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PETITIONER: P.GANESHWAR RAO & CO

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT05/09/1988

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) OJHA, N.D. (J)

CITATION:  1988 AIR 2068            1988 SCR  Supl. (2) 805  1988 SCC  Supl.  740     JT 1988 (3)   570  1988 SCALE  (2)588  CITATOR INFO :  RF         1990 SC1233  (13)

ACT:     Andhra   Pradesh  Panchayat  Raj   Engineering   Service (Special)  Rules,  1963--Recruitment to  post  of  Assistant Engineers--State   Government Notification dated  April  28, 1980-Amendment  of the rule--Whether  prospective--Held  not applicable  to  vacancies which had arisen before  the  said date.

HEADNOTE:     The  Public Service Commission invited applications  for direct   recruitment  against  51  vacancies  of   Assistant Engineers  in the Andhra Pradesh Panchayat  Raj  Engineering Service.  The number of vacancies was arrived at  under  the provisions  of the Andhra Pradesh Panchayat Raj  Engineering Service  (Special)  Rules 1963, on the basis  of  the  total number  of substantive as well as temporary vacancies  which had  arisen in the years 1978 and 1979. Explanation  (c)  in the  special Rules relating to the method of recruitment  of Assistant  Engineers, prior to its amendment  on  28.4.1980. provided  that  "out of every 8  vacancies  among  Assistant Engineers, the 2nd, 5th and 8th vacancies shall be filled in by  direct  recruitment ....". The amended  Explanation  (c) provided  that "37-1/2 of the substantive vacancies  arising in  the category of Assistant Engineers shall be  filled  by direct recruitment ...."     Some  of  the  officers who were  working  as  In-charge Assistant Engineers or Junior Engineers in the Panchayat Raj Department  Engineering Service made representations to  the state   Government  raising  objection  to  the  number   of vacancies  notified for direct recruitment, contending  that the 51 vacancies notified could not be filled up any  longer by  direct  recruitment  as, according tn  them,  after  the amendment of the Rules on 2X.4.1980, 37-l/2 per cent of only substantive   vacancies  could  be  filled  up   by   direct recruitment.  while  the vacancies notified had  taken  into consideration   temporary   vacancies   also   When    their representation failed to elicit any positive reply from  the State  Government,  they instituted a  petition  before  the Andhra Pradesh Administrative Tribunal.

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   Before  the Tribunal the State Government  pleaded  that the  amendment  made on 28.4.1980 to the Special  Rules  was only  prospective  in  effect  and  had  no  effect  on  the                                                    PG NO 805                                                    PG NO 806 vacancies which had arisen prior to that date. The  Tribunal rejected the contention of the State Government.     Setting aside the judgment of the Tribunal and remanding the case to it again, this Court,     HELD:  (1)  It is clear from the Special Rules  as  they were  in force prior to the amendment on 28.4.1980  that  it was open to the State Government to fill 37-1/2 per cent  of the vacancies (both substantive and temporary) in the  cadre of Assistant Engineers by direct recruitment. [811F]     (2)  The  crucial  words in the  Explanation  which  was introduced  by  way  of amendment in the  Special  Rules  on 28.4.1980 were "37-1/2 per cent of the substantive vacancies arising  in  the category of Assistant  Engineers  shall  be filled  by  direct recruitment. " The  introduction  of  the word  ’arising’ in the above clause made it applicable  only to  those vacancies which came into existence subsequent  to the date of amendment. [811H;812A-B]     (3)  This  Court  does not find any  indication  in  the amendment  that  was  made on 28.4.1980  that  it  would  be applicable  to the vacancies which had arisen prior  to  the date of the amendment even by necessary implication.[812E-F]     (4)  The amendment made on 28.4.1980 therefore does  not apply to the vacancies which had arisen prior to the date of the amendment. [813F]     Eramma  v. Verrupanna & Ors., [1966] 2 SCR 626 and  Y.V. Rangaiah  and Others v. J. Sreenivasa Rao & Ors.,  11983]  3 SCC 264, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2069 of 1982.     From  the  Judgment  and Order dated 23 4  1982  of  the Andhra  Pradesh  Administration Tribunal  in  Representation Petition No 508 of 1982. Mrs. C. Markandeya for the Appellants.                                                    PG NO 807 B. Kanta Rao and G.N. Rao for the Respondents. The Judgment of the Court was delivered by     VENKATARAMIAH, J. This appeal by special leave is  filed against  the Judgment dated 23.4.1982 of the Andhra  Pradesh Administrative Tribunal in Representation Petition No 508 of 1982 issuing a direction to the State Government to  refrain from   making  any  direct  recruitment  against   temporary vacancies  in  the cadre of Assistant  Engineers  under  the Andhra  Pradesh Panchayat Raj Engineering Service  (Special) Rules  (hereinafter referred to as ’the Special  Rules’)  as amended  by  G.O. Ms. No. 227 dated  28.4.1980  and  issuing certain  other ancillary directions. The facts of  the  case are as follows.     Recruitment to the Andhra Pradesh State and  Subordinate Services  was  governed  by the  Andhra  Pradesh  State  and Subordinate Services Rules, 1962 (hereinafter referred to as ’the  General  Rules’). Rule 6 of the  General  Rules  which dealt with the method of recruitment provided that where the normal  method  of  recruitment to  any  service,  class  or category was neither solely by direct recruitment nor solely by  transfer  but  was both by  direct  recruitment  and  by transfer, the proportion or order in which the special rules concerned  may  require vacancies to be  filled  by  persons

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recruited direct or by those recruited by transfer shall  be applicable  only to substantive vacancies in  the  permanent cadre. In those Rules the expression special rules meant the rules  in Part III of the General Rules applicable  to  each service  or  class  of service and  included  ad  hoc  rules applicable to temporary posts. On 23.3.1963 the Governor  of Andhra  Pradesh  promulgated  in  exercise  of  his   powers conferred by proviso to Article 3()9 of the Constitution  of India  the Special Rules providing for the  constitution  of and  the  method  of  recruitment  to  the  Andhra   Pradesh Panchayati  Raj  Engineering Service and the  Special  Rules were given retrospective effect from November 1, 1960  Under the   Special  Rules  the  Andhra  Pradesh  Panchayati   Raj Engineering  Service  was to consist of four  categories  of officers,  namely, Chief Engineer, Superintending  Engineer, Executive  Engineer  and  Assistant Engineer.  The  post  of Assistant Engineer was required to be filled up as follows: "4 Assistant    (1) By direct recruitment.    Engineer                or                 (2) By transfer from among                     (a) Junior Engineer ;or                                                    PG NO 808                      (b)Supervisors of the Andhra                         Pradesh Panchayati Raj                         Engineering Subordinate                         Service  ....................................................      (c) Out of every 8 vacancies among Assistant Engineers, 3  shall be filled up or reserved to be filled up by  direct recruits on the results of the competitive examinations  and the remaining 5 by transferees.     Note:  Rules 6, 8(a)(i) and 29(b) of the  General  Rules for the Andhra Pradesh State and Subordinate Services  shall not  apply  to  the appointment of  Assistant  Engineers  by direct  recruitment  in the Andhra  Pradesh  Panchayati  Raj Engineering Service  ......................................................     By  Notification bearing G.O.Ms. No 125 dated  28.5.1973 Explanation (c) in the Special Rules relating to the  method of  recruitment of Assistant Engineers was substituted by  a new explanation which read as follows:     "(c) Out of every 8 vacancies among Assistant  Engineers the 2nd, 5th and 8th vacancies shall he filled in by  direct recruits  on the results of the competitive examination  and the rest of the vacancies by transfer "     Thus  by the year 1978 the posts of Assistant  Engineers (now  designated  as  Deputy Executive  Engineers)  were  be filled  up either by direct recruitment or by transfer  from among Junior Engineers or Supervisors or Draftsmen Ist Grade of Andhra Pradesh Panchayati Raj Subordinate Service and  if no  qualified  or  suitable candidates  were  available  for recruitment  as  stated  above by transfer  from  any  other service or on tenure basis. Out of every eight vacancies  in posts  of Assistant Engineers the 2nd, 5th and  8th  vacancy had to be filled in by direct recruits on the result of  the competitive  examination  and the rest of the  vacancies  by transfer  The Special Rules further provided that  rules  6, 8(a)(i) and 29(b) of the General Rule would not apply to the appointment of Assistant Engineers by direct recruitment  in the  Andhra Pradesh Panchayati Raj Engineering  Service  and thereby  it  became permissible to the State  Government  to                                                    PG NO 809 take  into consideration the number of  temporary  vacancies also  in  addition to the subqs vacancies in  any  year  for purposes of recruitment. Three out of eight vacancies (which

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included both substantive and temporary vacancies) could  be filled up by direct recruitment. In other words 37- 1/2  per cent of the total number of vacancies (both substantive  and temporary  vacancies)  in the cadre of  Assistant  Engineers could  be  filled by direct recruitment. The Chief  Engineer of  the  Andhra Pradesh Panchayati Raj  Engineering  Service reported  to  the  State  Government  in  his  letter  dated 25.11.1979  that  the  total number of  posts  of  Assistant Engineers  (Permanent and Temporary) excluding  the  cyclone posts available were 203 by the end of May, 1979. Out of the said  203  posts the number of posts  available  for  direct recruitment  was  75  (203 x 3/8) and that out  of  them  38 vacancies of Assistant  Engineers had either been filled  in by  direct  recruitment or notified to  the  Public  Service Commission  for  selection and that the  balance  number  of vacancies  available for direct recruitment were 37 for  the years 1978 and 1979. Out of these 37 remaining vacancies, as 23 posts had been filled by Assistant Engineers selected  in direct   recruitment,   an  estimate  of  15  vacancies   of Assistant  Engineers  was furnished to  the  Public  Service Commission  on 3.6.1978. For the recruitment years 1978  and 1979  the  estimate of vacancies were due  with  the  Public Service  Commission  in the first week of May, 1978  and  of May,  1979. In accordance with the above rule then in  force the State Government took the decision in February, 1980  to notify  18 vacancies for the  recruitment year 1978  and  18 vacancies for the recruitment year 1979. The Chief  Engineer was  informed of the decision of the State Govern-  ment  to recruit  the  above said 18 plus 18, i.e., 36  vacancies  in addition to the 15 vacancies already notified to the  Public Service Commission and was asked to sent the zone-wise break up  of  vacancies  keeping  in view  the  rules  of  special representation  for  Scheduled  Castes,   Scheduled  Tribes, Backward  Classes  etc. After the receipt of  the  proposals from  the  Chief  Engineer  on  6.8.1981  the  estimate   of vacancies  for the years 1978 and 1979 was also sent to  the Public  Service  Commission  for  recruitment  of  Assistant Engineers.  In the meanwhile the Public  Service  Commission had  published an advertisement in or about September,  1980 inviting applications for recruitment of Assistant Engineers directly specifying 8.1.1981 as the last date for submitting the  applications. In that notification the  Public  Service Commission  had intimated that 15 vacancies  were  available for  recruitment as per the first communication received  by it   from  the  State  Government.  When  the   process   of recruitment  was in progress some of the officer.  who  were working as In-charge Assistant Engineers or Junior Engineers                                                    PG NO 810 in  the Panchayati Raj Department Engineering  Service  made representations to the State Government raising objection to the proposed direct recruitment of 51 Assistant Engineers on the  basis of the total number of substantive and  temporary vacancies  which  had  arisen in the  years  1978  and  1979 relying upon an amendment which had been made to the Special Rules   by  G.O.Ms.  No.  227  dated  28.4.1980   by   which Explanation  (c) and the proviso thereunder in  the  Special Rules had been substituted by the following explanation  and proviso:     "37-1/2  of  the substantive vacancies  arising  in  the category  of Assistant Engineers shall be filled  by  direct recruitment  on the results of the  competitive  examination and  the  remaining  62-l/2  by  promotion  or  transfer  as indicated under explanation (d) below ...."     Their  contention  was that the 51 vacancies  which  had been  notified to the Public Service Commission  for  direct

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recruitment  could  not be filled up any  longer  by  direct recruitment as according to them after the amendment of  the Rules on 28.4.1980 only 37- 1/2 per cent of the  substantive vacancies  could  be filled up by  direct  recruitment  They contended that the 5 1 vacancies which had been notified  to the Public Service Commission had been arrived at by  taking into consideration temporary vacancies also and that was not permissible  after  the amendment. They further  urged  that under  the  Special Rules, as amended on 28.4.1980,  only  8 vacancies could be filled up by direct recruitment When  the above  representation  made  by  them  did  not  elicit  any positive  reply from the State Government,  they  instituted Representation  Petition No. 508 of 1982 on the file of  the Andhra   Pradesh  Administrative  Tribunal  for   injunction restraining  the  State Government and  the  Public  Service Commission from recruiting 51 persons as direct recruits  to the cadre of Assistant Engineers The petition was opposed by the  State Government It pleaded that the amendment made  on 28.4  1980  to  the Special Rules was  only  prospective  in effect  and had no effect on the vacancies which had  arisen prior  to  the  date on which the amendment  was  made  and, therefore,  it was open to the State Government to  fill  by direct  recruitment 37- 1/2 per cent of the total number  of vacancies (substantive as well as temporary) in the cadre of Assistant  Engineers which had arisen before the  amendment. The Tribunal rejected the contention of the State Government and  held  that  it  was  not  permissible  for  the   State Government to make recruitment to the 51 vacancies after the Special Rules were amended on 28.4.1980 irrespective of  the fact that the vacancies in question had arisen prior to  the                                                    PG NO 811 date of the amendment. Accordingly the Tribunal directed the State  Government  and  the  Public  Service  Commission  to refrain  from  making  any direct  recruitment  against  the temporary  vacancies  in the Andhra Pradesh  Panchayati  Raj Engineering  Service contrary to the Special Rules  as  they stood  amended from 28.4.1980. Aggrieved by the decision  of the  Tribunal some of the candidates, who had been  selected by  the  Public Service Commission as  Assistant  Engineers, filed  a special leave petition in this Court under  Article 136  of the Constitution of India requesting this  Court  to grant  special leave to appeal against the judgment  of  the Tribunal.  On 4.6.1982 this Court granted special  leave  to appeal against the judgment of the Tribunal and also  stayed the  operation of the judgment of the  Tribunal.  Thereafter the  State Government issued a notification bearing  G.O.Ms. No.   525  dated  30.10.1982  appointing   the   appellants, respondent  No. 4 and 48 others as Assistant Engineers  (now called Deputy Executive Engineers) on temporary basis  under rule  10(a)(i)(1)  of  the  General  Rules.  44  of  the  51 candidates  so appointed joined service as Deputy  Executive Engineers. All those who joined the service accordingly have continued  to  be  in the service of  the  State  of  Andhra Pradesh till now.     It  is  not necessary for purposes of this  judgment  to decide  all  the contentions which had been  raised  by  the petitioners who had filed the representation petition before the   Andhra  Pradesh  Administrative  Tribunal  since   the Tribunal  has  allowed  the petition  only  on  one  ground, namely, that the recruitment in question was governed by the Special  Rules as amended on 28.4.1980 and not by the  rules which were in force when the vacancies in question arose.     It is clear from the Special Rules as they were in force prior to the amendment on 28.4.1980 that it was open to  the State  Government to fill 37-1/2 per cent of  the  vacancies

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(both  substantive and temporary) in the cadre of  Assistant Engineers  by direct recruitment It is also not  in  dispute that  during  the years 1978 and 1979 the  position  of  the vacancies  was  such that it was permissible for  the  State Government  to  appoint  51 Assistant  Engineers  by  direct recruitment.   The  only  question  which  has  now  to   be considered is whether the amendment made on 28.4.1980 to the Special Rules applied only to the vacancies that arose after the  date on which the amendment came into force or  whether it applied to the vacancies which had arisen before the said date  also. The crucial words in the Explanation  which  was introduced  by  way  of amendment in the  Special  Rules  on 28.4.1980 were "37-1/2 per cent of the substantive vacancies arising  in  the category of Assistant  Engineers  shall  be                                                    PG NO 812 filled  by the direct recruitment". If the above clause  had read  "37- 1/2 per cent of the substantive vacancies in  the category  of  Assistant  Engineers shall be  filled  by  the direct  recruitment" perhaps there would not have been  much room for discussion. The said clause then would have applied even to the vacancies which had arisen prior to the date  of the  amendment but which had not been filled up before  that date.  We  feel that there is much force in  the  submission made  on behalf of the appellants and the  State  Government that  the  introduction of the word ’arising’ in  the  above clause made it applicable only to those vacancies which came into existence subsequent to the date of amendment.     In Eramma v. Verrupanna & Ors., [1966] 2 S.C.R. 626  the words  "the property of a male Hindu dying  intestate  shall devolve  according  to the provisions of  this  Chapter"  in section  8  of the Hindu Succession Act, 1956  came  up  for consideration.  In that case this Court held that the  words "the property of a male Hindu dying intestate shall devolve" occurring in section 8 made it very clear that the  property whose  devolution was provided for by that section  must  be the property of a person who had died after the commencement of the Hindu Succession Act and it could not be the property which belonged to a Hindu male who had died before the  said Act  came  into  force The effect of the  use  of  the  word ‘arising’   in  the  Special  Rules  qualifying   the   word ‘vacancies’   is  also  the  same.  The  clause  which   was introduced  in  the Special Rules by the amendment  made  on 28.4.1980  cannot, therefore, be interpreted as  having  any effect  on the vacancies which had arisen prior to the  date of  the  amendment.  We do not find any  indication  in  the amendment  that  was  made on 28 4 1980  that  it  would  be applicable  to the vacancies which had arisen prior  to  the date  of the amendment even by necessary implication In  the instant  case  the State Government had taken  the  decision even  before the amendment came into  force to fill  up  the vacancies  by  direct  recruitment  according  to  the   law prevailing  then.  Had it been the intention  of  the  State Government,  while  promulgating  the  amendment  that   the amendment  should be applicable to the vacancies  which  had arisen prior to the date of the amendment simultaneously the State Government would have addressed a letter to the Public Service  Commission to make recruitment in  accordance  with the Special Rules as amended on 28 4.1980 No such action was taken by the State Government in this case.     We  may at this stage refer to another decision of  this Court in Y. V. Rangaiah and Others etc. v. J. Sreenivasa Rao and  Others,  [ 1983] H 3 S.C.C. 264 in which in  a  similar situation this Court has observed in Paragraph 9 at page 289 thus:                                                    PG NO 813

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   "The vacancies which occurred prior to the amended rules would  be governed by the old rules and not by  the  amended rules.  It is admitted by counsel for both the parties  that henceforth  promotion to the post of Sub-Registrar Grade  II will  be according to the new rules on the zonal  basis  and not  on  the State-wide basis and, therefore, there  was  no question of challenging the new rules But the question is of filling  the  vacancies that occurred prior to  the  amended rules. We have not the slightest doubt that the posts  which fell vacant prior to the amended rules would be governed  by the old rules and not by the new rules "     The facts of the case before us are in no way  different from the facts involved in the above decision     In  view  of the foregoing we are of the view  that  the observations  made by the Tribunal to the following  effect, namely:     "In  this  case  the rules  for  recruitment  have  been changed  on  28.4.1980. Hence, prima facie it would  not  be legal   to   make  direct  recruitment   against   temporary vacancies,  even  if the vacancies were at an  earlier  date ear-marked   for   direct  recruits   .........   In   these circumstances, there is, in my opinion, no scope for  direct recruitment  against  temporary vacancies  after  28.4.1980, i.e.,  the  date on which the rules were amended  as  stated above." are  unsustainable. We hold that the amendment made on 28  4 1980) does not apply to the vacancies which had arisen prior to the date of the amendment     We  accordingly set aside the judgment of  the  Tribunal and  remand the case to it again to decide in the  light  of the above observations the other contentions which had  been raised  by  the  persons who had  filed  the  Representation Petition  before the Tribunal and to dispose of the case  on the  basis  of the findings to be recorded by  it  on  those contentions     The appeal is accordingly disposed of. There is no order as to costs. R.S.S.                                   Appeal disposed of.