1. Promotion of Deputy Forest Range Officers to Forest Range Officers without passing required departmental tests — Challenge to validity of temporary promotions and relaxation of rules. (Para 1 , 2 , 5 , 6 )
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1999 Supreme(SC) 754
SUPREME COURT OF INDIA
A.P.Misra : Sujata V.Manohar
M.Mazharuddin Ali
Versus
Governement Of A.P.
Case No. : 1612 , 23 of 1988
Date of Decision : 7/27/99
A memo requesting proposals for relaxation of service rules does not constitute a valid order of relaxation. Temporary promotion is impermissible if the candidate lacks prescribed qualifications, as such promotions must follow rules or a formal relaxation by the competent authority.
Headnote:(A) State and Subordinate Services Rules, 1962 - Rules 37 and 47 - Forest Subordinate Services Rules, 1986 - Rule 5 - Promotion without passing departmental tests - Relaxation of rules - A memo issued by the Principal Secretary requesting proposals for relaxation does not amount to a formal order of relaxation by the competent authority - Temporary promotion of an employee without the prescribed qualifications is prohibited. (Paras 7, 10, 12)
(B) Temporary Promotion - Power to promote temporarily in public interest does not override the requirement of possessing prescribed qualifications; persons promoted without such qualifications must be replaced as soon as possible. (Para 4)
Facts of the case:
Appellants were promoted from the post of Deputy Forest Range Officers to Forest Range Officers without passing the required departmental tests. They contended that a memo issued by the Principal Secretary relaxed the condition of passing the tests. While a previous batch of promotees had received a formal order of relaxation from the Governor, the appellants' promotion was based on a memo that merely requested the submission of specific proposals for relaxation.
Findings of Court:
The memo signed by the Principal Secretary is not an order of relaxation under the service rules. There was no evidence of specific proposals being submitted or a formal order of relaxation being issued by the competent authority for the relevant panel.
Issues: Whether a memo issued by the Principal Secretary to the Government constitutes a valid relaxation of rules for promotion and whether temporary promotion is permissible without the prescribed qualifications.
Ratio Decidendi: The power to relax rules is vested in the Governor; therefore, a memo from the Principal Secretary requesting proposals for relaxation does not constitute a valid exercise of that power. Furthermore, service rules prohibit the temporary promotion of an employee who does not possess the prescribed qualifications.
Result: Appeals dismissed.
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Table of Contents
2. Appellants contended that a government memo relaxed the requirement to pass departmental tests; respondents challenged promotions due to lack of prescribed qualifications. (Para 1 , 2 )
3. A memo signed by a Principal Secretary requesting proposals for relaxation does not constitute a formal order of relaxation by the Governor under service rules. (Para 7 , 9 , 10 , 11 )
4. Temporary promotion of an employee without prescribed qualifications is prohibited unless a valid order of relaxation is issued by the competent authority. (Para 4 , 12 )
5. Promotions of unqualified officers set aside; those with valid relaxation orders retained subject to passing tests within the stipulated period. (Para 12 , 15 , 16 , 18 )
6. Does a government memo indicating a decision to relax rules constitute a valid relaxation order?
No. A memo signed by a Principal Secretary that requests specific proposals for relaxation is not an order of relaxation. A formal order issued by the Governor under the relevant service rules is required to legally relax qualification requirements. (Para 9 , 10 )
7. Can an employee be promoted temporarily if they lack the prescribed qualifications?
Generally, no. Under the relevant service rules, no person who does not possess the prescribed qualifications shall ordinarily be promoted temporarily. If such a promotion occurs, the person must be replaced as soon as possible by a qualified candidate. (Para 4 , 12 )
8. What is the effect of a conditional relaxation of rules for promotion?
Where relaxation is granted subject to a condition, such as passing tests within a specific timeframe, the employee is entitled to the promotion provided they fulfill the condition within the stipulated period; otherwise, they must be reverted. (Para 14 , 15 )
(1) CAS Nos. 1866-82 of 1994 The appellants in these appeals were promoted from the post of Deputy Forest Range Officers to the post of Forest Range Officers in the State of Andhra Pradesh under the order of 15-6-1991. The appellants had not passed the departmental test required for promotion to the post of Forest Range Officers. They, however, contended that by a memo dated 26-3-1991 issued by the Principal Secretary to the Government, the condition requiring them to pass the departmental examination was relaxed in terms of that order and hence they were legitimately promoted. It should be noted that the promotion was temporary since the vacancies were only available to direct recruits while the appellants were promotees.
(2) THEIR promotion was challenged before the Andhra Pradesh Administrative Tribunal by the Deputy Forest Range Officers who had already qualified in the departmental tests. By the impugned judgment and order dated 26-3-1993, the Andhra Pradesh Administrative Tribunal has set aside the order of promotion and has further given a direction that if any of the present appellants has become qualified subsequently, he may be considered for the subsequent panels after he became qualified.
(3) WE are not concerned in these appeals with the subsequent circulars or orders issued in connection with passing or not passing the departmental examination. Hence, we have not considered the same.
(4) THE terms and conditions of service of the appellants are governed by the Andhra Pradesh State and Subordinate Services Rules, 1962 . Rules 37 and 47 of the said rules are as follows:
"37. Temporary promotion.(a)(i) Where it is necessary in the public interest to fill emergently a vacancy in a post borne on the cadre of a higher category in a service or class by promotion from a lower category and if the filling of such vacancy in accordance with the rules is likely to result in undue delay, the appointing authority may promote a person temporarily otherwise than in accordance with the said rules. (ii) No person who does not possess the qualifications, if any, prescribed for the said service, class or category, shall ordinarily be promoted under clause (i). Every person who does not possess such qualifications and who has been or is promoted under clause (i) shall be replaced as soon as possible by promoting a person possessing such qualifications. (dd) The appointing authority shall have the right to revert to a lower category or grade any person promoted under sub-rule (a) or sub-rule (b) at any time without assigning any reason and without notice. (e) If such person is subsequently promoted to the higher category in accordance with the rules he shall commence his probation if any, in such category from the date of such subsequent promotion or from such earlier date as the appointing authority may determine. 47. Relaxation of rules by the Governor.No rule made under the proviso to Article 309 of the Constitution of India or continued under Article 313 of the 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."
(5) APART from the above rules, in respect of the Forest Subordinate Service, the State of Andhra Pradesh has also framed specific rules known as "the Andhra Pradesh Forest Subordinate Services Rules". The rules which are relevant for our present purpose are the Andhra Pradesh Forest Subordinate Services Rules of 1986. These rules are in addition to the general rules, namely, the
