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PETITIONER: K. ANJAIAH ETC.

       Vs.

RESPONDENT: K. CHANDRAIAH & ORS. ETC.

DATE OF JUDGMENT03/03/1993

BENCH: G.B. PATTANAIK, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      These appeals  are directed against the order of Andhra Pradesh Administrative Tribunal Hyderabad dated 14.9.1994 in OA Nos. 6742 of 1993 and 2465 of 1993. By the impugned order the Tribunal  has quashed  Regulation  9(2)  of  the  Andhra Pradesh College  Service Commission (terms and conditions of service   of employees  of the  Commission) Regulation, 1986 (hereinafter referred  to as the ‘Regulation’) inter alia on the ground  that  it  contravenes  Regulation  9(1)  and  it purports to  wipe off  the past  services  rendered  by  the government   servant    Superintendent,   College    Service Commission is the appellant.      The brief  facts of  the  case  are  that  the  Service Commission in Andhra Pradesh was formed under the Provisions of Andhra  Pradesh  College  Service  Commission  Act,  1985 (hereinafter referred  to as ‘the Act’). The deputation from the  State   Government  in   different  batches   and  such deputationists were  managing the affairs of the Commission. The  Commission   itself  was   constituted  by   the  State Government in  exercise of  powers conferred  upon it  under Section 3  of the  Act. Section  7 of the Act deals with the staff of the Commission and it stipulates that the Secretary of the  commission shall  be appointed by the Government and other employees  as the  Commission may  with  the  previous approval of  the  government  appoint  from  time  to  time. Section  7(3)  of  the  Act  provides  that  the  terms  and conditions of  service of  such employees  of the Commission shall be  such as may be provided for by Regulation. Section 7 of the Act is extracted hereinbelow in extenso:-      "STAFF OF THE COMMISSION      7. (1)  The staff of the Commission      shall consist of:      (a) Secretary, who shall be      appointed by the Government, and      (b) Such  other  employees  as  the      Commission may,  with the  previous      approval of the government, appoint      from time to time.      (2) The Salary of the Secretary and

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    other employees  of the Commission,      shall be such as may be prescribed.      (3) The  other terms and conditions      of Service  of the  Secretary shall      be such  as may  be prescribed  and      those of the other employees of the      Commission shall  be such as may be      provided for by Regulations."      Section 20 of the Act confers power upon the Commission to  make  Regulation  with  the  previous  approval  of  the Government and  such Regulation  may provide  the terms  and conditions  of   the  services   of  the  employees  of  the Commission. In  exercise of  the power  conferred  upon  the Commission under  Section 20  read with  Section 7(3) of the Act a  set of  Regulations were framed by the Commission and the Government  examined the  same and conveyed its approval as required  in Sub  Section (1) of Section 20 by Government letter dated  29.11.1986. For better appreciation Section 20 of the Act is extracted hereinbelow in extenso:-      "POWER TO MAKE REGULATIONS.      Section 20  (1) The Commission may,      with the  previous approval  of the      Government  make   regulations  not      inconsistent with the provisions of      this  Act   or   the   rules   made      thereunder  for   discharging   its      functions under this Act.      (2)  In   particular  and   without      prejudice to  the generality of the      foregoing power,  such  regulations      may provide  for all  or any of the      following matters, namely:-      (a) the  terms  and  conditions  of      services of  the employees  of  the      Commission under sub-section (3) of      Section 7.      (b)  The  manner  of  selection  of      persons  for   appointment  to  the      posts of teachers under sub-section      (1) of Section 10;      (c) The  procedure for  the conduct      of business of the Commission under      Sub-section (2)  of Sections 10 and      13; or      (d)  The  income  and  expenditure,      budget,  accounts   and  audit  and      annual report of the commission."      Regulation 9, as originally approved by the Government, stood amended and the amended Regulation 9(1) reads thus:-      "The persons  drawn from  other departments  will carry their service  and they will be treated as on other duty for a tenure  period to  be specified by the Commission or until they are permanently absorbed on the Commission whichever is earlier."      "Regulation 9(2)  - The services of those staff members working in  the Commission on deputation basis and opted for their absorption  in  the  Commission,  shall  be  appointed regularly as  the staff  in the  Commission, cadre  to which they belong  as per the orders of Government approving their appointments batch  by batch  and to determine the seniority accordingly. for  this purpose the Commission may review the promotions already affected."      It may  be stated  here that  the original Regulation 9 was re-numbered  as Regulation  9(1) and Regulation 9(2) was inserted by amendment. Since the Commission was being manned

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by the  employees on  deputation from the State Government,. the  commission  asked  for  exercise  of  option  by  those employees who  were desirous  to the absorbed permanently in the commission.  the private  respondents are those employee who are  on deputation  with the  commission from  the State Government and  they approached  the Administrative Tribunal challenging the validity of Regulation 9(2) and the Tribunal by the  impugned judgment  has held the said provision to be ultra virus  and hence  these appeals.  While granting leave this Court indicated that the Special Leave is granted in so far as the validity of Regulation 9(2) is concerned. In this view of  the matter  the  only  question  which  arises  for consideration  is   whether  the   aforesaid  provision   of Regulation 9(2) can be said to be invalid?      Mr.  Ram  Kumar,  learned  counsel  appearing  for  the appellants, contended  that the  employer  has  a  right  to determine the  service conditions of the employees including the principle on which the seniority of the employees can be governed and in exercise of that power the employer, namely, Service Commission,  having framed the Regulation and having indicated that  the persons who are continuing on deputation can be  absorbed in the Commission batch by batch as per the orders of  the Government and their seniority naturally will be determined  in accordance  with their  absorption and the said principle  does not  violate any  of the constitutional provision.  Mr.   Ram  Kumar,  learned  counsel,  therefore, contended that  the Tribunal  committed an error in striking down regulation  9(2). The learned counsel further contended that Regulation  9(1) has no connection with Regulation 9(2) in as  much as  Regulation 9(1)  deals with  a situation not connected  with   the  determination  of  seniority  of  the employees and,  therefore, Regulation 9(2) cannot be said to be violative of Regulation 9(1) and the Tribunal was thus in error in  coming to  the said  conclusion. In support of his submission the  learned counsel relied upon the decisions of this Court  in Chief  Engineer  and  Secretary,  Engineering Department for  and on  behalf on  chandigarh. etc  vs. K.S. Brar &  Anr. Etc.  (1988 (Suppl.)  Supreme Court cases, 756) and M.Hara  Bhupal vs  Union of  India &  Ors. -  (1997  (3) Supreme Court cases 561)      Mr. Reddy,  learned counsel  appearing for  the private respondent on  the other  hand contended,  that when  person from different sources are drafted to serve in a new service their  pre-existing   length  for   service  in  the  parent department should  be respected  and preserved by taking the same into  account in  determining their  ranking in the new service cadre  and this  has been done under Regulation 9(1) that benefit  cannot be  taken away for determination of the inter se  seniority as  per Regulation  9(2) and, therefore, the Tribunal was justified in striking down Regulation 9(2). IN support of his contention the learned counsel relied upon the decisions  of this  Court in Wing Commander J. Kumar vs. Union of  India -  (1982) 2  Supreme Court  Cases 116 and k. Madhavan & Anr. Etc. Vs. Union of India & Ors. etc. - (1987) 4 Supreme Court Cases, 566.      Mrs. Amareswari,  learned senior  counsel appearing for the State  of Andhra  Pradesh On  the other  hand submitted, that Regulations 9(1) and 9(2) have to be harmoniously read. The learned  counsel further contended that though there has been little  clumsiness in  the drafting  of Regulation 9(2) but the  intention is clear that the deputationists on being finally absorbed in the Commission would get their seniority determined in  the new  cadre under the Commission by taking into account the past services rendered under the Government and, therefore,  the provisions  of Regulation  9(2) can  be

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read down  to the  aforesaid effect and should not be struck down.      In view  of the  rival submissions  at the Bar the only question  that  arises  for  consideration  in  whether  the provisions of  Regulation 9(2)  shall be  upheld by  reading down the  same or the language used in the said provision is not susceptible to be read down and should be struck down by the Tribunal?  It is  a cardinal  principle of  construction that the Statute and the Rule of the Regulation must be held to  be   constitutionally  valid  unless  and  until  it  is established they  violate  any  specific  provision  of  the constitution. further  it  is  the  duty  of  the  Court  to harmoniously construe  different provisions  of any  Act  or Rule or  Regulation,   it possible,  and to sustain the same rather than striking down the provisions out right. In other words the  Court has  to make  an  attempt  to  see  if  the different provisions  of the  Regulation can  survive and in making that  attempt it is open for the Court to read down a particular provision  to clarify  any ambiguity  so that the provision  can   be  sustained  but  not  to  relegislate  a provision. This  being the parameters under which a Court is required  to   scrutinise  the  provisions  of  any  Act  or Regulation when the same is challenged, we would now examine the  validity   of  Regulation  9(2).  Admittedly  when  the Commission started  functioning after  being constituted  by the government  in exercise  of powers  under  the  Act  the employees came  on deputation  from the  State Government to man the  job in  the commission. When the Commission finally takes a  decision to permanently absorb these deputationists after obtaining  their option the question of their inter se seniority in  the commission  crops up  and Regulation  9(2) deals with the said situation. In the case of R.S. Makashi & Ors. vs.  I.M. Menon and ors. - (1982) 1 Supreme Court Cases 379, this  Court  had  indicated  that  it  is  a  just  and wholesome principle  commonly applied to persons coming from different sources  and drafted  to serve  a new  service  to count their  pre-existing length  of service for determining their ranking  in the  new service cards. The said principle was reiterated  by this Court in K. Madhavan’s case (supra). A three  judge Bench  judgment of  this Court in the case of Wing  Commander    J.  Kumar  (supra)  also  reiterated  the aforesaid well known principle in the service jurisprudence, and in the case in hand this principle has been engrafted in Regulation 9(1).  The question that arises for consideration is whether the benefits conferred upon a deputationist under Regulation 9(1)  has been taken away by Regulation 9(2)? The Tribunal  has   come  to   the  aforesaid   conclusion   and accordingly has  struck down.  If a literal meaning is given to the  language used in Regulation 9(2), it may appear that the benefits  conferred under  Regulation 9(1) is given a go bye and  the past services rendered by the deputationists in their parent  cadre is  not being  taken into  account while determining their  inter se seniority in the new cadre under the  Commission.   But  as   has  been   contended  by  Mrs. Amareswari, learned  senior counsel  appearing for the State Government  who   is  the  authority  for  approval  of  the Regulation that  the phraseology  used in Regulation 9(2) is no doubt  little cumbersome  but it conveys the meaning that the total  length of  service of these deputationists should be taken into account for determining the inter se seniority in the new service under the Commission and the past service is not  being wiped  off. We find considerable force in this argument and  reading down  the provision of Regulation 9(2) we hold  that while  determining the  inter se seniority the deputationists in  the new  cadre under the Commission after

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they are  finally absorbed,  their past services rendered in the Government have to be taken into account. In other words the total  length of  service of each of the employees would be the determinative factor for reckoning their seniority in the new  services  under  the  Commission.  Mr.  Ram  Kumar, learned counsel appearing for the appellant vehemently urged that length  of service  under the  Commission should be the criteria for  determining the  inter se seniority but we are unable to  persuade ourselves  to agree  with the  aforesaid submission of the learned counsel. It is not known that when the persons  were brought  over to  the commission  from the Government on deputation whether their option had been asked for or  not? Further  such a  principle if accepted then the integer se seniority would be dependent upon the whin of the Government, and  we see  no rationale  behind the  aforesaid principle. The two decisions on which Mr. Ram Kumar, learned counsel placed  reliance in support of his contention infact do  not   lay  down  the  aforesaid  proposition.  We  have, therefore, no hesitation to reject the submission of Mr. Ram Kumar.      In the  aforesaid premises  we dispose of these appeals by reading  down the  provision of  Regulation 9(2)  in  the manner as  indicated earlier  rather than  striking down the same and  hold that while determining the inter se seniority of the  deputationists in  the services  of  the  Commission their entire  length of  continuous  service  shall  be  the basis. These appeals are disposed of accordingly. But in the circumstances there will be no order as to costs.