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1967 Supreme(AP) 166
Andhra Pradesh High Court
Judges : ALLADI KUPPUSWAMI, P.JAGMOHAN REDDY
K.Vishwanatham - Appellant
Versus
State OF A.P. - Respondent
Decided On : 10-26-67
The Governor or any person directed by him under the proviso to Article 309 of the Constitution does not have the power to make a rule with retrospective effect.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 309 - POWER OF GOVERNOR TO MAKE RULES - RETROSPECTIVE EFFECT - WHETHER GOVERNOR CAN MAKE RULES WITH RETROSPECTIVE EFFECT - HELD, NO.
Fact of the Case:
The petitioner, a Scheduled Caste candidate, was not included in the panel of names prepared by the Government of Andhra Pradesh for appointment to the posts of Assistant Secretaries for the year 1964-65, even though he was the senior most among the Scheduled Caste employees eligible for appointment. The Government also made temporary appointments in contravention of the statutory rules and executive instructions. The petitioner filed a writ petition challenging the Government's action.
Finding of the Court:
The court held that the Governor or any person directed by him under the proviso to Article 309 of the Constitution does not have the power to make a rule with retrospective effect. The court further held that the rules made by the Governor in this case were void to the extent that they operated retrospectively.
Issues: Whether the Governor has the power to make rules with retrospective effect under Article 309 of the Constitution.
Ratio Decidendi: The court held that the power conferred on the Governor or his nominee under the proviso to Article 309 is not a sovereign legislative power, though it may be a power to make a law, if a rule made by him has that effect. The court further held that this power is not co-extensive with or coeval or similar to, the power conferred on the legislature and that the rules made by the Governor or his nominee are subject to any enactments that may be made by the legislature.
Final Decision: The court allowed the writ petition and directed the State Government to refer the names of the Section Officers belonging to the Scheduled Castes and the Scheduled Tribes, if any, who are eligible for appointment as Assistant Secretaries to Government to the Andhra Pradesh Public Service Commission to consider the suitability or otherwise of the petitioner for including his name in the panel for the places reserved In the cycle of 25 vacancies.
( 1 ) THE petitioner is an Adi Andhra belonging to a scheduled caste. He is in the service of the Government of Andhra Pradesh, having entered it as a Lower Division clerk in the Revenue Department of East Godavari District on 15-4-1940. He was subsequently promoted as an Upper Division Clerk in 1950 and thereafter transferred to the Development Department in the Secretariat Service in a similar post in 1954. On 31-12-1955. he was promoted as a Section Officer. It is the petitioners case that the Government of Andhra Pradesh. in preparing panel of names from among the Section Officers of the Secretariat for appointment to the Posts of Assistant Secretaries for the year 1964-65 in the year 1964. did not include the petitioners name, though he is the senior most among the Scheduled Caste employees eligible for appointment to the 9th 16th and 22nd vacancies in a cycle of 25 vacancies of the posts of Assistant Secretaries, in accordance with Rule 8 of the Special Rules for Andhra General Service Class IX, (hereinafter referred to as the "special Rules") read with Rule 22 of the General Rules for the State and Subordinate Services Rules (hereinafter referred to as the "general Rules" ). Even when the Government made temporary appointments pending selection by the Andhra Pradesh Public Service Commission, it made appointments in contravention of the statutory rules and executive instructions contained in their Memoranda Nos. 2273/62-8 (General Administration (Services -D) Department dated 19-7-1963 and No. 3743/63-1 General Administration (Services -D) Department dated 13-9-1963 in the last of which, it stated that the rules of reservation must be followed when making appointments even on temporary basis in spite of several representations, no notice was taken of the claim of the petitioner, and the Government gave an endorsement to the petitioner stating that this case for selection to the post of an Assistant Secretary would be considered in due course, and ignoring his rights, a panel was finally approved and appointments were made in pursuance thereof on 1-3-1965. It is therefore prayed that a direction be given to the Government to follow Rule 8 of the Special Rules read with Rule 22 of the General Rules in preparing a panel for appointment of Assistant Secretaries from among the Section Officers for the year 1964-65 by including the petitioners name for selection by the Andhra Pradesh Public Service Commission to a post in the 9th vacancy in the cycle of 25 vacancies and that pending disposal of the writ petition, to direct the Government not to make further appointments to the posts of Assistant Secretary.
( 2 ) ACCORDING to the petitioner in his reply affidavit to the counter of the 1st respondent, Government of Andhra Pradesh, his writ petition having been admitted, two weeks time was taken by the Government of filing a counter, and in the meanwhile the Government deleted Rule 8 of the Special Rules by G. O. Ms. No. 2066 General Administration (Services-B) Department dated 15-11-1965 with retrospective effect to come into force on 1-1-1961.
( 3 ) THE Governments attitude was that there were only two Section Officers belonging to the scheduled castes in the Departments other than Law and Finance Departments other than Law and Finance viz. , (1) the petitioner and (2) K. Lakshmana Rao, that their ranking was 183 and 212 respectively in the common seniority list of all the Departments except Law and Finance, that in view of the heavy responsibilities attached to the post of Assistant Secretary to the Government, a policy decision was taken by the Government not to apply the rule of special representation for purposes of appointment to the category of Assistant Secretaries to Government, even though the Special Rules provide for the same. IN furtherance of that policy, Rule 8 of the Special Rules was deleted from 1-1-1961. It was stated that the name of the petitioner was included in the list of eligibl
