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PETITIONER: M. VENKATESWARLU ETC.

       Vs.

RESPONDENT: THE GOVERNMENT OF ANDHRA PRADESH &ORS. ETC.

DATE OF JUDGMENT:       12/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 SCC  (5) 167        JT 1996 (3)   439  1996 SCALE  (3)44

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CIVIL APPEAL NO. 4416 OF 1996                -----------------------------           (Arising out of SLP (C) No.7034 of 1995)                       J U D G M E N T K. Ramaswamy, J.      Leave granted. C.A. No. 4415/96 ---------------- (@ SLP (C) No. 13653/94)      Appellant was  appointed as  L.D.C. on January 21, 1975 in the Revenue Establishment of Prakasam District in A.P. He was promoted as a U.D.C. (Senior Assistant) in 1982 and as a Dy. Tehsildar  on June  20, 1984.  The panel  effective from July 1,  1983 for  regular promotion was to be drawn for the regular promotion  was to  be drawn for the year 1983-84. At that time  he was  short of  one year  and three  months for purpose of  total service of eight years; and of five months for purpose  of period  of two years as Senior Assistant for regular  promotion   as  a   Dy.  Tehsildar.  His  name  was recommended for  consideration of  promotion  for  the  year 1986-87. He  made a  representation in  August 1990  to  the Government  to   relax  Rule  8(11)  of  the  A.P..  Revenue Subordinate Service  Rule (for  short, ’Special  Rules’)  to impanel him for the year 1983-84. The District collector and the  Commissioner,   Land  Revenue   recommended   for   the relaxation. The  Government exercising  the power under Rule 47 of  the A.P.. State Subordinate Service Rules (for short, ’General Rules)  issued the  orders  in  G.O.M.S.  No.  792, Revenue  (SER.   III)  Department,  dated  28.7.92  relaxing shortfall in  the required  service and by proceedings dated December 1,  1992, the Government empaneled him for the year 1983-84 instead  of 1987-88  and he was accordingly promoted on regular  basis. The  respondents came  to  challenge  the relaxation given  to him for the year 1983-84. When the O.A.

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had come  up for  final hearing,,  the Division Bench by its order dated  October 26,  1993 had held that by operation of Rule 22 of the General Rules read with Rule 6 of the Special Rules, the appointment by transfer or promotion is available and  that   appellant  was  entitled  to  promotion  as  Dy. Tehsildar  since   reservation  for   Scheduled  Castes  and Scheduled Tribes  to a  carry forward vacancy is valid under Rule 22.  However,  since  it  was  found  that  there  were conflicting decisions  on application  of  Rule  22  of  the General Rules  to the carry forward vacancies, reference was made to  the Full  Bench. The  Full Bench by majority in the impugned order  dated April 7, 1994 has held that Rule 22 of the General  Rules does not apply to carry forward vacancies for appointment  by  promotion  or  transfer.  Retrospective relaxation under  Rule 47 of the General Rules is illegal as relaxation   cannot   retrospectively   be   given   effect. Accordingly, the  Tribunal  dismissed  the  O.A.  Thus  this appeal by special leave.      Shri A.  Subba Rao,  learned counsel  for the appellant contended that Rule 22 of the General Rules read with Rule 5 of the  Special Rules  gives power  to the  State to appoint members of  the Scheduled  Castes and  Scheduled Tribes to a vacancy or  a post  in a  service or  classes of  service by virtue of  application of  rule of  reservation not  only to initial recruitment but also for appointment by promotion or transfer. The  question of  carry forward  arises only  when candidates  belonging  to  Scheduled  Castes  and  Scheduled Tribes who  were  to  get  adequate  representation  in  the service or  class of  posts are  not  available.  Relaxation under Rule  47  would  always  be  retrospective  since  the requisite conditions  prescribed under  the Rules  cannot be complied with before action is taken. Consequently, the view of the  Full Bench  is not correct in law while the Division Bench had correctly interpreted the rule of reservation.      Ms. K.  Amareshwari, learned  senior counsel  appearing for the  State, supported  the stand  of the appellant. Shri P.P. Rao,  the learned  senior  counsel  appearing  for  the contesting  respondent,   contended  that   though  Rule  of reservation contemplated  under Rule 22 of the General Rules would be applicable to appointment by promotion or transfer, the exercise of the power of relaxation under Rule 47 is bad in law.  According to  the learned  counsel, no injustice or inequality as  envisaged in Rule 47 is made out; its benefit should be  given only  to a  class  of  persons  by  general relaxation as is contemplated in that behalf but not in an individual case.  The appellant had not pointed out any such injustice. His  only contention  is that  relaxation may  be given and  he may  be made eligible for relaxation which may not  be   given  in  individual  cases.  Completion  of  the prescribed length of service is a condition of service which cannot be  relaxed. An  ineligible  person  cannot  be  made eligible by  relaxing Rule  47. No  notice was  given to the affected persons  before exercising the power under Rule 47. By exercise  of the power to grant relaxation, the appellant is made  senior over  several persons  in the  category as a Senior Assistant stealing a march over the senior U.D.Cs. in his promotional  post of  Dy.  Tehsildar.  Their  legitimate hopes and  expectations cannot  be upset by exercising power under Rule  47. The  Government did  not give any finding of injustice and inequality to be done to a class of persons or at least  to the individual appellant. Though Rule 47 may be valid the  exercise of power is vitiated by error of law. On that premise,  he seeks  to support the judgment of the Full Bench.      Having  given   our  anxious   consideration   to   the

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respective contentions,  the question  arises: whether  Rule 22(ii)(e) to  (g) would  be  applicable  to  appointment  by promotion or  transfer? This point is no longer res integra. In a  recent judgment  in Commissioner  of Commercial Taxes, A.P.. &  Anr. vs. G. Sethumadhava Rao & Ors. [1996 (1) SCALE 721] interpreting  Rule 22  of the  General Rules this Court has held that Rule 5 of the A.P.. Commercial Tax Subordinate Service Rules  envisages applicability  of Rule  22  of  the General Rules for appointment to the above service. Conjoint reading of  the two  provisions postulates  that the carried forward vacancies  and current  reserved  vacancies  in  the recruitment year  shall be  available for  utilization  even where the  total number  of such  reserved vacancies exceeds 52% of  the vacancies  filled that  year in case the overall representation of  the Scheduled Castes and Scheduled Tribes in the total strength of the concerned grade or cadre, class or  classes  of  service  has  not  reached  the  prescribed percentage of reservation of 16% for Scheduled Castes and 7% for Scheduled  Tribes, as  the case  may be. By operation of Article  16(4A)   of  the  Constitution  introduced  by  the Constitution (77th  Amendment) Act,  1995  w.e.f.  June  17, 1995, the  principle of  reservation in  promotions would be applicable where  the Scheduled  Castes and Scheduled Tribes are not adequately represented in promotional posts in class or  classes  of  services  under  the  State.  The  rule  of reservation by  promotion is consistent with Articles 14 and 16(1) and  (4) to  provide equality  of opportunity  to  the Scheduled Castes  and Scheduled  Tribes. Rule  22(ii) of the General Rules is quite wide enough to bring within its ambit the appointment  by promotion  or transfer.  The  object  of carry forward  is to  avoid lapse  of the posts when persons qualified and eligible for appointment by promotion were not available. It  is settled  law that  recruitment consists of three modes  - direct recruitment, promotion and by transfer - defined under the General Rules.      The finding  of the Full Bench, therefore, that Rule 22 of the  General  Rule  does  not  apply  to  appointment  by promotion or  transfer is  clearly inconsistent with Rule 22 (ii) which  envisages appointments "otherwise than by direct recruitment".    Therefore,  we  hold  that  appointment  by promotion or  by transfer  is  available  to  carry  forward vacancies in  the post of Dy. Tehsildar. Sri Rao, therefore, has not  rightly canvassed  the correctness  of the Division Bench decision.      The  question  then  is:  whether  the  Government  was justified in  exercising the  power under  Rule  47  of  the General Rules? This point too is no longer res integra. This Court considered  the scope  of  Rule  47  in  the  case  of Government of  A.P. &  Ors. vs. Sri D. Janardhana Rao & Anr. [(1977) 1  SCR 702].  After extracting  Rule 47 at page 706, this Court had held that:      "The real question that requires to      be  decided   in  this   appeal  is      whether rule  47 permits relaxation      to  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

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    for   the   different   years   was      regularized. The order made on June      30, 1971  relaxed rule 49(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      operation.           Rule 47  of the Andhra Pradesh      State  and   Subordinate   Services      Rules gives  power to  the Governor      to relax  the  rigor 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   Service      (Medical Attendance)  Rules,  1938,      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  dawn 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      retrospective effect, otherwise the      object and purpose of the rule will      be largely frustrated."      Thus it could be seen that the Governor is empowered to relax the  rigor of  the General Rules in such manner as may appear to  him to  be just  and equitable in the interest of justice and  equity. Justice  can be done only by exercising the power retrospectively. Otherwise, the object and purpose of the  Rule 47  will be  largely frustrated. The finding of the Full  Bench of  the Tribunal  that  Rule  47  cannot  be exercised retrospectively is, therefore, clearly illegal.      The  next  question  is:  whether  the  Government  had addressed to itself the real issue of justice or inequality? It is  true that  from a reading of the order the Government do not  appear to have been angulated from that perspective. But the  conclusion can  be supported by the facts available in the case. It is seen that under Rule 22(ii)(g), the carry forward of  the reserved  backlog vacancies  could be  for a period of  three years  and when  the vacancies could not be filled up  at the  end of  the third year, the Government is required to  consider whether  the vacancies would be thrown

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open to  the  general  candidates  dereversing  the  backlog vacancies. Due  to the  non-availability  of  the  qualified candidates  the   Government   instead   of   resorting   to dereservation of  the vacancies, appears to have relaxed the rigor of Rule 8 (a)(ii) of the Special Rules which envisages that the candidate has to put in minimum of total service of eight years  and a  minimum service of two years as a Senior Assistant. The  annexure referred to in Rule 8(a)(ii) of the Special Rules is to the following effect:      "Must have  served for  a period of      not   less    than   eight    years      (including  services   as   Revenue      Inspector  prescribed   in   clause      (iii) below  in a post not lower in      rank than  the  category  of  Lower      Division Clerk,  two years of which      should have  been in the post of an      Upper Division Clerk:      Provided that  the  Upper  Division      Service rendered by a member of the      District Revenue  Establishment  or      any  other  Department,  office  or      special duty,  shall be  counted to      the extent  to which he should have      counted as  Upper Division Clerk in      the  regular   line  but   for  his      appointment as Upper Division Clerk      elsewhere.      In this  case, the  appellant fell short of five months service for  purpose of  period of  two years  as  a  Senior Assistant and  of one  year and  five months  for purpose of total service  of eight  years in the Revenue Department. In view of the huge backlog of reserved vacancies on account of non-availability  of   Scheduled   Castes/Scheduled   Tribes candidates, the  Government  appears  to  have  intended  to relieve the  injustice to  the  appellant  by  relaxing  the prescribed period  of service under Rule 8(ii) read with the annexure. It is not in dispute that the appellant had passed all  the   prescribed  tests  well  within  time.  The  only ineligibility was  as regards  completion  of  the  required period of  service. It  is settled  law that  the Government cannot relax  the basic  qualifications but in an individual case they  can relax, in an appropriate case, the conditions of service.  It is seen that the appellant having passed all the tests, he was required to fulfill the condition of total service of  eight years  and minimum service of two years as Senior Assistant.  Therefore, with  a view  of fill  up  the backlog vacancies which, as rightly pointed out by Shri P.P. Rao,  undisputably   is  a  constitutional  obligation,  the Government appears to have exercised the power under Rule 47 by condoning  the deficiency  of requisite length of service though no  specific finding in that behalf was recorded. The test of  justice and  equity envisaged  in Rule  47 is to be understood in  this background. Relaxation may be given to a class of persons or an individual.      The question then is: whether notice to all the persons who are  likely to be affected is required before exercising the power  under  Rule  47?  The  rule  ex  facie  does  not contemplate any  notice being  given. It  is not  a case  of considering inter se claim of any particular individuals. It is a case of relaxing the eligibility of a single individual as against  many. Under these circumstances, we do not think that the  rule envisages notice to all the affected persons. It is  true that  in the  cadre  of  Senior  Assistant,  the respondents were  seniors to the appellant. But by operation

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of Rule  22 read  with Articles 16(1), 16(4) and 16(4A), the appellant by  promotion as  reserved candidate would steal a march over  his seniors  in the lower cadre and would become senior as Deputy Tehsildar.      By operation  of protective  discrimination,  a  Junior officer belonging  to Scheduled  Castes or Scheduled Tribes, by operation  of Article  16(1) read with Articles 16(4) and 16(4A) would steal a march over his erstwhile seniors in the lower  cadre  and  get  promotion.  Thereby,  the  appellant becomes senior  in  the  promotional  post,  namely,  Deputy Tehsildar. By  operation of Rule 33(a) of the General Rules, his seniority would be determined with reference to the date on which  he discharged  the duties  in the  post of  Deputy Tehsildar. The  consequence is inevitable due to application of Rule  22 of  the General  Rules read  with Rule  6 of the Special Rules.  Therefore, it  is not  necessary to give any notice to  all the  affected parties  before exercising  the power under Rule 47 of the General Rules.      The  appeal   is  accordingly   allowed.  But   in  the circumstances without costs. C.A. No.4416/96 --------------- (@ SLP (C) No.7034/95)      The controversy  raised in  this case  is no longer res integra. The  ratio of  this Court  in The  Commissioner  of Commercial Taxes, A.P., Hyderabad & Anr. vs. G. Sethumadhava Rao &  Ors. [1996  (1) SCALE  721] squarely  applies to  the facts in  this case.  In view of the above discussion and in view of  the ratio of G. Sethumadhava Rao’s case, the appeal is allowed but, in the circumstances, without costs.