The Governor has the power to make a rule under Article 309 of the Constitution with retrospective effect.

ORDER :

SAMBASIVA RAO, J.:— The Government of Andhra Pradesh directed, by its G.O. Ms No. 599 General Administration Department (Services-D); dated 4-5-1961, that with effect from 1-1-1961, certain reservations should be made for members of the Scheduled Castes and Scheduled Tribes in the matter of promotions also, at it had been obtaining as per Rule 22 of the General Rules of the State and Subordinate Services, at the time of the first recruitment into services. Accordingly, Rule 8 of the Special Rules relating to the promotions to the posts of Assistant Secretaries to the Government of Andhra Pradesh, was amended reserving the 9th, 16th and 22nd places in every cycle of 25 vacancies, for the candidates belonging to the Scheduled Castes and Scheduled Tribes. However, the Government took a policy decision not to apply this rule of pedal promotions, when the panel of section Officers, fit for appointment as Assistant Secretaries to Government was prepared in the year 1964–65. Pursuant to this decision, Rule 8 of the Special Rules was deleted, with retrospective effect from 1-1-1961, by G.O. Ms. No. 2066 General Administration (Services-D) Department, dated 15-11-1965. This rule was made by the Governor of Andhra Pradesh, in exercise of his powers under Article 309 of the Constitution. Respondents 3 and 4 in the writ petition are members of Scheduled Castes. Feeling aggrieved by this deletion of the special reservation, respondent No. 3 filed W.P. No. 1148 of 1985 in this Court. By its order dated 26th October, 1967, this Court allowed the writ petition, holding that the Governor bad no power to make a rule, with retrospective a effect under Art. 309 of the Constitution. Allowing the writ petition it gave direction that—

“The State Government should refer the names of the Section Officers belonging to the Scheduled Castes and the Scheduled Tribes if any, who are eligible far 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. If the petitioner is found suitable and appelated, his seniority to the 9th post should be fixed vis-a-vis the others as If his name was included in the panel when originally approved by the Public Service Commission.”

1. None of the present petitioners, who have been promoted as Assistant Secretaries to the Government between 1964 and 1967 were made parties to the writ petition. Petitioners 4 and 8 had been in fact, selected as Assistant Secretaries, even before the writ petition was filed, though the other petitioners were selected, later, in the year 1967. In pursuance of the direction in the writ petition, the State Government which was a party to it, referred the case of the third respondent (Petitioner in W.P. No. 1148 of 1965) with that of the fourth respondent, who also belongs to the Scheduled Castes, to the Public Service Commission for its consideration as to their suitability or otherwise for appointment as Assistant Secretaries and also for fixation of their ranks in the panel for 1964–65. A, (he counter affidavit filed on behalf of the Government discloses—

“The advice of the Andhra Pradesh Public Service Commission was that both the third and the fourth respondents were not suitable for inclusion in the 1964–65 panel for Assistant Secretaries to Government on the basis of their records.”

2. The Government, however, exercising their powers under Art. 335 of the Constitution, did not accept the advice of the Commission and decided to include the names of respondents 3 and 4 in the panel for Assistant Secretaries in the year 1964–65.

3. The Supreme Court of India declared the law, by its decision dated 27th March, 1968 in W.P. No. 96 of 1967, that the Rules made by the President and the Governor under Art. 309 have full effect, both prospectively and retrospectively. In view of this decision, the Govern