances, it
was held that no notice was required." Another important factor to be kept
in mind is that a finding is recorded by the High Court that the promotion
given to the respondent to the post of Sub- Inspector was against the vacancies
meant for the quota of promotees. The respondent was admittedly promoted on
temporary basis as OSSI prior to the recruitment of the appellant. Once his
services were regularized that too in the promotee quota, the appellant being
direct recruit cannot make any grievance. In this view it cannot be said that
the appellant was an affected person for want of notice before passing the
order of relaxation to question the seniority of the respondent.
The decisions cited on behalf of the appellant, according to the High Court,
did not support the case of the appellant having regard to the facts of those
cases and rightly so in our view. That apart, in the light of the direct
decisions of this Court dealing with Rule 47 of the General Rules the High
Court was right in following them in the impugned order.
The case of N.K. Durga Devi vs. Commissioner of Commercial Taxe, Hyderabad
and others [(1997) 11 SCC 91] also does not help the appellant for three
reasons (1) it is on the facts of that case, (2) as can be seen from paragraph
3 of the judgment, the order was made on the basis of concession made by the
learned counsel that the relaxation could not have been validly passed without
giving notice to all the affected parties since that would be in violation of
principles of natural justice, and (3) respondent was promoted as OSSI in
promotee quota and not against quota meant for direct recruits to which
category the appellant belonged.
Thus viewed from any angle we do not find any good reason or valid ground to
interfere with the impugned judgment. Hence, finding no merit in this appeal it
is dismissed. No costs.
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