{"id":159063,"date":"2003-05-22T00:00:00","date_gmt":"2003-05-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/santosh-kumar-vs-state-of-andhra-pradesh-ors-on-22-may-2003"},"modified":"2018-02-06T19:06:46","modified_gmt":"2018-02-06T13:36:46","slug":"santosh-kumar-vs-state-of-andhra-pradesh-ors-on-22-may-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/santosh-kumar-vs-state-of-andhra-pradesh-ors-on-22-may-2003","title":{"rendered":"Santosh Kumar vs State Of Andhra Pradesh & Ors on 22 May, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Santosh Kumar vs State Of Andhra Pradesh & Ors on 22 May, 2003<\/div>\n
Author: S V Patil<\/div>\n
Bench: Shivaraj V. Patil, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (civil)  4917 of 2000\n\nPETITIONER:\nSantosh Kumar\t\t\t\t\t\t\n\n\nRESPONDENT:\nVs.\n\nState of Andhra Pradesh & Ors.\t\t\t\n\n\nDATE OF JUDGMENT: 22\/05\/2003\n\nBENCH:\nShivaraj V. Patil & Arijit Pasayat\t\n\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
SHIVARAJ V. PATIL J.\n<\/p>\n
\tThe Division Bench of the High Court by the common <\/p>\n
impugned order disposed of Writ Petition Nos. 34839, <\/p>\n
35775 of 1997 and 6758 of 1998.  This appeal is filed <\/p>\n
by the respondent No.4 in W.P. No. 35775\/97.  Some of <\/p>\n
the Head Constables including the respondent No. 4 <\/p>\n
herein (hereinafter referred to as ‘respondent’) in <\/p>\n
this appeal were appointed temporarily as out of <\/p>\n
seniority, Sub-Inspector (OSSI) w.e.f. 3.12.1983 <\/p>\n
without following recruitment rules.  The appellant was <\/p>\n
appointed as direct recruit on 12.9.1985.  Between 1996 <\/p>\n
and 1997, the Government of Andhra Pradesh issued <\/p>\n
various Government Orders relaxing relevant recruitment <\/p>\n
rules in favour of the respondent and others <\/p>\n
regularizing their services with effect from the date <\/p>\n
of their temporary appointments affecting the seniority <\/p>\n
of the appellant.  The appellant challenged the same <\/p>\n
before the A.P. Administrative Tribunal.  The Tribunal <\/p>\n
held that the State Government had power to relax the <\/p>\n
recruitment rules with retrospective effect but <\/p>\n
however, the Tribunal held that the services rendered <\/p>\n
by the respondent and other similarly placed persons <\/p>\n
could not be counted as officiating service for <\/p>\n
determining their seniority as their appointment was <\/p>\n
not in accordance with the rules and they had not <\/p>\n
qualified for appointment.  Aggrieved by the order of <\/p>\n
the Tribunal, the respondent and other promotees filed <\/p>\n
writ petitions before the High Court. The High Court, <\/p>\n
by the impugned order, allowed the writ petitions <\/p>\n
holding that the recruitment rules could be relaxed <\/p>\n
with retrospective effect.  The High Court also held <\/p>\n
that even if their initial appointment was not made by <\/p>\n
following the procedure laid down by the rules, they <\/p>\n
had continued in the post uninterruptedly till their <\/p>\n
services were regularized by relaxing the rules and so <\/p>\n
their officiating services had to be taken into account <\/p>\n
for the purpose of seniority.  Hence, this appeal is <\/p>\n
filed questioning the validity and correctness of the <\/p>\n
impugned order of the High Court.\n<\/p>\n
\tIt may be useful to notice few more facts.<\/p>\n
\tThe substantive posts of Sub-Inspectors of Police <\/p>\n
were calculated and apportioned between direct recruits <\/p>\n
and promotees in 1983.  According to the Special Rules, <\/p>\n
promotees could not exceed 30% of the cadre.   There <\/p>\n
were 200 vacancies out of which 65 were allotted to the <\/p>\n
promotees and 127 to direct recruitment.  The appellant <\/p>\n
and the other direct recruits were appointed on <\/p>\n
12.9.1985 after selection made by APPSC.  They <\/p>\n
underwent training and passed all the tests at the end <\/p>\n
of training.  The Government issued various orders in <\/p>\n
1996-97 relaxing the relevant recruitment rules in <\/p>\n
favour of the respondent and few others regularizing <\/p>\n
their services with effect from the date of their <\/p>\n
temporary appointment.  Pursuant to the said orders, <\/p>\n
the Commissioner of Police issued orders regularizing <\/p>\n
the services of the respondent and other respondents <\/p>\n
similarly placed with effect from the date of their <\/p>\n
temporary appointment. Under these circumstances, the <\/p>\n
appellant and other direct recruits filed O.As. before <\/p>\n
the A.P. Administrative Tribunal challenging the <\/p>\n
relaxation of the Rules and the consequential <\/p>\n
regularization of the services of the respondent and <\/p>\n
others.  The Tribunal partly allowed the O.As. holding <\/p>\n
that the Government were competent to relax the rules <\/p>\n
in exercise of the powers conferred under Rule 47 of <\/p>\n
the A.P. State & Subordinate Service Rules, 1962 (for <\/p>\n
brevity `General Rules) relating to service conditions <\/p>\n
with retrospective effect.  However, by referring to <\/p>\n
the various decisions of this Court, the Tribunal took <\/p>\n
the view that the services rendered by the respondent <\/p>\n
and other OSSIs could not be counted as officiating <\/p>\n
service for determining their seniority as their <\/p>\n
appointments were not in accordance with the rules, <\/p>\n
they were not qualified for the appointment and that <\/p>\n
retrospective regularization of their services <\/p>\n
adversely affected the interest of the appellant and <\/p>\n
others who were regularly appointed as direct recruits.  <\/p>\n
In the view it took, the Tribunal held that the <\/p>\n
impugned orders, to the extent they affected the <\/p>\n
seniority of the appellant and others, were invalid.  <\/p>\n
The respondent and other promotee OSSIs filed writ <\/p>\n
petitions before the High court against that part of <\/p>\n
the order of the Tribunal.\n<\/p>\n
\tAs already noticed above, the High Court allowed <\/p>\n
the writ petitions holding that the recruitment rules <\/p>\n
relating to the conditions of service could be relaxed <\/p>\n
with retrospective effect and even if their initial <\/p>\n
appointments were not made by following the procedure <\/p>\n
laid down by the rules, the officiating services of the <\/p>\n
promotees could be counted for the purposes of <\/p>\n
seniority as they continued in the post uninterruptedly <\/p>\n
till the regularization of their services.<\/p>\n
\tShri L.Nageshwara Rao, the learned Senior Counsel <\/p>\n
on behalf of the appellant urged that it was not <\/p>\n
permissible to relax the basic recruitment rules with <\/p>\n
retrospective effect; a person who was not appointed in <\/p>\n
accordance with the rules, was not entitled to <\/p>\n
seniority from the date of his temporary appointment.  <\/p>\n
According to him, even if appointment could be made as <\/p>\n
OSSIs from Head Constables by relaxing the rules <\/p>\n
relating to qualification etc., such relaxation could <\/p>\n
not affect the seniority of the direct recruits who <\/p>\n
were appointed on regular basis after selection by <\/p>\n
APPSC.  He took us through various rules and Government <\/p>\n
Orders in support of his submissions.<\/p>\n
\tOn the other hand, Shri M.N.Rao, the learned <\/p>\n
Senior Counsel for the respondent made submissions <\/p>\n
supporting the impugned judgment and justifying the <\/p>\n
reasons recorded in the judgment in allowing the writ <\/p>\n
petitions.  According to learned Senior Counsel, the <\/p>\n
State Government had powers to relax the rules with <\/p>\n
retrospective effect.  Learned counsel for the State <\/p>\n
while adopting the arguments of Shri M.N.Rao supported <\/p>\n
the impugned order.\n<\/p>\n
\tWe have carefully considered the submissions made <\/p>\n
on either side.  Before the Tribunal it was conceded <\/p>\n
that the Government have power to relax rules under <\/p>\n
Rule 47 of the General Rules, but, however, it was <\/p>\n
contended that the basic rules of recruitment i.e. A.P. <\/p>\n
Police Subordinate Service Rules (for short `Service <\/p>\n
Rules’) could not be relaxed in exercise of the power <\/p>\n
under the said Rule.  Having regard to the facts of the <\/p>\n
case on hand, relevant Rules and law laid down by this <\/p>\n
Court the Tribunal concluded that there was no <\/p>\n
relaxation of basic qualifications but there was only <\/p>\n
relaxation of the conditions of service in the case of <\/p>\n
the respondent in regularizing the services with <\/p>\n
retrospective effect as Sub-Inspector.  In paragraph 21 <\/p>\n
of the judgment the Tribunal stated that it is well-<\/p>\n
settled law that the Government in exercise of powers <\/p>\n
conferred on them under Rule 47 of the General Rules <\/p>\n
can relax the rules of appointment and such relaxation <\/p>\n
could be with retrospective effect.  Reference was also <\/p>\n
made to the case of this Court in M. Venkateshwarlu and <\/p>\n
others vs. Government of A.P. and others [(1996) 5 SCC <\/p>\n
167] holding that Rule 47 ex facie does not contemplate <\/p>\n
any notice being given in case of relaxation of <\/p>\n
eligibility of a single individual for promotion to the <\/p>\n
post of Deputy Tehsildar; it was not necessary to issue <\/p>\n
a notice to all affected parties in such a case.  <\/p>\n
However, the Tribunal held that as the appointment of <\/p>\n
the respondent and others as OSSIs was not in <\/p>\n
accordance with the Rules and their appointments were <\/p>\n
not made after considering the case of other eligible <\/p>\n
persons as per Service Rules, their services could not <\/p>\n
be taken into consideration while determining the <\/p>\n
seniority in the cadre of Sub-Inspectors.  Finally, the <\/p>\n
Tribunal concluded that the unofficial respondents in <\/p>\n
the O.As. could claim to be regularly appointed as Sub-<\/p>\n
Inspectors only from the dates on which the Government <\/p>\n
have issued orders relaxing the service rules; any <\/p>\n
notional dates of relaxation given to them affecting <\/p>\n
the seniority of regularly appointed Sub-Inspectors <\/p>\n
prior to the date of relaxation of Rules could not be <\/p>\n
held valid. In other words, the Tribunal held that the <\/p>\n
Government have power to relax the Rules with <\/p>\n
retrospective effect for the purpose of appointment and <\/p>\n
promotion but the seniority could not be assigned to <\/p>\n
them prior to the date of regularization of services <\/p>\n
affecting the seniority of others, who are regularly <\/p>\n
appointed prior to date of their regularization.  In <\/p>\n
our view, the Tribunal was not right in saying that any <\/p>\n
notional date of relaxation was given to the respondent <\/p>\n
affecting the seniority of the appellant.  In fact, <\/p>\n
service of the respondent was regularized from the <\/p>\n
actual date on which he was temporarily promoted as <\/p>\n
OSSI which was permissible in terms of para 47(B) of <\/p>\n
the Constitution Bench judgment of this Court in <\/p>\n
Recruit Class II Engineering Officers’ Association vs. <\/p>\n
State of Maharashtra and others<\/a> [(1990) 2 SCC 715].  <\/p>\n
Moreover, the promotion given to the respondent was in <\/p>\n
promotee quota which did not affect the appellant who <\/p>\n
was recruited later as a direct recruit.  It may be <\/p>\n
mentioned that there was no direct recruitment in the <\/p>\n
year 1983-84 to the post of Sub-Inspector when services <\/p>\n
of the respondent and others were regularized.  The <\/p>\n
appellant was recruited in the year 1985 i.e. <\/p>\n
subsequent to the date on which the respondent started <\/p>\n
working actually as OSSI though temporarily.  In this <\/p>\n
view, the question of affecting the seniority of the <\/p>\n
appellant without notice did not arise.<\/p>\n
\tWe may state here itself that the Tribunal did not <\/p>\n
record a finding whether the services of the unofficial <\/p>\n
respondents were regularized as against the vacancies <\/p>\n
meant for promotees or not.\n<\/p>\n
\tThe High Court in para 7 of the judgment has <\/p>\n
recorded a clear finding that the services of the <\/p>\n
respondent and others were regularized in respect of <\/p>\n
the vacancies available in the quota meant for the <\/p>\n
promotees after observing, thus: –\n<\/p>\n
“7.\tThere is another aspect on which <\/p>\n
no arguments were addressed across the <\/p>\n
Bar and learned Tribunal has also not <\/p>\n
recorded any finding.  In these cases, <\/p>\n
the petitioners herein made a specific <\/p>\n
assertion that the regularization of <\/p>\n
their services with effect from their <\/p>\n
initial date of temporary appointment <\/p>\n
was done within the 30% quota allocated <\/p>\n
to the promotees.  There is no specific <\/p>\n
denial of this fact in the counter <\/p>\n
affidavit filed by the non-official <\/p>\n
respondents herein before the Tribunal <\/p>\n
though an attempt was made to show that <\/p>\n
when the petitioners herein were <\/p>\n
promoted there were no vacancies <\/p>\n
available within the quota of the <\/p>\n
promotees and that those appointments <\/p>\n
were made in the vacancies meant for <\/p>\n
direct recruits as there was some delay <\/p>\n
in finalization of the appointments by <\/p>\n
direct recruits.  But there is no <\/p>\n
specific assertion that as on their date <\/p>\n
of appointment, vacancies in the <\/p>\n
promotees quota were not available for <\/p>\n
the purpose of regularizing the services <\/p>\n
of the petitioners herein.  In fact, on <\/p>\n
behalf of the Government respondent No. <\/p>\n
1 the Assistant Secretary, Home filed an <\/p>\n
additional counter affidavit in the <\/p>\n
Tribunal specifically supporting the <\/p>\n
contention of the petitioners herein <\/p>\n
that the regularization of their <\/p>\n
services was made in respect of <\/p>\n
vacancies available out of the quota of <\/p>\n
the promotees.  The Tribunal has not <\/p>\n
recorded any finding on this aspect.  <\/p>\n
This question was not addressed in this <\/p>\n
Court by the learned counsel for the <\/p>\n
unofficial respondents herein.  For the <\/p>\n
purpose of these writ petitions and in <\/p>\n
the absence of any clinching material, <\/p>\n
the statement made in the affidavit <\/p>\n
filed on behalf of the Government has to <\/p>\n
be accepted and it must be presumed that <\/p>\n
the regularization directed to be <\/p>\n
effected under the impugned G.Os. was in <\/p>\n
respect of the vacancies available in <\/p>\n
the quota meant for the promotees.”\n<\/p>\n
Some arguments were advanced before us to contend that <\/p>\n
the regularization of services of the respondent and <\/p>\n
others was not against the quota meant for promotees.  <\/p>\n
In view of what is stated in paragraph 7 of the <\/p>\n
impugned judgment, extracted above, and, particularly, <\/p>\n
when no argument was advanced before the High Court in <\/p>\n
this regard, it is not possible to accept the <\/p>\n
contention put forth on behalf of the appellant <\/p>\n
disputing the position that the regularization of <\/p>\n
services of the respondent was against the quota meant <\/p>\n
for promotees.\n<\/p>\n
 \tRule 47 of the General Rules and corresponding new <\/p>\n
Rule 31 of 1996 Rules read: –\n<\/p>\n
“47. Relaxation of Rules by the <\/p>\n
Governor.  No rule made under the <\/p>\n
proviso to Article 309 of the <\/p>\n
Constitution of India or contained under <\/p>\n
Article 313 of that Constitution shall <\/p>\n
be construed to limit or abridge the <\/p>\n
power of the Governor to deal with the <\/p>\n
case of any class or category of persons <\/p>\n
for being appointed to any civil post, <\/p>\n
or of any person who is serving or has <\/p>\n
served in a civil capacity under the <\/p>\n
Government of Andhra Pradesh in such <\/p>\n
manner as may appear to him to be just <\/p>\n
and equitable:\n<\/p>\n
\tProvided that, where any such rule is <\/p>\n
applicable to the case of any person or <\/p>\n
a class of persons, the cases shall not <\/p>\n
be dealt with in any manner less <\/p>\n
favourable to the person or class of <\/p>\n
persons than that provided by that <\/p>\n
rule.”\n<\/p>\n
“31. Relaxation of Rules by the <\/p>\n
Governor.  Notwithstanding anything <\/p>\n
contained in these rules or in the <\/p>\n
special rules, the Governor shall have <\/p>\n
the power to relax any rules contained <\/p>\n
in these rules or Special Rules, in  <\/p>\n
favour of any person or class of <\/p>\n
persons, in relaxation to their <\/p>\n
application to any member of a service <\/p>\n
or to any person to be appointed to the <\/p>\n
service, class or category or a person <\/p>\n
or a class of persons, who have served <\/p>\n
in any civil capacity in the Government <\/p>\n
of Andhra Pradesh in such manner as may <\/p>\n
appear to be just and equitable to him, <\/p>\n
where such relaxation is considered <\/p>\n
necessary in the public interest or <\/p>\n
where the application of such rule or <\/p>\n
rules is likely to cause undue hardship <\/p>\n
to the person or class of persons <\/p>\n
concerned.”\n<\/p>\n
Based on the language and content of Rule 47 of General <\/p>\n
Rules and in the light of the decisions of this Court <\/p>\n
the Tribunal as well as the High Court have firmly <\/p>\n
concluded that the State Government have power to grant <\/p>\n
relaxation of Rules with retrospective effect.  <\/p>\n
A Constitution Bench of this Court in Direct <\/p>\n
Recruit Class II Engineering Officers’ Association`s <\/p>\n
case (supra), after considering various aspects and <\/p>\n
earlier decisions, summed up the conclusions in <\/p>\n
paragraph 47 of the judgment.  For our purpose paras <\/p>\n
(A) and (B) of the said paragraph are relevant, which <\/p>\n
are extracted hereunder: –\n<\/p>\n
“47.\tTo sum up, we hold that:\n<\/p>\n
(A)\tOnce an incumbent is appointed to a <\/p>\n
post according to rule, his <\/p>\n
seniority has to be counted from <\/p>\n
the date of his appointment and not <\/p>\n
according to the date of his <\/p>\n
confirmation.\n<\/p>\n
\tThe corollary of the above rule is <\/p>\n
that where the initial appointment <\/p>\n
is only ad hoc and not according to <\/p>\n
rules and made as a stop-gap <\/p>\n
arrangement, the officiation in <\/p>\n
such post cannot be taken into <\/p>\n
account for considering the <\/p>\n
seniority.\n<\/p>\n
(B)\tIf the initial appointment is not <\/p>\n
made by following the procedure <\/p>\n
laid down by the rules but the <\/p>\n
appointee continues in the post <\/p>\n
uninterruptedly till the <\/p>\n
regularization of his service in <\/p>\n
accordance with the rules, the <\/p>\n
period of officiating service will <\/p>\n
be counted.”\n<\/p>\n
The respondent and others were appointed as Sub-<\/p>\n
Inspectors out of seniority looking to the outstanding <\/p>\n
merit and record prior to the direct recruits like the <\/p>\n
appellant.  Their services were admittedly regularized <\/p>\n
by relaxing the Service Rules in exercise of power <\/p>\n
available under Rule 47 of the General Rules.  The <\/p>\n
appellant did not challenge the validity of Rule 47 and <\/p>\n
no malafides were established against the authorities <\/p>\n
in exercise of powers of relaxation under the said <\/p>\n
Rule.  The Tribunal has recorded a finding that the <\/p>\n
rule relating to the method of recruitment was not <\/p>\n
relaxed but only the conditions which had to be <\/p>\n
fulfilled for the purpose of promotion to the category <\/p>\n
of Sub-Inspector were relaxed; this finding is not <\/p>\n
disturbed by the High Court; there was no relaxation as <\/p>\n
to the basic qualification; the State Government <\/p>\n
regularized the services of the respondent and others <\/p>\n
with retrospective effect from the date they were <\/p>\n
temporarily appointed as Sub-Inspectors (OSSIs).   It <\/p>\n
is also not disputed that they continued in service <\/p>\n
uninterruptedly for about 12-13 years till their <\/p>\n
services were regularized with retrospective effect.  <\/p>\n
This being the factual position it could not be said <\/p>\n
that the corollary to paragraph 47(A) of the <\/p>\n
aforementioned Constitution Bench judgment applies to <\/p>\n
the facts of the present case.  Once their services <\/p>\n
were regularized it cannot be contended that their <\/p>\n
initial appointment was only on ad hoc basis and not <\/p>\n
according to the Rules and made as a stop-gap <\/p>\n
arrangement.  On the other hand paragraph 47(B) <\/p>\n
supports the case of the respondent.<\/p>\n
\tThis Court had occasion to consider the power of <\/p>\n
Government to relax the service rules under Rule 47 of <\/p>\n
General Rules in Government of Andhra Pradesh and <\/p>\n
others vs. Sri D. Janardhana Rao and<\/a> another [(1976) 4 <\/p>\n
SCC 276].  In that case a panel of Deputy Tehsildars <\/p>\n
for promotion to the cadre of Tehsildars was prepared.  <\/p>\n
The rules at the relevant point of time required that <\/p>\n
for including in the panel for promotion as Tehsildars, <\/p>\n
the Deputy Tehsildars had to satisfy certain <\/p>\n
qualifications including that as Deputy Tehsildars they <\/p>\n
should have exercised Magisterial powers.  Taking note <\/p>\n
of the historical reasons, the Government considered it <\/p>\n
unfair to exclude the Deputy Tehsildars from Telangana <\/p>\n
area of Andhra Pradesh for inclusion in the panel for <\/p>\n
promotion as Tehsildars.  Hence exercising power under <\/p>\n
Rule 47 the Government granted relaxation and the <\/p>\n
Deputy Tehsildars coming from Telangana area were <\/p>\n
included in the panel for promotion as Tehsildars.  <\/p>\n
When there was challenge to the power of the Government <\/p>\n
to relax the conditions of service under Rule 47, this <\/p>\n
Court expressed the view that Rule 47 of the General <\/p>\n
Rules gives power to the Governor to relax the rigour <\/p>\n
of the General Rules in such manner as may appear to be <\/p>\n
just and equitable.  The Court went on to say: –<\/p>\n
“It is not difficult to see that the <\/p>\n
occasion for acting under Rule 47 may <\/p>\n
well arise after the attention of the <\/p>\n
Govt. is drawn to a case where there has <\/p>\n
been a failure of justice.  In such <\/p>\n
cases justice can be done only by <\/p>\n
exercising the power under R. 47 with <\/p>\n
retrospective effect, otherwise the <\/p>\n
object and purpose of the rule will be <\/p>\n
largely frustrated.”\n<\/p>\n
(Emphasis supplied)<\/p>\n
In the same judgment the contention that relaxation can <\/p>\n
be made under Rule 47 prospectively and not <\/p>\n
retrospectively was rejected by this Court.<\/p>\n
\tThis Court yet again in M. Venkateshwarlu and <\/p>\n
others vs. Government of A.P. and others [(1996) 5 SCC <\/p>\n
167], held that under Rule 47 the Governor is empowered <\/p>\n
to relax the rigour of the General Rules in such manner <\/p>\n
as may appear to him to be just and equitable <\/p>\n
retrospectively also.  In that case the appellant was <\/p>\n
promoted as Deputy Tehsildar on 20.6.1984.  The panel <\/p>\n
effective from 1.7.1983 for regular promotion was to be <\/p>\n
drawn for the year 1983-84; he had not completed the <\/p>\n
requisite length of service postulated by Rule 8(ii) of <\/p>\n
the A.P. Revenue Subordinate Service Rules, 1961 <\/p>\n
(Special Rules), for regular promotion as Deputy <\/p>\n
Tehsildar.  He requested for relaxation under Rule 47 <\/p>\n
of the Rules.  The State Government relaxed the <\/p>\n
shortfall and empanelled him for the year 1983-84 <\/p>\n
instead of 1987-88 and accordingly he was promoted on <\/p>\n
regular basis.  This relaxation given to the appellant <\/p>\n
was assailed.  Dealing with the question, in paragraph <\/p>\n
8, this Court observed: –\n<\/p>\n
“8.\tThus it could be seen that the <\/p>\n
Governor is empowered to relax the <\/p>\n
rigour of the General Rules in such <\/p>\n
manner as may appear to him to be just <\/p>\n
and equitable in the interest of justice <\/p>\n
and equity.  Justice can be done only by <\/p>\n
exercising the power retrospectively.  <\/p>\n
Otherwise, the object and purpose of <\/p>\n
Rule 47 will be largely frustrated.  The <\/p>\n
finding of the Full Bench of the <\/p>\n
Tribunal that Rule 47 cannot be <\/p>\n
exercised retrospectively is, therefore, <\/p>\n
clearly illegal.”\n<\/p>\n
(Emphasis supplied)<\/p>\n
In that judgment another question was also considered <\/p>\n
whether giving of notice to the persons likely to be <\/p>\n
affected was necessary before exercising the power of <\/p>\n
relaxation under Rule 47.  In paragraph 11 of the <\/p>\n
judgment in regard to the same question it is stated, <\/p>\n
thus:-\n<\/p>\n
“11.\tThe question then is: whether <\/p>\n
notice to all the persons who are likely <\/p>\n
to be affected is required before <\/p>\n
exercising the power under Rule 47?  The <\/p>\n
rule ex facie does not contemplate any <\/p>\n
notice being given.  It is not a case of <\/p>\n
considering inter se claim of any <\/p>\n
particular individuals.  It is a case of <\/p>\n
relaxing the eligibility of a single <\/p>\n
individual as against many.  Under these <\/p>\n
circumstances, we do not think that the <\/p>\n
rule envisages notice to all the <\/p>\n
affected persons.”\n<\/p>\n
At any rate, in the present case not giving notice to <\/p>\n
the appellant before relaxation was given to the <\/p>\n
respondent was immaterial as promotion was given to the <\/p>\n
respondent in promotee quota, as already stated above.<\/p>\n
\tThe facts of the case in Desoola Rama Rao and <\/p>\n
another vs. State of Andhra Pradesh and others [1988 <\/p>\n
(Supp.) SCC 221] were almost similar to the facts of <\/p>\n
the case with which we are dealing.  In that case <\/p>\n
respondents 3 and 4 were temporarily appointed as <\/p>\n
Assistant Engineers on 14.8.1959 and 19.5.1960 <\/p>\n
respectively before the appellants were recruited as <\/p>\n
Assistant Engineers.  In exercise of powers under Rule <\/p>\n
22(a) of the General Rules, the services of respondents <\/p>\n
had been regularized retrospectively with effect from <\/p>\n
19.5.1961 by the Chief Engineer by order dated <\/p>\n
3.5.1967.  In paragraph 4 of the said judgment this <\/p>\n
Court observed that the regularization of services of <\/p>\n
respondents 3 and 4 as directed to take effect, is not <\/p>\n
anterior to their appointment as Assistant Engineers, <\/p>\n
the regularization cannot be said to have been vitiated <\/p>\n
on account of arbitrariness.  From this judgment it <\/p>\n
follows that the power of relaxation can be exercised <\/p>\n
retrospectively and it can be exercised for the <\/p>\n
specific purpose of regularization of services of a <\/p>\n
temporary appointee with retrospective effect from the <\/p>\n
date of his appointment under Rule 10(a) of the A.P. <\/p>\n
General Rules.\n<\/p>\n
\tYet, another decision of this Court in P.V.T. <\/p>\n
Phillip vs. P. Narasimha Reddy and others<\/a> [1993 Supp. <\/p>\n
(3) SCC 438] supports the case of the respondent to the <\/p>\n
effect that power to relax under Rule 47 can be <\/p>\n
exercised with retrospective effect wherever required <\/p>\n
in the interest of justice and equity.<\/p>\n
\tIn the case on hand the appointment of the <\/p>\n
respondent made under Rule 10(a)(i)(I) was regularized <\/p>\n
by relaxing the relevant service rules and the Standing <\/p>\n
Order No. 107 of Andhra Pradesh Police Manual Part I by <\/p>\n
exercising the powers under Rule 47 of General Rules.  <\/p>\n
The Government, as observed by the High Court, for good <\/p>\n
reasons have chosen to regularize the services of the <\/p>\n
respondent with effect from the date of temporary <\/p>\n
promotion as Sub-Inspector in recognition and providing <\/p>\n
incentive for merit and in public interest.  The High <\/p>\n
Court also noticed that the respondents were given out <\/p>\n
of seniority promotions on the basis of their <\/p>\n
individual extraordinary services and merit.  The High <\/p>\n
Court found fault with the observations made by the <\/p>\n
Tribunal that the appointment of the respondent was not <\/p>\n
in accordance with the rules and that his appointment <\/p>\n
was not made after considering the case of all other <\/p>\n
eligible persons as per the Rules and as such their <\/p>\n
services could not be counted for seniority in the <\/p>\n
cadre of Sub-Inspectors from the date of their <\/p>\n
temporary appointment.  The High Court observed that <\/p>\n
the question of considering the case of every eligible <\/p>\n
person along with them would scarcely arise as in such <\/p>\n
cases, it is only a particular individual based on his <\/p>\n
notable performance and merit would be picked up for <\/p>\n
out of seniority promotion as has been done in this <\/p>\n
case.  The High Court also noted that the General Rules <\/p>\n
provided for ad hoc appointment under Rule 10(a)(i)(1) <\/p>\n
of the General Rules and in this case there is a <\/p>\n
provision for appointment by promotion and that is how <\/p>\n
the respondent had been promoted.  In regard to giving <\/p>\n
of notice to the persons likely to be affected before <\/p>\n
exercise of power to relaxation under Rule 47, the High <\/p>\n
Court in paragraph 22 of the impugned judgment <\/p>\n
observed: –\n<\/p>\n
“22.\tThe only other contention which <\/p>\n
needs mention is that at any rate the <\/p>\n
impugned orders of the Government would <\/p>\n
not affect the interests (seniority) of <\/p>\n
the un-official respondents inasmuch as <\/p>\n
no notice has been given to them before <\/p>\n
the Government passed the impugned <\/p>\n
orders.  It may be mentioned here, the <\/p>\n
impugned orders do not relate to fixing <\/p>\n
the inter se seniority within the cadre <\/p>\n
of Sub-Inspectors.  The petitioners <\/p>\n
herein were promoted in their individual <\/p>\n
cases based on their exceptional merit <\/p>\n
and performance.  If regularization of <\/p>\n
their services by relaxing the rules <\/p>\n
under Rule 47 of the A.P. General Rules <\/p>\n
happens to affect the seniority of <\/p>\n
others, this itself does not support the <\/p>\n
contention that the impugned orders <\/p>\n
could not have been passed without prior <\/p>\n
notice to the un-official respondents <\/p>\n
and others.  Further, Rule 47 of the <\/p>\n
General Rules does not contemplate <\/p>\n
issuance of notice before the power is <\/p>\n
exercised it.  The Supreme Court in the <\/p>\n
case of M. Venkateswarlu (supra) has <\/p>\n
held that Rule 47 ex facie does not <\/p>\n
contemplate any notice.  It was also <\/p>\n
observed that it was not a case to <\/p>\n
consider inter se claims of any <\/p>\n
particular individual and that it was a <\/p>\n
case of relaxing the eligibility <\/p>\n
requirement of a single individual as <\/p>\n
against many.  In these circumstances, <\/p>\n
it was held that no notice was <\/p>\n
required.”\n<\/p>\n
\tAnother important factor to be kept in mind is <\/p>\n
that a finding is recorded by the High Court that the <\/p>\n
promotion given to the respondent to the post of Sub-<\/p>\n
Inspector was against the vacancies meant for the quota <\/p>\n
of promotees.  The respondent was admittedly promoted <\/p>\n
on temporary basis as OSSI prior to the recruitment of <\/p>\n
the appellant.  Once his services were regularized that <\/p>\n
too in the promotee quota, the appellant being direct <\/p>\n
recruit cannot make any grievance.  In this view it <\/p>\n
cannot be said that the appellant was an affected <\/p>\n
person for want of notice before passing the order of <\/p>\n
relaxation to question the seniority of the respondent.<\/p>\n
\tThe decisions cited on behalf of the appellant, <\/p>\n
according to the High Court, did not support the case <\/p>\n
of the appellant having regard to the facts of those <\/p>\n
cases and rightly so in our view.  That apart, in the <\/p>\n
light of the direct decisions of this Court dealing <\/p>\n
with Rule 47 of the General Rules the High Court was <\/p>\n
right in following them in the impugned order.<\/p>\n
\tThe case of N.K. Durga Devi vs. Commissioner of <\/p>\n
Commercial Taxe, Hyderabad and others<\/a> [(1997) 11 SCC <\/p>\n
91] also does not help the appellant for three reasons <\/p>\n
(1) it is on the facts of that case, (2) as can be seen <\/p>\n
from paragraph 3 of the judgment, the order was made on <\/p>\n
the basis of concession made by the learned counsel <\/p>\n
that the relaxation could not have been validly passed <\/p>\n
without giving notice to all the affected parties since <\/p>\n
that would be in violation of principles of natural <\/p>\n
justice, and (3) respondent was promoted as OSSI in <\/p>\n
promotee quota and not against quota meant for direct <\/p>\n
recruits to which category the appellant belonged.<\/p>\n
\tThus viewed from any angle we do not find any good <\/p>\n
reason or valid ground to interfere with the impugned <\/p>\n
judgment.  Hence, finding no merit in this appeal it is <\/p>\n
dismissed.  No costs.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Santosh Kumar vs State Of Andhra Pradesh & Ors on 22 May, 2003 Author: S V Patil Bench: Shivaraj V. Patil, Arijit Pasayat 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-159063","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSantosh Kumar vs State Of Andhra Pradesh & Ors on 22 May, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/santosh-kumar-vs-state-of-andhra-pradesh-ors-on-22-may-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Santosh Kumar vs State Of Andhra Pradesh & Ors on 22 May, 2003 - 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