CASE NO.: Appeal (civil) 4917 of 2000 PETITIONER: Santosh Kumar RESPONDENT: Vs. State of Andhra Pradesh & Ors. DATE OF JUDGMENT: 22/05/2003 BENCH: Shivaraj V. Patil & Arijit Pasayat JUDGMENT:
J U D G M E N T
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.