ORDER
Goda Raghuram, J.
1. All the petitioners, except Petitioner No. 4, are currently working as Typists in the Northern Power Distribution Company of Andhra Pradesh Limited (A.P.N.P.D.C.L.). All the petitioners were appointed as Typists on various dates in March, 1991 and as such completed their probation of two years after their date of entry into service. Independent of their dates of entry, their inter se seniority was fixed on the basis of their ranking they respectively secured at the time of selection pursuant to which, they were appointed as Typists. There is no dispute, among the petitioners as to their inter se seniority positions.
2. Respondents 4 to 8 applied for appointment as Lower Division Clerks and on selection, were required to undergo three months training prior to appointment to the post. They had successfully undergone the three months period of training and were appointed as Lower Division Clerks on 11.05.1991, 04.05.1991, 05.05.1991, 05.05.1991 and 04.05.1991 respectively. (Vide Col.5, Serial Nos.244, 245, 254, 261 and 262 of the provisional seniority list of L.D.C./L.D.C.(R.C.), dated 30.06.1993).
3. The fourteenth (14th) petitioner after initial appointment as Typist was converted as a Lower Division Clerk and he currently belongs to the category of Lower Division Clerks, as do respondents 4 to 8.
4. It is the synoptic case of the parties that the categories of Typists and Lower Division Clerks are eligible for consideration for promotion as Upper Division Clerks. According to the service regulations in a unit of four vacancies (of Upper Division Clerks) the third and fourth vacancy are to be filled up by promotion from among the Lower Division Clerks, Typists and Steno-Typists. It is also the admitted position that appointments to the posts of Upper Division Clerks from the categories inter alia of Lower Division Clerks and Typists by the method of promotion is to be on the basis of seniority.
5. Since Typists and Lower Division Clerks belongs to different categories of service, who are both eligible for promotion to the third and fourth vacancy of Upper Division Clerks in a unit of four vacancies, it is axiomatic that the Andhra Pradesh Northern Power Distribution Company Limited – the 2nd respondent is required to prepare an integrated seniority list of Typists and Lower Division Clerks for considering promotions to the category of Upper Division Clerks. In any such integration process, it is not in dispute that the inter se seniority while preparing such integrated seniority list should be based on the dates of entry into service.
6. The second respondent company has inherited some of the powers, responsibilities, functions and staff from the erstwhile Andhra Pradesh State Electricity Board. It is stated by the learned counsel for the first respondent, that second respondent came into being some time in the year 2001. It is admitted by the respondents that no independent regulations have been framed by the respondents and that they are following the regulations framed by the erstwhile Andhra Pradesh State Electricity Board. The conditions of service of the employees of the second respondent are admittedly governed by the Andhra Pradesh State Electricity Board Service Regulations (the Regulations). Regulation 26 occurring in Part-II of the Regulations sets out the principles governing seniority. To the extent relevant and material for the purposes of this lis. Regulation 26 reads as under:
26. Seniority:- (a) The seniority of a person in a class of service, category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the Board or other appointing authority as the case may.
Provided that where no ranking has been fixed in respect of any person in a service, class, category or grade, the seniority of such candidate shall be determined by the date of his first appointment to such service, class, category or grade. Ift any portion of the service of such person does not count towards probation under regulations 14(c), (e), 19 and 38(b), his seniority shall be determined by the date of commencement of his service which counts towards probation.
7. While Typists along with Steno-Typists are classified as Category 5 in Class III of the Andhra Pradesh State Electricity Board Personnel & General Services, Junior Assistants-Lower Division Clerks are classified as Category 4 (a). Annexure-IV to the Regulations referable to Regulation 15, sets out the tests, training or qualifications required to be possessed by persons belonging to various categories of service. In so far as Category 4 (a) – Lower Division Clerks are concerned, Annexure-IV stipulates that Lower Division Clerks recruited direct shall be on training for a period of three months, during which, they would be paid stipend as may be decided by the Board from time to time. Column 3 of Annexure-IV, in so far as category 4(a) is concerned, stipulates that the period of training shall not count for probation or increments. On an interactive analysis of the specifications in Annexure-IV and Regulation 26, the inference is clear that the period spent by a Lower Division Clerk on training does not count towards seniority.
8. In preparing an integrated seniority list of Lower Division Clerks and Typists, therefore, the seniority of the Lower Division Clerks shall have to be determined, vis-à-vis the category of typists, in conformity with Regulation 26 of the Regulations and the specifications in Annexure-IV i.e. with effect from the date on which each of the Lower Division Clerks had completed their period of training and has been treated as having entered service as a Lower Division Clerk.
9. The fact that the 1st respondent had prepared the seniority list of Lower Division Clerks in fidelity to the above position is apparent from the Annexure to the Provisional Seniority list of L.D.C./L.D.C.(RC) as on 30.04.1993, dated 30.06.1993. In this provisional seniority list of Lower Division Clerks the names of respondents 4 to 8 occur in the annexure of the aforesaid Memorandum at S. Nos. 244, 245, 254, 261 and 262 respectively and their date of entry in to Board service specified in Column 5 is mentioned as 11.05.1991, 04.05.1991, 05.05.1991, 05.05.1991, and 04.05.1991 respectively, which are the respective dates on which respondents 4 to 8 had completed their period of three months training and started functioning as Lower Division Clerks proper on probation. Column 6 of the Annexure to the Memorandum dated 30.06.1993, in so far as the respondents 4 to 8 are concerned, also specifies the same dates as in Col.5 as the dates on which these respondents had respectively commenced their probation. This is the contention of the petitioners as regards the dates of commencement of probation of respondents 4 to 8 is concerned and none of the respondents demur from this assertion of the petitioneRs. The seniority of respondents 4 to 8 in the category of Lower Division Clerks has therefore, to be considered consistent with their dates of entry into service, as recorded in the Establishment records.
10. As all the petitioners (except Petitioner No. 14, who is currently a Lower Division Clerk) have admittedly entered into regular service as Typists prior to the dates of entry into service by respondents 4 to 8. In any integrated seniority list of Typists and Lower Division Clerks, the petitioners (except the 14th petitioner) will have to be shown as senior to the respondents 4 to 8. This is the inescapable result of the application of the seniority rule in Regulation 26 read with stipulations in Annexure-IV regarding the non-counting of training period of Lower Division Clerks for probation and increments.
11. The second respondent issued a Memo. dated 16.07.2002, impugned in the Writ Petition. The petitioners are aggrieved by the instructions contained in the said Memorandum, whereby, it is directed that while integrating the seniority of Lower Division Clerks and Typists, the date of joining as a trainee Lower Division Clerk and the date of joining as a Typist shall be taken as a criterion. As a result of the instructions in the impugned memo, the respondents 4 to 8 would be treated as seniors to the petitioners in an integrated seniority list of Typists and Lower Division Clerks, while considering promotions to the non-selection category of Upper Division Clerks. The petitioners therefore seek invalidation of the memo. dated 16.07.2002 issued by the second respondent as also directions to the respondents to prepare an integrated list of seniority of Lower Division Clerks and Typists duly taking the date of appointment which counts for probation as the criterion, in accordance with Regulation 26 of the Regulations, while considering the promotions to the posts of Upper Division Clerks. The second respondent positively asserts that the seniority of the L.D.Cs. would be reckoned including the period of the three months they had undergone as trainees.
12. The impugned memorandum dated 16.07.2002 is clearly inconsistent with the legal position as obtaining under Regulation 26 of the Regulations read with the specifications in Annexure IV of the regulations as has been analyzed supra.
13. Sri S. Ravindranath, learned counsel for the respondents, contends that the policy of treating trainee Lower Division Clerks as Lower Division Clerks from the initial date of training has been a long practice in the erstwhile Andhra Pradesh State Electricity Board, a tradition which has since been followed by the second respondent too. It is also contended that the impugned memorandum dated 16.07.2002 is based on an earlier memorandum bearing No. DS(B)/DN-VI/Z1/206/93-1 dated 02.04.1994 of the Andhra Pradesh State Electricity Board. Paragraph 2 of the Memo. dated 02.04.1994, which alone is relevant to the dispute herein reads as under:
“The candidates directly recruited to the categories of Typists or Steno-Typists in the Personnel and General Service and in the Accounts Service are not required to undergo any training. Typists and Steno-Typists are entitled for promotion to the category of Assistants in Personnel and General Services and to the category of Upper Division Clerks in the Accounts Service along with Junior Assistants/Junior Assistants-cum-Computer opera-tors and Lower Division Clerks respectively. Though a Typist and Junior Assistant/Junior Assistant-cum-Computer Operator or L.D.C. join on the same day, the commencement of probation in respect of Junior Assistant/Junior Assistant-cum-Computer Operators or Lower Division Clerks delayed by three months because of the training period while the Typist commences his probation from the day he joins for duty. After careful consideration of the matter, the Andhra Pradesh State Electricity Board directs that the Training period of three months for Junior Assistants/Junior Assistant-cum-Computer Operators and Lower Division Clerks may be taken into account for the purpose of fixation of integrated seniority list of Junior Assistant/Junior Assistant-cum-Computer Operators Typists and Steno-Typists for the purpose of promotion as Assistant in personal general service and Lower Division Clerks, Typists and Steno-typists for the purpose of promotion as Upper Division Clerks in Accounts Service without disturbing their seniority assigned during the selection for appointment as Junior Assistant/Junior Assistant-cum-Computer Operators and Lower Division Clerks. They shall however continue to draw during the period of training consolidated emoluments as stipend as per the existing provisions in the Regulation.”
14. Another contention urged on behalf of the second respondent is that as the impugned memorandum dated 16.07.2002 is based on an earlier memorandum dated 02.04.1994, the challenge by the petitioners to the validity of the memo dated 16.07.2002 is barred delay and laches.
15. Admittedly, no integrated seniority list of Lower Division Clerks and Typists has been prepared even till today. It is not the case of the second respondent that the petitioners became ripe for promotion to the category of Upper Division Clerks prior to the institution of writ petition. The petitioners are also not aggrieved by any earlier promotions made to the category of Upper Division Clerks. Their grievance is as regards their potential supercession visa-à-vis respondents 4 to 8 in the matter of promotions to the category of Upper Division Clerks on the basis of reckoning of inter se seniority between the category of Typists and respondents 4 to 8 i.e. the category of Lower Division Clerks on the basis of illegal conferment of seniority to respondents 4 to 8 in view of the illegal, unauthorized and vagrant instructions issued by second respondent by the memorandum dated 16.07.2002 albeit based on an earlier exercise of an identical nature in the memorandum dated 02.04.1994.
16. It is neither pleaded, urged nor demonstrated before this Court by the second respondent that either the memorandum dated 02.04.1994 or the impugned memorandum dated 16.07.2002 are regulations made either by the erstwhile Andhra Pradesh State Electricity Board or the second respondent in purported exercise of the powers to make Regulations, under Section 79(1) of the Electricity (Supply) Act, 1948 (for short ‘the Act’). The earlier memorandum dated 02.04.1994 and the impugned memorandum dated 16.07.2002 are mere instruments of instructions issued by the Board for the guidance of the administration. Such administrative instructions cannot overreach or overawe the statutory regulations made by the Board in exercise of the powers under Section 79 of the Act, after following the substantive and procedural discipline ordained by Section 79 of the Act.
17. As has been eloquently stated by Justice Frankfurter in Vitarelli v. Seaton : (1959) 359 US 535 at pp.546-547
“An executive agency must be rigorously held to the standards by which it professes its action to be judged…Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.”
The above principle was followed in Sukhdeo Singh v. Bhagatram and in Ramana Dayaram Shetty v. The International Airport Authority of India and others. .
18. The Andhra Pradesh State Electricity Board and the second respondent are bound by the Regulations and they could not depart from those regulations in the conduct of their administrative affairs relating to the management of the services. If the Board of the second respondent is dissatisfied with the tenor, content, or thrust of Regulations, then the only legitimate course to deviate from the mandate of the Regulations is to amend the Regulations by following the substantive and procedural discipline ordained by Section 79 of the Act. No extant instrument has been brought to the notice of this Court by the learned Standing Counsel for the second respondent, which either expressly or by any compelling implication constitutes an amendment of the Regulations. A faint submission is made by Sri S.Ravindranath, that the first respondent has issued T.O.O. Ms. No. 251 dated 29.01.2001. Since T.O.O. Ms. No. 251 is claimed albeit hesitantly to be an amendment of Regulations, it is necessary to extract T.O.O. Ms. No. 251 in its entirety:
Transmission Corporation of A.P. Ltd., Vidyuthsoudha:: Hyderabad.
Abstract
Transco of A.P. Ltd., Counting of training period of probation, increment etc., for certain categories of posts in Engineering Service Accounts Service P & G Service and is O&M Establishment – Orders-Issued.
T.O.O.(GN (TR)-Per) Ms. No. 251Dated: 29.01.2001.
O R D E R :
The candidates who are appointed to certain categories of posts in Engineering Service Accounts Service P&G Service and in O&M Establishment are required to undergo training for certain period ranging from 8 months to 12 months during which the minimum of the time scale of the post to which they are appointed is being paid is stipend and as per the existing orders the training period shall not count for probation or increment etc.,
1.The Transmission Corporation of A.P., Ltd., after careful consideration of the matter hereby directs that:
(A) The appointee shall be eligible during the period of training for the initial pay of the post to which he is appointed with usual allowances admissible at the place of training.
(B) The period of training shall be counted for the purpose of probation increment leave and pension etc.,
(C) These orders shall come into force with effect from the date of issue of this order.
The candidates who are already appointed as Trainees in various categories of posts and presently under going training as on the date of issue of these orders shall be appointed to regular time scale and they shall be allowed the minimum of the time scale of post to which they are appointed as pay with usual allowances. The balance period of their training shall count for probation, increment leave and pension etc.
T.V.S.N. Prasad.
Joint Managing Director (Rev. & HRD.)
19. It is neither pleaded nor established before this Court that T.O.O. Ms. No. 251 has been published in the Gazette.
20. Section 79 of the Electricity (Supply) Act, 1948, reads as under:
S. 79. Power to make regulations:– (The Board may, by notification in the Official Gazette, make regulations) not inconsistent with this Act and the rules made there under to provide for all or any of the following matters, namely:–
(a) the administration of the funds and other property of the Board, and the maintenance of its accounts;
(b) the summoning and holding of meetings of the Board, the times and places at which such meetings shall be held, the conduct of business thereat and the number of members necessary to constitute a quorum;
(c) the duties of (officers and other employees) of the Board, and their salaries, allowances and other conditions of service;
(d) all matters necessary or expedient for regulating the operations of the Board under section 20;
(e) the making of advances to licensees by the Board under section 23 and the manner of repayment of such advances;
(f) the making of contributions by the Board under Section 24;
(g) the procedure to be followed by the Board in inviting, considering and accepting tenders;
(h) principles governing the fixing of Grid Tariffs;
(i) principles governing the making of arrangements with licensees under section 47;
(j) principles governing the supply of electricity by the Board to persons other than licensees under section 49;
(jj) expending sum not included in statement submitted under sub-section (1) or sub-section (5) of section 61, under sub-section (2) of section 62;)
(k) any other matter arising out of the Board’s functions under this Act for which it is necessary or expedient to make regulations;
Provided that regulations under clauses (a) ((d) and (jj) shall be made only with the previous approval of the State Government and regulations under clauses (h) and (i) shall be made with the concurrence of the Authority.
21. Apropos the provisions of Section 79 of the Act; notification by publication in the Official Gazette is mandatory for the making of regulations. Demonstrably T.O.O. Ms. No. 251 has not been notified by publication in the Gazette. On a true and fair interpretation of the contents of this instrument, the inference is excluded that this instrument was intended to amend the regulations. Neither are the specifications in Annexure IV, relating to the training period and non-counting of the training period for the purposes of probation and increments repealed by this instrument nor is it apparent that the instructions in this instrument are intended to supplant the seniority principles set out in Regulation 26. The phraseology employed in the instrument-dated 29.01.2001 is also consistent with the inference that this instrument was intended to be administrative instructions and not a regulation in the nature of a general rule. A subordinate rule or regulation becomes effective proprio vigore only on its publication vide Harla v. The State of Rajasthan, Crl. L.J. 1952 S.C. p. 54 in which Bose J, held:
“Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilized man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential.
In England the rule is that Acts of Parliament become law from the first moment of the day on which they receive the Royal assent, but Royal Proclamations only when actually published in the official Gazette. See footnote (a) to para.776 p.601 of Halsbury’s Laws of England (Hailsham edition) Vol.VI and 32 Halsbury’s Laws of England (Hailsham edition) p.150 note (r). But even there it was necessary to enact a special Act of Parliament to enable such proclamations to become law by publication in the Gazette though a Royal Proclamation is the highest kind of law, other than an Act of Parliament, known to the British Constitution; and even the publication in the London Gazette will not make the proclamation valid in Scotland nor will publication in the Edinburgh Gazette make it valid for England. It is clear therefore that the mere enacting or signing of a Royal Proclamation is not enough. There must be publication before it can become law, and in England the nature of the publication has to be prescribed by an Act of Parliament.
The Act of Parliament regulating this matter is the Crown Office Act of 1877 (40 and 41 Victoria Ch.41). That Act, in addition to making provision for publication in certain official Gazettes, also provides for the making of rules by Order in Council for the best means of making Proclamations known to the public. The British Parliament has therefore insisted in the Crown Office Act that not only must there be publication in the Gazette but in addition there must be other modes of publication, if an Order in Council so directs, so that the people at large may know what these special laws are. The Crown Office Act directs His Majesty in Council carefully to consider the best mode of making these laws known to the public and empowers that body to draw up rules for the same and embody them in an Order in Council. We take it that if these proclamations are not published strictly in accordance with the rules so drawn up, they will not be valid law.
The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargani, (1918) 1 K.B. 101: 87 L.J. K.B.122 that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917, does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgations and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be”
Apart from the general principle enunciated in Harla’s case (supra), Section 79 of the Act positively requires notification of the regulations in the official gazette. No such notification having been made of T.O.O. Ms. No. 251 dated 29.01.2001 it can not be considered to be a regulation, at any rate, it could not be inferred that the instructions contained therein impliedly overawe or supplant the statutory regulations, in particular Regulation 26 of the specifications contained in Annexure IV.
22. The contention urged on behalf of the respondents that the writ petition is barred by laches and delay, merits no acceptance. The question is whether the writ petition has been instituted belatedly after the cause of action has accrued to the petitioners. The petitioners, who belong to the category of Typists and respondents 4 to 8, who belong to the category of Junior Assistants/Lower Division Clerks, have both now come within the zone of consideration for promotions as Upper Division Clerks. The petitioners do not claim to have been earlier superseded by any persons belonging to the category of Junior Assistants. As they have now come within the zone of consideration and the consideration of the petitioners is likely to be prejudicially affected by the reckoning of respondents 4 to 8 as seniors to them on the basis of the impugned memorandum dated 16.07.2002, the cause of action for the petitioners, to challenge the memorandum dated 16.07.2002 had occurred now. In these circumstances, it cannot be gainfully contended that the writ petition is barred by laches and delay. The cause of action to challenge an instrument as unconstitutional, ultra vires or otherwise illegal accrues to an aggrieved person not on the date of the making of the instrument but, on the date or occurring of an event when such instrument adversely affects a person in any manner. Therefore, as the petitioners have, now, a cause of action to feel aggrieved by the instructions issued in the memorandum dated 16.07.2002, the writ petition cannot be said to be belated.
23. The date of entry into service in the category of Lower Division Clerks of respondents 4 to 8 have been recorded as 11.05.1991, 04.05.1991, 05.05.1991, 05.05.1991 and 04.05.1991 respectively, in the provisional seniority list L.D.Cs./L.D.C.(R.C.) as on 30.04.1993, appended to the memorandum dated 30.06.1993, issued by the Superintending Engineer (Operation), Karimnagar of the first respondent. It is axiomatic that in the absence of any compelling rule to the contra, the seniority of a person should count from the date of first entry into service. The petitioners’ date of entry into service as Typists are demonstrably earlier (in March and April, 1991) to such dates of entry into service of respondents 4 to 8. The petitioners, therefore, have to be treated as seniors to the respondents 4 to 8 in any integrated seniority list of Lower Division Clerks and Typists prepared for the purpose of considering these two feeder categories for promotion to Upper Division Clerks.!
The instructions of the Boards of the erstwhile A.P.S.E.B. or the current Northern Power Distribution Company of Andhra Pradesh Limited, dated 02.04.1994 or 16.07.2002 or even the instructions contained in T.O.O. Ms. No. 251, dated 29.01.2001, cannot override or subvert the clear trajectory of the statutory rules nor could these instructions eclipse the jurisdictional service facts of the petitioners and the respondents 4 to 8, which have been extant for nearly 15 years now. Resultantly, the respondents 4 to 8 will have to be reckoned as juniors to the petitioners while considering the petitioners and respondents 4 to 8 for promotion to the category of Upper Division Clerks.
24. It would have been in the fitness of things for the second respondent, to have prepared an integrated seniority list of Junior Assistants/Lower Division Clerks and Typists and Steno-Typists, as these are different categories, which are equally eligible for promotion to the next higher category of Upper Division Clerks by the method of promotion on a non-selection basis. Such administrative regularity of preparing an integrated seniority list would obviate regnal service disputes, which do not enure to administrative harmony. We hope and trust that the second respondent would sensitize itself to the merit of preparing such an integrated seniority list before proceeding to make promotions.
25. On the analysis above, the writ petition requires to be allowed. Accordingly, the Memo. No. CGM(HRD)GM(S)/AS(IR)/ 302-H1/02, dated 16.07.2002 issued by the second respondent is quashed. The respondents are directed to prepare an integrated seniority list of Lower Division Clerks/Junior Assistants, Typists and Steno-Typists and to arrange the persons belonging to these categories in an inter se order of seniority in accordance with their respective dates of regular entry into service. However on integration of these different categories, it shall be ensured that no L.D.C. who has entered regular service subsequent to a Typist or Steno-Typist is reckoned as senior to such a Typist or Steno-Typist. Promotions to the posts of Upper Division Clerks shall henceforth be in accordance with such integrated seniority list or seniority positions.
26. The Writ Petition is allowed as above. There shall be no order as to costs.