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SUPREME COURT OF INDIA
Y.V. CHANDRACHUD, P.K. GOSWAMI AND A.C. GUPTA, JJ.
Govt. of A.P. and others, Appellants
Versus
Sri D. Janardhana Rao and another, Respondents.
Civil Appeal No. 704 of 1975,
D/- 23-9-1976.
Advocates appeared
Mr. P.P. Rao, Sr. Advocate and T. V. S. N. Chari Advocate, for Appellants; Mr. A Subbarao, Advocate, for Respondents.
Andhra Pradesh State and Subordinate Service Rules - Rule 42 (h) (i) - Secretary of States Service Rules, 1938 - Rule 13 - Indian Administrative Service Rules, 1954 - Rule 10 - Indian Police Service Rules, 1954 - Rule 15 - Constitution of India, 1950 - Article 309 - Post of Deputy Tahsildar – Employment and service – Quash of order - Whether or not they possessed above qualifications with an assurance that Government would be prepared to relax rules relating to above requirements in favor of candidates who would be otherwise found suitable by Commission - Whether Rule 47 permits relaxation of any rule with retrospective effect - Two respondents before court were directly recruited to post of Deputy Tahsildar and completed their period of probation - Both of them were declared as approved probationers and were invested with powers of Magistrate of third class and then of the second class - They become eligible for appointment as Tahsildars on November and June respectively - Respondents and the said Deputy Tahsildars all belong to area of State - Erstwhile employees of Government did not have opportunities to acquire the qualifications prescribed by Rule 4 (a) of special Rules on their promotions as Deputy - Government felt that they should not be left out of consideration for appointment and asked Public Service Commission to consider the names of such Deputy for inclusion in the lists of eligible candidates assuring Public Service Commission that Government would relax requirement as to qualification in favor of such Deputy provided they were otherwise found suitable by Commission - Public Service Commission accordingly included names of these employees in batches in the lists prepared for the years - By an order Governor of Andhra Pradesh relaxed the provisions of R. 4 (a) of Special Rules relating to the qualifications required of Deputy for being appointed in favor of these employees and requested the Board of Revenue to make appointments to the post area according to order in which names had been indicated in the panels for the aforesaid years against vacancies - Order traces the background of facts and states the reasons for relaxation of Rule 4 (a) of Special Rules in the case of these employees – Held, It is only when State Government finds that it is desirable to declare the post equivalent to a senior post inter alia by reason of efficiency of person which has entitled him to promotion that consequential necessity arises for giving him that senior post by requisite declaration of a senior post - A retrospective declaration therefore is in scheme of thing practical as well as reasonable - Counsel for the respondents drew our attention to the words for being appointed in Rule 47 to contend that rule was meant to be applied only prospectively - According to counsel the rule when it says that nothing in general rules shall limit or abridge the power of the Governor to relax rigor of these rules in the case of any class or category of persons for being appointed to any civil post it contemplates an appointment in future - Court do not think that this contention has any force - Words for being appointed in context in which they appear do not necessarily refer to a future appointment - Validity of an appointment to any civil post may be questioned after the appointment has been made, and there is nothing in Rule 47 to indicate that Governor in exercise of power under this rule cannot deal with such a case if this was required in the interest of justice and equity - It appears that after Judgment of Division Bench of the High Court was delivered on November by a notification provision in the special Rules setting out the qualifications required for post of Tahsildar was amended by adding a proviso saying that requirement in regard to being an approved probationer and exercise of powers of a Magistrate shall not apply in respect of those Deputy in area for whom promotion to category of Deputy was or the first stage of promotion - Notification states that the amendment shall be deemed to have come into force on June - Amendment thus appears to cover the cases of said Deputy – However rule as amended does not arise for consideration in this appeal which is directed against Judgment of High Court based on rule as it stood prior to the amendment and we do not express any opinion on amended rule - Appeal allowed
Judgment
GUPTA, J.:- This appeal by special leave arises out of a writ petition made by the respondents before us in the Andhra Pradesh High Court questioning the inclusion in the list of Deputy Tahsildars eligible for promotion to the post of Tahsildar of the names of 63 persons, impleaded as respondents Nos. 4 to 66 in the writ petition. These 63 persons, were working as Upper Division Clerks in the erstwhile State of Hydrabad when, on November 1, 1956, the State of Andhra Pradesh was formed. The state Government in consultation with the Government in consultation with the Government of India issued an order on April 7, 1960 stating that the first stage promotion of the employees of the erstwhile Government of Hyderabad, that is, promotion to posts one stage above those held by them prior to November 1, 1956, would be governed by the Hyderabad Cadre and Recruitment Rules for promotion which were applicable to them before that date, but subsequent promotions after the first stage of promotion would be governed by the relevant rules in force in the newly formed State. By virtue of this order the aforesaid 63 employees were promoted to the post of Deputy Tahsildar which was the first stage promotion for them. Later, this order dated April 7, 1960 was made a statutory rule, namely, Rule 42 (h) (i) of the Andhra Pradesh State and Subordinate Service Rules which came into force on March 7, 1962. The Andhra Pradesh Civil Services (Executive Branch) Special Rule Revenue Department, hereinafter referred to as the Special Rules, were made on July 17, 1962 but made effective retrospectively from November 1, 1956. These Rules cover two categories of service; we are concerned here with category 2 - Tahsildars. Rule 4 (a) of the Rules says inter alia that the qualifications of a candidate for appointment to the post of Tahsildar shall be as specified in the annexure to the rules. The annexure provides that a Tahsildar recruited by transfer from the category of Deputy Tahsildars must be a permanent Deputy Tahsildar or an approved probationer in the category of Deputy Tahsildars and should have exercised the powers of a Magistrate of the third class and also of the second class for a period of six months in each capacity. Only those candidates who have passed a criminal judicial test can be invested with magisterial powers under the orders in force. Under R. 4 (a) the State Government has to prepare in consultation with the Public Service Commission a list of persons eligible for appointment as Tahsildars, and no Deputy Tahsildar is eligible for appointment as Tahsildar unless his name is included in such list.
2. The two respondents before us were directly recruited to the post of Deputy Tahsildar in the year 1962 and completed their period of probation in 1965. Both of them were declared as approved probationers in 1965 and were invested with the powers of Magistrate of the third class and then of the second class. They become eligible for appointment as Tahsildars on November 14, 1966 and June 18, 1969 respectively.
3. The respondents and the said 63 Deputy Tahsildars all belong to the Telangana area of the State. The 63 erstwhile employees of the Government of Hyderabad did not have the opportunities to acquire the qualifications prescribed by Rule 4 (a) of the special Rules on their promotions as Deputy Tahsildars. The Government felt that they should not be left out of consideration for appointment as Tahsildars and asked the Public Service Commission to consider the names of such Deputy Tahsildars for inclusion in the lists of eligible candidates assuring the Public Service Commission that the Government would relax the requirement as to qualification in favour of such Deputy Tahsildars provided they were otherwise found suitable by the Commission. The public Service Commission accordingly included the names of these 63 employees in batches in the lists prepared for the years 1965, 1966, 1968 and 1969. By an order dated June 30, 1971 th
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