CASE NO.: Appeal (civil) 1402-03 of 1995 PETITIONER: K ANJAIAH ETC. RESPONDENT: K. CHANDRAIAH AND ORS. ETC. DATE OF JUDGMENT: 03/03/1998 BENCH: G.B. PATTANAIK & M. SRINIVASAN JUDGMENT:
JUDGMENT
1998 (2) SCR 35
The Judgment of the Court was delivered by
PATTANAIK, J. These appeals are directed against the order of Andhra
Pradesh Administrative Tribunal, Hyderabad dated 14.9.1994 in OA Nos. 6742
of 1993 and 2465 of 1993. By the impugned order the Tribunal has quashed
Regulation 9(2) of the Andhra Pradesh College Service Commission (terms and
conditions of service of employees of the Commission) Regulation, 1986
(hereinafter referred to as the ‘Regulation’) inter alia on the ground that
it contravenes Regulation 9(1) and it purports to wipe off the past
services rendered by the government servant. Superintendent, College
Service Commission is the appellant.
The brief facts of the case are that the Service Commission in Andhra
Pradesh was formed under the Provisions of Andhra Pradesh College Service
Commission Act, 1985 (hereinafter referred to as ‘the Act’).The employees
of this Commission came on deputation from the State Government in
different batches and such deputationists were managing the affairs of the
Commission. The Commission itself was constituted by the State Government
in exercise of powers conferred upon it under Section 3 of the Act. Section
7 of the Act deals with the staff of the Commission and it stipulates that
the Secretary of the Commission shall be appointed by the Government and
other employees as the Commission may with the previous approval of the
Government appoint from time to time. Section 7(3) of the Act provides that
the terms and conditions of service of such employees of the Commission
shall be such as may be provided for by Regulation. Section 7 of the Act is
extracted hereinbelow in extenso:-
STAFF OF THE COMMISSION 7. (1) The staff of the Commission shall
consist of:
(a) Secretary, who shall be appointed by the Government, arid
(b) Such other employees as the commission may, with the previous approval
of the Government, appoint from time to time.
(2) The Salary of the Secretary and other employees of the Commission,
shall be such as may be prescribed.
(3) The other terms and conditions of Service of the Secretary shall be
such as may be prescribed and those of the other employees of the
Commission shall be such as may be provided for by Regulations.”
Section 20 of the Act confers power upon the Commission to make Regulation
with the previous approval of the Government and such Regulation may
provide the terms and conditions of the Services of the employees of the
Commission. In exercise of the power conferred upon the Commission under
Section 20 read with Section 7(3).of the Act. a set of Regulations were
framed by the Commission and the Government examined the same and conveyed
its approval as required in Sub-Section (1) of Section 20 by Government
letter dated 29.11.1986. For better appreciation Section 20 of the Act is
extracted hereinbelow in extenso:-
POWER TO MAKE REGULATIONS
Section 20 – (1) The Commission may, with the previous approval of the
Government make regulations not inconsistent with the provisions of this
Act or the rules made thereunder for discharging its functions under this
Act,
(2) In particular and without prejudice to the generality of the foregoing
power, such regulations may provide for all or any of the following
matters, namely :-
(a) the terms and conditions of services of the employees of the
Commission under sub-section (3) of Section 7.
(b) The manner of selection of persons for appointment to the posts of
teachers under sub-section (1) of Section 10.
(c) The procedure for the conduct of business of the Commission under
Sub-section (2) of Sections 10 and 13; or
(d) The income and expenditure, budget, accounts and audit and annual
report of the Commission.”
Regulation 9, as originally approved by the Government, stood amended and
the amended Regulation 9(1) reads thus :-
“The persons drawn from other departments will carry their service and they
will be treated as on other duty for a tenure period to be specified by the
Commission or until they are permanently absorbed in the Commission
whichever is earlier.”
“Regulation 9(2)-The services of those staff members working in the
Commission on deputation basis and opted for their absorption in the
Commission, shall be appointed regularly as the staff in the Commission,
cadre to which they belong as per the orders of Government approving their
appointments batch by batch and to determine the seniority accordingly. For
this purpose the Commission may review the promotions already affected.” It
may be stated here that the original Regulation 9 was re-numbered as
Regulation 9(1) and Regulation 9(2) was inserted by amendment. Since the
Commission was being manned by the employees on deputation from the State
Government, the Commission asked for exercise of option by those employees
who were desirous to be absorbed permanently in the Commission. The private
respondents are those employees who are on deputation with the Commission
from the State Government arid they approached the Administrative Tribunal
challenging the validity of Regulation 9(2) and the Tribunal by the
impugned judgment has held the said provision to be ultra virus and hence
these appeals. While granting leave this Court indicated that the Special
Leave is granted in so far as the validity of Regulation 9(2) is concerned.
In this view of the matter the only question which arises for consideration
is whether the aforesaid provision of Regulation 9(2) can be said to be
invalid?
Mr: Ram Kumar, learned counsel appearing for the appellants, contended that
the employer has a right to determine the service conditions of the
employees including the principle on which the seniority of the employees
can be governed and in exercise of that power the employer, namely. Service
Commission, having framed the Regulation and having indicated that the
persons who are continuing on deputation can be absorbed in the Commission
batch by batch as per the orders of the Government and their seniority
naturally will be determined in accordance with their absorption and the
said principle does not violate any of the constitutional provision. Mr.
Ram Kumar, learned counsel, therefore, contended that the Tribunal
committed an error in striking down Regulation 9(2), the learned counsel
further contended that Regulation 9(1) has no connection with Regulation
9(2) in as much as Regulation 9(1) deals with a situation not connected
with the determination of seniority of the employees and, therefore,
Regulation 9(2) cannot be said to be violative of Regulation 9(1} and the
Tribunal was thus in error in coming to the said conclusion. In support of
his submission the learned counsel relied upon the decisions of this Court
in Chief Engineer and Secretary, Engineering Department for and on behalf
of Chandigarh etc. v. K.S. Brar & Anr. Etc., [1988] Suppl Supreme Court
Cases, 756 and M. Hara Bhupal v. Union of India & Ors., [1997] 3 Supreme
Court Cases 561.
Mr. Reddy, learned counsel appearing for the private respondent on the
other hand contended, that when persons from different sources are drafted
to serve in a new service, their pre-existing length of service in the
parent department should be respected and preserved by taking the same into
account in determining their ranking in the new service cadre and this has
been done under Regulation 9(1) that benefit cannot be taken away for
determination of the inter se seniority as per Regulation 9(2) and,
therefore, the tribunal was justified in striking down Regulation 9(2), In
support of his contention the learned cuunsel relied upon the decisions of
this Court in Wing Commander J. Kumar v. Union of India, (1982) 2 Supreme
Court Cases 116 and K Madhavan & Anr. Etc. v. Union of India & Ors. etc.,
[1987] 4 Supreme Court Cases, 566.
Mrs. Amareswari, learned senior counsel appearing for the State of Andhra
Pradesh on the other hand submitted, that Regulations 9(1) and 9(2) have to
be harmoniously read, the learned counsel further contended that though
there has been little clumsiness in the drafting of Regulation 9(2) but the
intention is clear that the deputationists on being finally absorbed in the
Commission would get their seniority determined in the new cadre under the
Commission by taking into account the past services rendered under the
Government and, therefore, the provisions of Regulation 9(2) can be read
down to the aforesaid effect and should not be struck down.
In view of the rival submissions at the Bar the only question that arises
for consideration is whether the provisions of Regulation 9(2) shall be
upheld by reading down the same or the language used in the said provision
is not susceptible to be read down and should be struck down by the
Tribunal ? It is a cardinal principle of construction that the Statute and
the Rule or the Regulation must be held to be constitutionally valid unless
and until it is established they violate any specific prevision of the
Constitution. Further it is the duty of the Court to harmoniously construe
different provisions of any Act or Rule or Regulation, if possible, and to
sustain the same lather than striking down the: provisions out right. In
other words the Court has to make an attempt to see if the different
provisions of the Regulation can survive and in making that attempt it is
open for the Court to read down a particular provision to clarify any
ambiguity so that the provision can be sustained but not to relegislate a
provision, This being the parameters under which a Court is required to
scrutinise the provisions of any Act by Regulation when the same is
challenged, we would now examine the Validity of Regulation 9(2),
Admittedly when the Commission started functioning after being constituted
by the Government in exercise of powers under the Act the employees came on
deputation from the State Government to man the job in the Commission. When
the Commission finally takes a decision to permanently absorb these
deputationists after obtaining their option the question of their inter se
seniority in the Commission crops up and Regulation 9(2) deals with the
said situation. In the case of R.S. Makashi & Ors. v. I.M. Menon and Ors.,
[1982] 1 Supreme Court Cases 379, this Court had indicated that it is a
just and wholesome principle commonly applied to persons coming from
different sources and drafted to serve a new service to count their pre-
existing length of service for determining their ranking in the new service
cadre. The said principle was reiterated by this Court in K. Madhavan’s
case (supra), A three Judge Bench judgment of this Court in the case of
Wing Commander J. Kumar (supra) also reiterated the aforesaid well known
principle in the service jurisprudence, and in the case in hand this
principle has been engrafted in Regulation 9(1), The question that arises
for consideration is whether the benefits conferred upon a deputationist
under Regulation 9(1) has been taken away by Regulation 9(2)? the Tribunal
has come to the aforesaid conclusion and accordingly has struck down. If a
literal meaning is given to the language used in Regulation 9(2), it may
appear that the benefits conferred under Regulation 9(1) is given a go bye
and the past services rendered by the deputationists in their parent cadre
is not being taken into account while determining their inter se seniority
in the new cadre under the Commission. But as has been contended by Mrs.
Amareswari, learned senior counsel appearing for the State Government who
is the authority for approval of the Regulation that the phraseology used
in Regulation 9(2) is no doubt little cumbersome but it conveys the meaning
that the total length of service of these deputationists should be taken
into account for determining the inter se seniority in the new service
under the Commission and the past service is not being wiped off. We find
considerable force in this argument and reading down the provision of
Regulation 9(2) we hold that while determining the inter se seniority of
the deputationists in the new cadre under the Commission after they are
finally absorbed, their past services rendered in the Government have to be
taken into account. In other words the total length of service of each of
the employees would be the determinative factor for reckoning their
seniority in the new services under the Commission. Mr. Ram Kumar, Jearned
counsel appearing for the appellant vehemently urged that length of service
under the Commission should be the criteria For determining the inter se
seniority but we are unable to persuade ourselves to agree with the
aforesaid submission of the learned counsel. It is not known that when the
persons were brought over to the Commission from the Government on
deputation whether their option had been asked for or not? Further such a
principle if accepted then the inter se seniority would be dependent upon
the whim of the Government, and we see no rationale behind the aforesaid
principle. The two decisions on which Mr. Ram Kumar, learned counsel placed
reliance in support of his contention infact do not lay down the aforesaid
proposition. We have, therefore, no hesitation to reject the submission of
Mr. Ram Kumar.
In the aforesaid premises we dispose of these appeals by reading down the
provisions of Regulation 9(2) in the manner as indicated earlier rather
than Striking down the same and hold that while determining the inter se
seniority of the deputationists in the services of the Commission their
entire length of continuous service shall be the basis. These appeals are
disposed of accordingly. But in the circumstances there will be no order as
to costs.