IMPORTANT POINTS
1. Rule 22 of the A.P. State Subordinate Service Rules is applicable to appointment by promotion or transfer.
2. Rule 47 of the A.P. State Subordinate Service Rules can be exerecised retrospectively.

Headnote:(i) Service Law-A.P. State Subordinate Service Rules-Rule 22(ii)(e) to (g)-A.P. Revenue Subordinate Service Rules -Appointment by promotion or transfer-Applicability of Rule 22-Whether Rule 22(ii)(e) to (g) would be applicable to appointment by promotion or transfer ?-(Yes)-Appointment by promotion or by transfer is available to carry forward vacancies in post of Dy. Tehsildar-(Article 16(4A) of the Constitution introduced by the Constitution (77th Amendment) Act, 1995 w.e.f. 17.6.1995) - (G. Sethumadhava s case : 1996(2) Supreme 67 : Relied on).
       Held : The rule of reservation by promotion is consistent with Articles 14 and 16(1) and (4) to provide equality of opportunity to the Scheduled Castes and Scheduled Tribes. Rule 22(ii) of the General Rules is quite wide enough to bring within its ambit the appointment by promotion or transfer. The object of carry forward is to avoid lapse of the posts when persons qualified and eligible for appointment by promotion were not available. It is settled law that recruitment consists of three modes - direct recruitment, promotion and by transfer - defined under the General Rules. (Para 4)
       Further held : The finding of the Full Bench, therefore, that Rule 22 of the General Rule does not apply to appointment by promotion or transfer is clearly inconsistent with Rule 22(ii) which envisages appointments "otherwise than by direct recruitment". Therefore, we hold that appointment by promotion or by transfer is available to carry forward vacancies in the post of Dy. Tehsildar. (Para 5)
       (ii) Service Law-A.P. State Subordinate Service Rules-Rule 47-A.P. Revenue Subordinate Service Rules-Rule 8(ii)-Retrospective relaxation under Rule 47-Whether illegal ?-(No).
       Held 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 the 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. (Para 7)
       (iii) Service Law-A.P. State Subordinate Service Rules-Rule 47-A.P. Revenue Subordinate Service Rules-Rule 8(ii)-Promotion as Dy. Tehsildar-Non-availability of qualified candidates-Huge backlog of reserved vacancies on account of non-availability of Scheduled Castes/Scheduled Tribes candidate-Relaxation of prescribed period of service under Rule 8(ii)-Appellant had passed all prescribed tests within time-He fell short of five months service for purpose of two years as Senior Assistant and of one year and five months for total service of eight years in Revenue Department-Exercise of power under Rule 47 by condoning-deficiency of requisite length of service-Justified.
       Held : It is settled law that the Government cannot relax the basic qualifications but in an individual case they can relax, in an appropriate case, the conditions of service. It is seen that the appellant having passed all the tests, he was required to fulfil the condition of total service of eight years and minimum service of two years as Senior Assistant. Therefore, with a view of fill up the backlog vacancies which, as rightly pointed out by Shri P.P. Rao, undisputably is a constitutional obligation, the Government appears to have exercised the power under Rule 47 by condoning the deficiency of requisite length of service though no specific finding in that behalf was recorded. The test of justice and equity envisaged in Rule 47 is to be understood in this background. Relaxation may be given to a class of persons or an individual. (Para 9)
       (iv) Service Law-A.P. State Subordinate Service Rules-Rule 47-Exercise of power under Rule 47-Whether notice to all persons who are likely to be affected is required before exercising power ?-(No)
       Held : 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. It is true that in the cadre of Senior Assistant, the respondents were seniors to the appellant. But by operation of Rule 22 read with Articles 16(1), 16(4) and 16(4A), the appellant by promotion as reserved candidate would steal a march over his seniors in the lower cadre and would become senior as Deputy Tehsildar. (Para 10) Further held : By operation of protective discrimination, a junior officer belonging to Scheduled Castes or Scheduled Tribes, by operation of Article 16(1) read with Articles 16(4) and 16(4A) would steal a march over his erstwhile seniors in the lower cadre and get promotion. Thereby, the appellant becomes senior in the promotional post, namely, Deputy Tehsildar. By operation of Rule 33(a) of the General Rules, his seniority would be determined with reference to the date on which he discherged the duties in the post of Deputy Tehsildar. The consequence is inevitable due to application of Rule 22 of the General Rules read with Rule 6 of the Special Rules. Therefore, it is not necessary to give any notice to all the affected parties before exercising the power under Rule 47 of the General Rules. (Para 11)

JUDGMENT

K. Ramaswamy, J.-Leave granted.

C.A. No. 4415 of 1996 (@ SLP (C) No. 13653/94) :

Appellant was appointed as L.D.C. on January 21, 1975 in the Revenue Establishment of Prakasam District in A.P. He was

promoted as a U.D.C. (Senior Assistant) in 1982 and as a Dy. Tehsildar on June 20, 1984. The panel effective from July 1, 1983 for regular promotion was to be drawn for the year 1983-84. At that time he was short of one year and three months for purpose of total service of eight years; and of five months for purpose of period of two years as Senior Assistant for regular promotion as a Dy. Tehsildar. His name was recommended for consideration of promotion for the year 1986-87. He made a representation in August 1990 to the Government to relax Rule 8(ii) of the A.P. Revenue Subordinate Service Rule (for short, Special Rules ) to empanel him for the year 1983-84. The District Collector and the Commissioner, Land Revenue recommended for the relaxation. The Government exercising the power under Rule 47 of the A.P. State Subordinate Service Rules (for short, General Rules ) issued the orders in G.O.M.S. No. 792, Revenue (SER.III) Department, dated 28.7.92 relaxing shorfall in the required service and by proceedings dated December 1, 1992, the Government expaneled him for the year 1983-84 instead of 1987-88 and he was accordingly promoted on regular basis. The respondents came to challenge the relaxation given to him for the year 1983-84. When the O.A. had come up for final hearing, the Division Bench by its order dated October 26, 1993 had held that by operation of Rule 22 of the General Rules read with Rule 6 of the Special Rules, the appointment by transfer or promotion is available and that appellant was entitled to promotion as Dy. Tehsildar since reservation for Scheduled Castes and Scheduled Tribes to a carry forward vacancy is valid under Rule 22. However, since it was found that there were conflicting decisions on application of Rule 22 of the General Rules to the carry forward vacancies, reference was made to the Full Bench. The Full Bench by majority in the impugned order dated April 7, 1994 has held that Rule 22 of the General Rules does not apply to carry forward vacancies for appointment by promotion or transfer. Retrospective relaxation under Rule 47 of the General Rules is illegal as relaxation cannot retrospectively be given effect. Accordingly, the Tribunal dismissed the O.A. Thus this appeal by special leave.

2. Shri A. Subba Rao, learned counsel for the appellant contended that Rule 22 of the General Rules read with Rule 5 of the Special Rules gives power to the State to appoint members of the Schedule Castes and Scheduled Tribes to a vacancy or a post in a service or classes of service by virtue of application of rule of reservation not only to initial recuitment but also for appointment by promotion or transfer. The question of carry forward arises only when candidates belonging to Scheduled Castes and Scheduled Tribes who were to get adequate representation in the service or class of posts are not available. Relaxation under Rule 47 would always be retrospective since the requisite conditions prescribed under the Rules cannot be complied with before action is taken. Consequently, the view of the Full Bench is not correct in law while the Division Bench had correctly interpreted the rule of reservation.

3. Ms. K. Amareshwari, learned senior counsel appearing for the State, supporting the stand of the appellant. Shri P.P. Rao, the learned senior counsel appearing for the contesting respondent, contended that though Rule of reservation contemplated under Rule 22 of the General Rules would be applicable to appointment by promotion or transfer, the exercise of the power of relaxation under Rule 47 is bad in law. According to the learned counsel, no injustice or inequality as envisaged in Rule 47 is made out; its benefit should be given only to a class of persons by general relaxation as is contemplated in tha

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1996 Supreme(SC) 538

IMPORTANT POINTS 1. Rule 22 of the A.P. State Subordinate Service Rules is applicable to appointment by promotion or transfer.2. Rule 47 of the A.P. State Subordinate Service Rules can be exerecised retrospectively.

Cases Referred (2)

IMPORTANT POINTS
1. Rule 22 of the A.P. State Subordinate Service Rules is applicable to appointment by promotion or transfer.
2. Rule 47 of the A.P. State Subordinate Service Rules can be exerecised retrospectively.