PETITIONER:
GOVERNMENT OF ANDHRA PRADESH AND ORS.
Vs.
RESPONDENT:
SRI D. JANARDHANA RAO AND ANOTHER
DATE OF JUDGMENT23/09/1976
BENCH:
GUPTA, A.C.
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
CITATION:
1977 AIR 451 1977 SCR (1) 702
1976 SCC (4) 226
ACT
Civil service--Powers of relaxation--Whether rules can
be made retrospectively--Andhra Pradesh State and
Subordinate Service Rules 1962---Rule 47--Andhra Pradesh
Civil Services (Cooperation Branch)
Special Rules 1962--rule 4.
HEADNOTE
The respondent filed a Writ Petition in-the High Court
questioning the inclusion in the list of Deputy Tahsildars
eligible for promotion to the post of Tahsildars of the
names of 63 persons who were impleaded as respondents 4 to
66, in the Writ Petition. The 63 persons were working as
Upper Division Clerks in the erstwhile State of Hyderabad.
The State Government in consultation with the Government of
India issued an order on 7-4-1960 stating that the first
stage promotion of the employees of the erstwhile Government
of Hyderabad should be governed by the Hyderabad Cadre and
Recruitment Rules for promotion which were applicable to
them before that date. The 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 6 employees were promoted to the post
of Deputy Tahsildars which was the first stage promotion
for them. In 1962, Andhra Pradesh Civil Services (Coopera-
tion Branch ) Special Rules were framed, but were made
effective retrospectively from 1st November, 1956. Under
rule 4(a) the State Government has to prepare in consulta-
tion with the Public Service Commission a list of persons
eligible for appointment as Tahsildars. The 63 erstwhile
employees of the Government of Hyderabad did not have the
opportunity to acquire the qualifications prescribed under
rule 4(a) of the Special Rules on their promotion 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 list of
eligible candidates assuring the Public Service Commission
that the Government would relax the requirements as to
qualification in favour of such Deputy Tahsildars provided
they were otherwise found suitable by the Commission. By
order dated 30-6-1971 the Governor relaxed the provisions of
rule 4(a) of the Special Rules in exercise of powers under
s. 47 of the Andhra Pradesh State and Subordinate Services
Rules 1962. The respondents filed a Writ Petition for quash-
ing the order dated 30-6-1971 in the High Court. The re-
spondents contended that as a result of the said order their
claims for appointment to the posts of Tehsildar had been
passed. over in favour of unqualified persons. The High
Court allowed the Writ Petition. The High Court held that
rule 47 did not confer any power to relax a rule retrospec-
tively. It was also held that under rule 47 power was given
to Governor personally and therefore the exercise of it by
the Governor was invalid.
In an appeal by special leave the appellant contended:
1. That rule 47 did not confer any power to relax a
rule retrospectively.
2. The power was given to the Governor personally
to relax the rules and since the impugned order was
not passed by the Governor but by the Govt. of
Andhra Pradesh it was invalid.
Allowing the appeal,
HELD:
1. The view taken by the High Court that the
power conferred by rule 47 is exercisable by the
Governor personally is based on the judgment
703
in Sardarilal v. Union of India, [1971] 3 S.C.R.
461. The said decision stands overruled by the
later decision of this Honble Court in Shamsher
Singh v. State of Punjab, [1975] 1 S.C.R. 814. [706
E--F]
2 Rule 47 empowers the Governor to relax the
general rules in such manner as may appear to him
to be just and equitable. It is clear that power
under rule 47 is to be exercised in the interest of
justice and equity. It is not difficult to see
that the occasion for acting under rule 47 arises
after the attention of the Government is drawn to a
case where there has been a failure of justice. In
all these cases justice can be done only by exer-
cising the power under rule 47 with retrospective
effect otherwise the object and purpose of the rule
will be largely frustrated. Such a provision is
not unique and is to be found in several statutory
rules. [707 A--C]
R.P. Khanna & Ors. v. S.A.F. Abbas & Ors., [1972] 3
S.C.R. 548, followed.’
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 704 of 1975.
(Appeal by Special Leave from the Judgment and Order
dated 11-11-1974 of the Andhra Pradesh High Court in Writ
Appeal No. 596/73).
P.P. Rao and T.V.S.N. Chari, for the Appellants.
Subbarao, for the Respondents. The Judgment of the
Court was delivered by
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 Tehsildars eligible for promotion to the post
of Tehsildar of the names of 63 persons, impleaded as re-
spondents Nos. 4 to 66 in the writ petition. These 63
persons were working as Upper Division Clerks in the erst-
while State of Hyderabad when, on November 1, 1956, the
State of Andhra Pradesh was formed. The State 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 ap-
plicable 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 promot-
ed to the post of Deputy Tehsildar 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 Services Rules which
came into force on March 7, 1962. The Andhra Pradesh Civil
Services (Executive Branch) Special Rules Revenue Depart-
ment, hereinafter referred to as the Special Rules, were
made on July 17, 1952 but mane 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 qualifica-
tions of a candidate for appointment to the post of Tahsil-
dar shall be as specified in the annexure to the rules. The
annexure provides
704
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 magis-
terial powers under the orders in force.’ Under rule 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 eligi-
ble for appointment as Tahsildar unless his name is included
in such list.
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 de-
clared as approved probationers in 1965 and were invested
with the powers of a Magistrate of the third class, and
then of the second class. ’They became eligible for appoint-
ment as Tahsildars on November 14, 1966 and June 18, 19 69
respectively.
The respondents and the said 63 Deputy Tahsildars all
belong to the Telengana area of the State. The 63 erstwhile
employees of the Government of Hyderabad did not have the
opportunity to acquire the qualifications prescribed by rule
4(a) of the Special Rules on their promotion as Deputy
TahsiIdars. 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 eligi-
ble candidates assuring the Public Service Commission that
the Government would relax the requirement as to qualifica-
tion 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
the Governor of Andhra Pradesh relaxed the provisions of
rule 4(a) of the Special Rules relating to the qualifica-
tions required of Duty Tahsildars for being appointed as
Tahsildars in favour of these 63 employees and requested the
Board of Revenue to make appointments to the post of Tahsil-
dar in the Telengana area according to the order in which
the names had been indicated in the panels for the aforesaid
years against the vacancies. The order traces the back-
ground of facts and states the reasons for relaxation of
rule 4(a) of the Special Rules in the case of these employ-
ees. The material part of the order is as follows:
"The Government have had under consideration for
sometime past the preparation of panels of Tahsil-
dars of the Telengana Region. According to Rules
4(a) read with the Annexure thereto of the Andhra
Pradesh Civil Service (Executive Branch) Special
Rules, a candidate for appointment to the category
of Tahsildars by transfer should, in addition to
the other qualifications, be a permanent Deputy
Tahsildar or an approved probationer in the catego-
ry of
705
Deputy Tahsildars of the Andhra Pradesh Revenue
Subordinate Service by the 1st July of the year to
which the list relates and should have exercised
11I class and II class Magisterial powers respec-
tively for a period of six months each. According
to the orders in force, only those candidates who
have passed the criminal judicial tests can be
invested with Magisterial powers. Allotted offi-
cers from Telengana for whom promotion to the
category of Deputy Tahsildars constitutes the first
stage of promotion after 1--11-1956 (viz. Upper
Division Clerks), are governed by the Hyderabad
cadre and Recruitment Rules for appointment as
Deputy Tahsildars. There is no probation pre-
scribed in the Hyderabad Cadre and Recruitment
Rules for II Grade Clerks (Upper Division Clerks)
on their promotions to the post of Deputy Tahsil-
dars. Therefore, the question of their becoming
approved probationers in the category of Deputy
Tahsildars does not arise. Further, the Hyderabad
cadre and Recruitment Rules do not lay down that
the II Grade Clerks (Upper Division Clerks) should
pass the Criminal Judicial Test as a condition
precedent for promotion to the category of Deputy
Tahsildars and, therefore, those who did not pass
the said tests could have had no opportunity of
exercising magisterial powers while working as
Deputy Tahsildars. In the circumstances it was
felt that it would be unfair to exclude such per-
sons from consideration for promotion to the cate-
gory of Tahsildars on the ground that they were not
,approved probationers and/or had not exercised
magisterial powers. The Public Service Commission
was therefore, requested to consider the names also
of the Deputy Tahsildars of the Telengana Region of
the above category for inclusion in the panels for
the respective years, regardless of whether or not
they possessed the above qualifications, with an
assurance that the Government would be prepared to
relax the rules relating to above requirements in
favour of the candidates who would be otherwise
found suitable by the Commission."
Rule 4(a) of the Special Rules was relaxed by
the Governor in favour of the aforesaid Deputy
Tahsildars in exercise of the power conferred by
rule 47 of the Andhra Pradesh State and Subordinate
Services Rules. Rule 47 reads as follows:
"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 person for
being appointed to any civil post, or of any person
serving 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 ap-
plicable to the case of any person or a class of
persons, the cases shall not
706
be dealt with in ,any manner less favourable to the
person or class of persons than that provided by
that rule."
The respondents before us filed a writ petition for
quashing the order dated June 30, 1971 insofar as it relates
to the said 63 employees who were impleaded as respondents
Nos. 4 to 66 in the writ petition. The writ petitioners
complained that as a result of the order their claims for
appointment to the post of Tahsildar had been passed over in
favour of unqualified persons, and the petitioners asked for
a direction on the Government of Andhra Pradesh, the Board
of Revenue, and the Andhra Pradesh Public Service Commis-
sion, who are the appellants before us, to include the names
of the petitioners in the panel for the years 1968 and 1969,
as the case may be, and fix their seniority at the appropri-
ate places which they would have occupied had they been
promoted at the relevant time. The learned Judge who heard
the writ petition allowed the same and directed that the
claims of the petitioners for inclusion of their names in
the panels from the respective dates ’they had acquired the
requisite qualifications, should be considered on merits.
It was held that rule 47 of the Andhra Pradesh State and
Subordinate Services Rub did not confer any power to relax a
rule retrospectively as had been done by the order dated
’June 30, 1971. It was further held that under rule 47
power was given to the Governor personally to relax the
rules and the impugned order dated June 30, 1971 which was
passed nor by the Governor really but by the Government of
Andhra Pradesh was, as such, invalid. In the Letters Patent
appeal preferred by the State, a Division Bench affirmed the
Judgment of the single Judge.
The view taken by the High Court that the power con-
ferred by rule 47 of the Andhra Pradesh State and Subordi-
nate Services Rules is exercisable by the Governor personal-
ly is based on the Judgment of this Court in Sardari Lal v.
Union of India & ors. (1) But Sardari .Lal’s case has been
overruled by the later decision of this Court in Shamsher
Singh v. State of Punjab, (2) and counsel for the respond-
ents rightly conceded that the impugned order cannot be
assailed on this ground after Shamsher Singh’s case.
The real question that requires to be decided in this
appeal is whether rule 47 permits relaxation of any rule
with retrospective effect. Before proceeding to consider
this aspect, it is necessary to dispose of one small point
raised on behalf of the appellants that the impugned order
was not really retrospective but prospective in operation
because it was only from the date of the order that the
inclusion of the names of the said 63 employees in the
panels for the different years was regularised. The order
made on June 30, 1971 relaxed rule 4(a) of the Special Rules
in the case of these employees to validate the panels for
the years 1965, 1966, 1968 and 1969. The impugned order
thus regularized the inclusion of the names in the panels
which was done long before the order was made. The order is
therefore clearly retroactive and not prospective in opera-
tion.
Rule 47 of the Andhra Pradesh State and Subordinate Services
(1) (1971) 3 S.C.R. 461. (2) (1975) I S.C.R.
814.
707
Rules gives power to the Governor to relax the rigour of the
general rules in such manner as may appear to him to be just
and equitable. To show that rule 47 giving such wide power
to the Governor is not unique of its kind, counsel for the
appellants referred to similar provisions in several other
Service Rules like, rule 13 of the Secretary of State’s
Services (Medical Attendance) Rules, 1938, rule 10 of the
Indian Administrative ServiCe (Pay) Rules. 1954, rule 15
of the Indian Police Service (Probation) Rules, 1954, rule
10 of the Indian Police Service (Pay) Rules, 1954, and rule
10(b), proviso, of the Indian Forest Service (Appointment by
Competitive Examination) Regulations, 1967. Clearly, the
power under rule 47 is to be exercised in the interest of
justice and equity. It is not difficult to see that the
occasions for :acting under rule 47 may well arise after the
attention of the Government is drawn to a case where there
has been a failure of justice. In such cases justice can be
done only by exercising the power under rule 47 with retro-
spective effect, otherwise the object and purpose of the
rule will be largely frustrated. The view we take finds
support from the decision of this Court in R.P. Khanna &
Ors. v. S.A.F. Abbas & Ors. C) In that case the Court was
dealing with rule 3(3)(b) of the Indian Administrative
Service (Regulation of Seniority) Rules, 1954 which lays
down that the year of allotment of an officer who was ap-
pointed to the Service by promotion shall be the year of
allotment of the junior-most among the officers who entered
the service by direct recruitment who officiated continuous-
ly in a senior post from a date earlier than the date of
commencement of such officiation by the former. The second
proviso to the rule states that a promotee shall be deemed
to have officiated continuously in a senior post prior to
the date of inclusion of his name in the select list pre-
pared in accordance with the requirements of the Indian
Administrative Service (Appointment by Promotion) Regula-
tions, if the period of such officiation prior to that date
was approved by the Central Government in consultation with
the Union Public Service Commission. Overruling a conten-
tion raised on behalf of the direct recruits that it was not
open to the State to make a retrospective declaration with
regard to posts being made equivalent to senior posts, this
Court observed:
"From the point of view of workability of the
rule as well as the circumstances and the condi-
tions of service it may not always be practicable
to make such prospective declaration. It is only
when the Government has found that it is necessary
or desirable to declare such posts equivalent to
senior posts that the Government will do so. That
will be usually possible after the Government will
have considered several factors, namely, finance,
structure of the service, the personnel fit for
undertaking the post. Normally, the promotees
obtain promotion from the State Civil Service after
long service. That is why rule 3(3)(b) of the
Regulation of Seniority Rules is designed to arrive
at a fair adjustment of the competing claims of the
direct recruits and the promotees. To hold that a
promotee could not get the benefit of officiation
unless the post was declared as equivalent to a
senior cadre post before the promotee was
appoint
(1) f19721 3 S.C.R. 548.
708
ed to officiate might defect the policy of the
Government. A promotee may be officiating
continuously for a long period and his name may be
included in the select list after some time. Again
a person who officiates continuously for a long
time may thereafter be not included in the select
list. Such a person might deprive a person who
would otherwise be found suitable for appointment
by promotion after similar officiation in a similar
post. It is only when the State Government finds
that it is desirable to declare the post equivalent
to a senior post inter alia by reason of the effi-
ciency of the person which has entitled him to
promotion that the consequential necessity .arises
for giving him that senior post by requisite decla-
ration of a senior post. A retrospective declara-
tion therefore is in the scheme of things practical
as well as reasonable."
Counsel for the respondents drew our attention to the
words "for being appointed" in rule 47 to contend that the
rule was meant to be applied only prospectively. According
to counsel the rule when it says that nothing in the general
rules shall limit or abridge the power of the Governor to
relax the rigour 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. We do not think
that this contention has any force. The words "for being
appointed" in the context in which they appear do not neces-
sarily refer to a future appointment. The validity of an
appointment to any civil post may be questioned after the
appointment has been made and there is nothing to rule
47 to indicate that the 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 the Judgment of the Division Bench
of the High Court was delivered on November 11, 1974, by a
notification dated November 25, 1974 the provision in the
Special Rules setting out the qualifications required for
the post of Tahsildar was amended by adding a proviso saying
that "the requirement in regard to being an approved proba-
tioner and the exercise of powers of a Magistrate shall not
apply in respect of those Deputy Tahsildars in the Telengana
area for whom promotion to the category of Deputy Tahsildar
was or is the first stage of promotion after the 1st Novem-
ber 1956". The notification states that the amendment shall
be deemed to have come into force on the 1st June, 1961.
The amendment thus appears to cover the case of the said 63
Deputy Tahsildars. However, the rule as amended does not
arise for consideration in this appeal which directed
against the judgment of the High Court passed on the rule as
it stood prior to the amendment and we do not express any
opinion on the amended rule.
The appeal is allowed, the Judgment of the High Court
is set aside and the writ petition is dismissed. In the
circumstances of the ease we make no order as to costs.
P.H.P. Appeal
allowed
709