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PETITIONER: K.V. SUBBA RAO & ORS. ETC.

       Vs.

RESPONDENT: GOVERNMENT OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT24/02/1988

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH OZA, G.L. (J)

CITATION:  1988 AIR  887            1988 SCR  (2)1118  1988 SCC  (2) 201        JT 1988 (1)   404  1988 SCALE  (1)379

ACT:      Andhra Pradesh Revenue Subordinate Service Rules, 1961- Rules 3 and 4(e)-Determination of inter se seniority between direct recruit  and promotee  Deputy Tehsildars-Rule 4(e) as amended  on  9.10.80  not  to  operate  retrospectively-Rule should be  followed scrupulously  and  State  Government  to effect direct recruitment at regular intervals.      Constitution of  India, 1950-Article 309-Service Rules- Binding effect  on State  and  citizens  alike-By  willingly abiding by  the law  State to exhibit an ideal situation for the citizens to emulate.

HEADNOTE: %      In 1961 the Andhra Pradesh Revenue Subordinate Services Rules were  brought into  force, the  cadre under  the rules being Deputy Tehsildars. Till then the rules in force in the erstwhile State of Madras were applicable to Andhra Pradesh. Rule 3  of the 1961 Rules provides for appointment of Deputy Tehsildars by direct recruitment or by transfer from members of the  Andhra Pradesh  Ministerial Service  employed in the Revenue Department.  It also  provides that  the substantive vacancies in  the category  of Deputy  Tehsildars  shall  be filled or  reserved to  be filled  by direct recruitment and recruitment by transfer in the proportion of 1:1      A writ  petition was  filed before  the Andhra  Pradesh High  Court   by  some   direct  recruit  Deputy  Tehsildars disputing the  seniority over  them assigned  to a  group of promotees. The  Single Judge dismissed the same holding that the petitioners  had no casuse of action within the frame of the rules.  This was  upheld by the Division Bench, deriving support from  Rule 33(a)  of the  Andhra Pradesh  State  and Subordinate Services  Rules 1962.  Against  this  a  Special Leave Petition was filed before this Court.      Meanwhile, the  State Government  amended Rule  4(e) of the Andhra  Pradesh Revenue Subordinate Service Rules to the effect that  the inter-se  seniority between direct recruits to the  category of  Deputy Tehsildars  and promotees to the category of Deputy Tehsildars shall be 1119 determined from  the date of confirmation in the substantive

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vancancies in  that category  in the  proportion of  1:1  as provided in  sub-rule (b)  of Rule  3. The  validity of  the amendment was  questioned by  a  number  of  promotees  (the appellants herein)  before the State Administrative Tribunal with particular  emphasis on  its retrospective application. The Tribunal  examined the  matter at  length and upheld the validity of  the  enactment.  It  also  directed  the  State Government   to   proceed   to   determine   the   seniority accordingly.  The   said  directions  of  the  Tribunal  are assailed in  the appeals  by  Special  Leave  and  the  Writ Petition filed in this Court.      Dismissing the  appeals, and  the writ  petitions, this Court, ^      HELD: 1.1 The State is entitled to prescribe the manner of computing  inter-se seniority  and in the absence of such prescription, length of service is the basis. Rule 33 of the Andhra Pradesh  State and  Subordinate Services  Rules, 1962 contained prescription regarding seniority and has different provisions to  meet varying situations. Sub-rule (a) thereof which  provides   that  seniority  of  a  person  is  to  be determined "by  the date  of his  first appointment  to such service" has obviously been misinterpreted on account of the presence of the words "unless he has been reduced to a lower rank as  a punishment".  It is appropriate to interpret that rule to  mean that the date of first appointment is intended to refer  to  continuous  appointment  only  and  the  words "unless he  has been  reduced to  a lower  rank  by  way  of punishment" are  really redundant.  This interpretation will have  prospective   application,  as   otherwise   limitless litigation would crop up. [1124F-G; 1125C]      1.2 Rule  4(e) before  amendment in  1980 provided that the seniority  of Deputy Tehsildars would be determined with reference to  the date  of allotment  maintained and ranking assigned by  the Andhra Pradesh Public Service Commission in the  merit  list  of  the  particular  selection.  That  was confined to  inter-se seniority  of direct  recruits and did not cover  inter-se seniority  between recruits  of the  two sources. In  1980, Rule  4(e)  was  amended  and  the  State Government  prescribed  the  manner  of  providing  inter-se seniority among  the recruits  of the  two  categories.  The amended rule  provided  the  date  of  confirmation  in  the substantive vacancy  as the  basis. Rule  3(b) thereof fixed the  reservation   of  direct  recruits  with  reference  to substantive vancancies  at 50%  and Rule 4(e) made provision with reference  to seniority  in the substantive vancancies, with reference to the date of confirmation. The amendment is within the  competency of  the State  Government and  is not open to  challenge. This is a rule made under the proviso to Article 309 of the 1120 Constitution  and   the  rule  can  be  given  retrospective operation. But  the State  Government,  while  amending  the rule, should  have taken  into consideration  the  practical problems   which   would   arise   as   a   consequence   of retrospectivity.   To    allow   the   amendment   to   have retrospective operation  is bound  to create problems. Hence Rule 4(e)  as amended  on 9th  October, 1980, shall not have retrospective  effect   and  would   operate  prospectively. [1125D-G; 1126A, E]      2. Though  Rule 3(b)  fixes the ratio as 1:1 in respect of substantive  vacancies,  the  recruitment  has  not  been regular and  systematic. Rules  have binding effect and they bind the  State and  the citizens  alike once  they  are  in force. In order that law may regulate conduct, the State has

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to feel  bound by  its own  laws and by willingly abiding by the law,  exhibit an  ideal situation  for the  citizens  to emulate. The  rule shall henceforth be followed scrupulously by effecting  recruitment at  regular intervals according to the scheme of the rule.[1126E-G]      [The State  Government has  been directed  to determine the vancancies  available to be filled by direct recruitment within four  months and  to fill  up the  same  within  four months thereafter  and to draw a seniority list on the basis of rule 4(e) on or before 31.12.88.]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2635-38 of 1985.      From the  Judgment and  Order dated  30.10.1984 of  the Andhra Pradesh  High Court  in R.P. Nos. 1998, 2065, 2085 of 1980 and 624 of 1982.      S.N. Kacker,  A. Subba Rao, B. Sudharshan Reddy, Ramesh M. Keshwani and K. Ram Kumar for the Appellants.      Chella  Seetharamiah,   M.K.   Ramamurthy,   Ms.   C.K. Sucharita, K.  Rajendra Choudhary  and K.  Shivraj Chowdhary for the Respondents.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. The  appeals are  by special leave and are  directed against the judgment of the Andhra Pradesh Administrative  Tribunal   in  a   group  of  representation petitions while  the writ  petitions are under Article 32 of the Constitution, Writ Petition 72 of 1121 1987 being  by promotee  Deputy Tehsildars and Writ Petition 241 of  1987 being  by another  group of  Deputy  Tehsildars promoted by transfer.      The background of the litigations may now be indicated. A set  of rules  regarding recruitment  of Deputy Tehsildars was  in  force  in  the  erstwhile  State  of  Madras  which continued to  apply to  Andhra Pradesh  until  in  1961  the Andhra   Pradesh    Revenue   Subordinate    Service   Rules (hereinafter  referred  to  as  the  ’Special  Rules’)  were brought into  force.  The  cadre  under  the  Special  Rules consisted of Deputy Tehsildars only. Rule 3 provided:           "3. Appointment:  (a) Appointment  to the category           of Deputy  Tehsildars in  this  service  shall  be           made:                i) by direct recruitment, or                ii) by  transfer from  members of  the Andhra           Pradesh  Ministerial   Service  employed   in  the           Revenue Department  including the  Office  of  the           Commissioner of  Land Revenue,  Revenue Settlement           parties  and   the  office   of  the  Director  of           Settlements Survey and Land Records.                (b) Substantive  vacancies in the category of           Deputy Tehsildars  shall be  filled or reserved to           be filled by direct recruitment and recruitment by           transfer in the porportion of 1:1". Some directly  recruited Deputy  Tehsildars during the years 1962 and  1963 moved  the Andhra  Pradesh High Court in Writ Petition No.  1502 of 1971 disputing the seniority over them assigned to  a group  of promotees. They alleged that though they had  completed their  probation long prior to the Upper Division Clerks  who were  appointed by  transfer as  Deputy Tehsildars and  had become  full members of the service upon confirmation in their posts while none of the Upper Division Clerks appointed  by transfer  had become  full members, yet

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the directly recruited Deputy Tehsildars had been treated as junior and  their claim to promotion as Tehsildars was being overlooked.  A  learned  Single  Judge  of  the  High  Court dismissed the  writ petition  by holding  that there  was no foundation for  the  grievance  of  the  directly  recruited Deputy Tehsildars  and that  they had  no  cause  of  action within the  frame of  the rules. The decision of the learned Single Judge  was upheld  in appeal  by  a  Division  Bench. Support for that position 1122 was derived  from Rule 33(a) of the Andhra Pradesh State and Subordinate Services Rules, 1962 (hereinafter referred to as the ’General  Rules’). A  special leave  petition was  filed before this Court against the appellate decision of the High Court.      On 9th October, 1980, the State Government amended Rule 4(e) of  the Special  Rules with  retrospective effect  from 12th of October, 1961 in the manner indicated below:                "In sub-rule (e) of Rule 4 of the said Rules,           for  the   words  ’The  seniority  of  the  Deputy           Tehsildar shall  be determined  with reference  to           the date  of allotment  maintained and the ranking           assigned to  him  by  the  Andhra  Pradesh  Public           Service Commission  in  the  merit  list  of  that           selection’, the  following shall  be  substituted,           namely, ’the inter se seniority between the direct           recruits to  the category of Deputy Tehsildars and           the promotees to the category of Deputy Tehsildars           shall  be   determined  from  the  date  of  their           confirmation in  the substantive  vacancy in  that           category in  the proportion  of 1:1 as provided in           sub-rule (b) of Rule 3." A group of promotees who are appellants in the civil appeals went  before  the  Andhra  Pradesh  Administrative  Tribunal questioning the  validity of  the aforesaid  amendment  with particular emphasis  on its  retrospective application.  The Tribunal  referred  the  matter  to  a  three-  Judge  Bench thereof. Before  the Tribunal, it was canvassed on behalf of the appellants  that the prevailing rule regarding seniority was in  Rule 33  of the  General Rules and in the absence of any provision in the special Rules, the principle in Rule 33 was applicable  for determining  inter se  seniority in  the cadre of Deputy Tehsildars. The claim of the direct recruits had been  negatived by  the High  Court and  the dispute was pending decision  of this  Court. There was no scope for the State Government to amend the Rules in 1980 to the prejudice of the  promotees. Even if Government wanted to change their policy regarding  determination of  inter se  seniority,  it should have  been made applicable prospectively and that the seniority already  determined on the basis of Rule 33 of the General  Rules   should  not   have  been   disturbed.   The determination of  seniority on  the basis  of  the  date  of confirmation worked  out prejudice  for the  promotees.  The Tribunal examined  the matter  at length  and  came  to  the following conclusion:                "As a  quota rule  has been  provided in  the           Special 1123           Rules  relating   to  the  recruitment  of  Deputy           Tehsildars from  two  sources,  after  recruitment           there is  an  imperative  need  to  integrate  the           aforesaid two sources. After integration necessity           arises for  fixing inter  se seniority  of persons           who have  come from  the two different sources for           facilitating promotions  to the next higher posts.

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         There being  no rule of relative seniority between           direct  recruits   and  rank  promotees,  and  the           General  Rule   33(a)  being  incapable  to  bring           integration, Government have rightly felt to enact           a rule  for integration  of the two sources in one           cadre and  fixation of  inter se  seniority  among           members  drawn   from  the   said   two   sources.           Confirmation   adopted    as   the   formula   for           determination   of    inter   se    seniority   is           constitutionally valid.  There is  no question  of           any  discrimination  in  laying  down  a  rule  of           seniority based  on the principle of confirmation.           The promotee  Deputy Tehsildars  not  having  been           recruited against  the substantive  vacancies have           not acquired  any vested  interest  so  as  to  be           protected against  the impugned rule of seniority.           Their inter se seniority in the class of temporary           Duputy  Tehsildars   against  the   nonsubstantive           posts, evidently,  determined under  General  Rule           33(a) remains unaffected by the impugned seniority           rule. Thus, the said rule does not offend Articles           14 and 16 of the Constitution. It is free from any           vice  what-so-ever   and   cannot   therefore   be           assailed. The  General Rule  33(a) is incapable of           determination of inter se seniority between direct           recruits and  promotee Deputy  Tehsildars  despite           the fact  that  the  promotees  belonging  to  the           latter class  are approved  probationers and their           recruitments are regular to the category of Deputy           Tehsildars. Since  their  posts  are  outside  the           permanent cadre, they cannot bring their seniority           in the  category of  Deputy  Tehsildars  into  the           permanent cadre  and press  it against  the direct           recruits who  are members  of the  permanent cadre           from the  beginning. The  seniority  between  them           (after judgment)  and the direct recruits shall be           determined on  the basis  of the  impugned rule of           seniority, which,  according  to  us  is  a  valid           enactment. The  Government shall  now  proceed  to           determine the seniority accordingly." These directions  of the  Tribunal are  assailed  in  appeal before this Court. 1124      Writ Petition  No. 72 of 1987 is by 17 promotees during the period  1966 to 1971 while Writ Petition No. 241 of 1987 is by  21 Deputy  Tehsildars promoted  by transfer  from the posts of Upper Division Clerks also during the same period.      The cadre  does not  have  a  prescribed  strength  and temporary appointments  seem to  have become the rule as the history of  the service  shows. Even though the ratio of 1:1 is prescribed in regard to the substantive vacancies, direct recruitments were  made only  in the  years 1963, 1964, 1965 and 1966  and for  a decade  to follow  there was  no direct recruitment. When  demand for  more hands in the category of Deputy Tehsildars  became pressing  supernumerary posts were created from  time to  time and such posts were filled up by promotion. Rule  33(a) of  the General  Rules  dealing  with seniority, as far as relevant, provides:                "The seniority of a person in service, class,           category  or  grade  shall,  unless  he  has  been           reduced to  a  lower  rank  as  a  punishment,  be           determined by the date of his first appointment to           such   service,    class,   category    or   grade           ..............." Relying upon  this provision, seniority was being determined

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of promotees without taking into account the fact that there had been  intervening reversions  to the  lower  posts  from which promotion  to the  post of  deputy Tehsildar  had been granted.      The legal  position is  well-settled that  the State is entitled to  prescribe the  manner  of  computing  inter  se seniority and  in the absence of such prescription length of service is  the basis.  A series  of recent decision of this Court has made that position certain. Rule 33 of the General Rules contains  prescription  regarding  seniority  and  has different provisions  to meet  varying situations.  Sub-rule (a) which  provides that  seniority of  a person  is  to  be determined "by  the date  of his  first appointment  to such service" has  obviously been  mis-interpreted on  account of the presence  of the  words ’unless he has been reduced to a lower rank  as a  punishment’. It could not be the intention of Rule  33(a) to  compute seniority  from the date of first appointment even  though it  was not  a continuous  one. For instance, a  person is  appointed  to  the  post  of  Deputy Tehsildar on  promotion on  1st  of  January,  1970  and  is reverted to  the lower post, not by way of punishment but on account of  exigencies of  service or  otherwise, on 31st of March, 1970.  He is  again promoted  to  that  post  on  1st January, 1980 and continues 1125 to hold that promotional post. Another person is promoted to the  post  of  Deputy  Tehsildar  on  1st  April,  1970  and continues  to   hold  that   post  without   break.  If  the interpretation adopted by the State Government of Rule 33(a) is accepted,  it would mean that the first person on account of having  been first  appointed on  an earlier  date to the promotional post  would rank  senior to  the second  person. This obviously  could not  have been  the intention  of  the rule. It  is appropriate to interpret that rule to mean that the date  of first  appointment  is  intended  to  refer  to continuous appointment  only and  the words  ’unless he  has been reduced  to a  lower rank  by way  of  punishment’  are really redundant.  We are  aware of  the fact that this rule has been  widely applied  for determining inter se seniority and in  case challenge  to fixation of inter se seniority is permitted to  be  raised  on  what  we  have  stated  above, limitless litigation  would crop  up. We  would,  therefore, make it  clear that  the interpretation which we now give of this rule  shall have  prospective  application  and  unless there be  any litigation  already  pending  challenging  the interpretation of  this rule  no  new  litigation  would  be permitted on that score.      We have  already pointed out that the law is that it is open to the State to provide a rule for determining inter se seniority. Rule  4(e) of  the Special Rules before amendment in 1980 had provided that the seniority of Deputy Tehsildars would be  determined with reference to the date of allotment maintained and ranking assigned by the Andhra Pradesh Public Service Commmission  in the  merit list  of  the  particular selection. That obviously was confined to inter se seniority of direct  recruits and  did not  cover inter  se  seniority between recruits  of the two sources. Therefore, the General Rules had  been  relied  upon.  In  1980,  by  the  impugned amendment to  Rule 4(e)  of the  Special  Rules,  the  State Government prescribed  the  manner  of  providing  inter  se seniority among  the recruits  of the  two  categories.  The amended rule  provided  the  date  of  confirmation  in  the substantive vacancy  as  the  basis.  Rule  3(b)  fixed  the reservation of direct recruits with reference to substantive vacancies at  50% and  Rule 4(e),  therefore, made provision

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with reference to the seniority in the substantive vacancies with reference to the date of confirmation. The amendment in terms is  within the  competency of the State Government and is not  open to  challenge. This  is a  rule made  under the proviso to Article 309 of the Constitution and as settled by this Court  in exercise  of that power the rule can be given retrospective operation.  The impugned  amendment  has  been given retrospective  operation from 12th October, 1961. From the judgment  of the  Tribunal we find that the authority of the State  Government to  make a rule for future application was not seriously 1126 disputed but what was assailed was the retrospectivity given to the amendment.      Indisputably many  of the  promotees on  the  basis  of seniority already  assigned to  them have been holding posts of Tehsildars,  Deputy Collectors  and Special  Grade Deputy Collectors. Many  have retired  from service  having enjoyed those promotional benefits. Promotions between 1961 and 1971 on the  basis of  the seniority assigned under Rule 33(a) of the General  Rules is  under challenge.  That  period  is  a distant one  from now  varying between  17 to  27 years.  To allow the amendment to have retrospective operation is bound to create  problems. The State Government while amending the rule should  have taken  into  consideration  the  practical problems   which   would   arise   as   a   consequence   of retrospectivity. It  should have  taken into account the far reaching adverse  effect  which  the  rule,  if  given  such retrospective  effect,   would  bring  about  in  regard  to services of  scores of  employees and  the disquiet it would result  in   by  disturbing   settled  situations.  We  are, therefore, not  of the  view that  the rules should be given retrospective effect from 1961. It would, however, be wholly justified and  appropriate to  give  the  rules  prospective operation by fixing 9th October, 1980 as the date from which it should  take effect. We accordingly direct that Rule 4(e) as  amended  on  9th  October,  1980,  shall  not  have  any retrospective effect and would operate prospectively.      Though Rule  3(b) fixes  the ratio as 1:1 in respect of substantive vacancies,  the recruitment has not been regular and systematic.  We have come across several instances where the State  Government do  not take  steps to  give effect to their own  rules and, therefore, though there is one mode of prescription, in  action a  different situation  is  brought about. Rules have binding effect and they bind the State and the citizens alike once they are in force. In order that law may regulate conduct, the State has to feel bound by its own laws and  by willingly  abiding by  the law exhibit an ideal situation for  the citizens to emulate. We disapprove of the callous conduct  of the State and direct that the rule shall henceforth be followed scrupulously by effecting recruitment at regular  intervals according  to the  scheme of the rule. The State  shall within  four months  from today compute the substantive vacancies  in the  cadre and determine the quota of direct  recruits to  the rank  of Deputy  Tehsildars  and after working  out the  vacancies available  to be filled by the direct  recruitment on  the basis  of 50 per cent of the total number,  fill up the same by making direct recruitment within a period of four months thereafter. Once that is done and regular  recruitment is  effected, the impasse which has now been created would not continue. 1127 The State  is directed  to draw up the seniority list on the basis of rule 4(e) on or before 31st December, 1988. We have given a  long time  to eliminate the scope for making for an

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application for extension.      The Civil  Appeals are  dismissed. The  Writ  Petitions shall have also the same fate except to the extent that Rule 4(e) as  amended shall  have prospective application. In the Civil Appeals  we leave  the parties to bear their own costs throughout. There  would be  no order  for costs in the Writ Petitions. G.N.                        Appeals and Petitions dismissed. 1