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CASE NO.: Appeal (civil)  4917 of 2000

PETITIONER: Santosh Kumar                                            

RESPONDENT: Vs. State of Andhra Pradesh & Ors.                   

DATE OF JUDGMENT: 22/05/2003

BENCH: Shivaraj V. Patil & Arijit Pasayat       

JUDGMENT: J U D G M E N T

SHIVARAJ V. PATIL J.

       The Division Bench of the High Court by the common  impugned order disposed of Writ Petition Nos. 34839,  35775 of 1997 and 6758 of 1998.  This appeal is filed  by the respondent No.4 in W.P. No. 35775/97.  Some of  the Head Constables including the respondent No. 4  herein (hereinafter referred to as ’respondent’) in  this appeal were appointed temporarily as out of  seniority, Sub-Inspector (OSSI) w.e.f. 3.12.1983  without following recruitment rules.  The appellant was  appointed as direct recruit on 12.9.1985.  Between 1996  and 1997, the Government of Andhra Pradesh issued  various Government Orders relaxing relevant recruitment  rules in favour of the respondent and others  regularizing their services with effect from the date  of their temporary appointments affecting the seniority  of the appellant.  The appellant challenged the same  before the A.P. Administrative Tribunal.  The Tribunal  held that the State Government had power to relax the  recruitment rules with retrospective effect but  however, the Tribunal held that the services rendered  by the respondent and other similarly placed persons  could not be counted as officiating service for  determining their seniority as their appointment was  not in accordance with the rules and they had not  qualified for appointment.  Aggrieved by the order of  the Tribunal, the respondent and other promotees filed  writ petitions before the High Court. The High Court,  by the impugned order, allowed the writ petitions  holding that the recruitment rules could be relaxed  with retrospective effect.  The High Court also held  that even if their initial appointment was not made by  following the procedure laid down by the rules, they  had continued in the post uninterruptedly till their  services were regularized by relaxing the rules and so  their officiating services had to be taken into account  for the purpose of seniority.  Hence, this appeal is  filed questioning the validity and correctness of the  impugned order of the High Court.

       It may be useful to notice few more facts.

       The substantive posts of Sub-Inspectors of Police

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were calculated and apportioned between direct recruits  and promotees in 1983.  According to the Special Rules,  promotees could not exceed 30% of the cadre.   There  were 200 vacancies out of which 65 were allotted to the  promotees and 127 to direct recruitment.  The appellant  and the other direct recruits were appointed on  12.9.1985 after selection made by APPSC.  They  underwent training and passed all the tests at the end  of training.  The Government issued various orders in  1996-97 relaxing the relevant recruitment rules in  favour of the respondent and few others regularizing  their services with effect from the date of their  temporary appointment.  Pursuant to the said orders,  the Commissioner of Police issued orders regularizing  the services of the respondent and other respondents  similarly placed with effect from the date of their  temporary appointment. Under these circumstances, the  appellant and other direct recruits filed O.As. before  the A.P. Administrative Tribunal challenging the  relaxation of the Rules and the consequential  regularization of the services of the respondent and  others.  The Tribunal partly allowed the O.As. holding  that the Government were competent to relax the rules  in exercise of the powers conferred under Rule 47 of  the A.P. State & Subordinate Service Rules, 1962 (for  brevity ‘General Rules) relating to service conditions  with retrospective effect.  However, by referring to  the various decisions of this Court, the Tribunal took  the view that the services rendered by the respondent  and other OSSIs could not be counted as officiating  service for determining their seniority as their  appointments were not in accordance with the rules,  they were not qualified for the appointment and that  retrospective regularization of their services  adversely affected the interest of the appellant and  others who were regularly appointed as direct recruits.   In the view it took, the Tribunal held that the  impugned orders, to the extent they affected the  seniority of the appellant and others, were invalid.   The respondent and other promotee OSSIs filed writ  petitions before the High court against that part of  the order of the Tribunal.

       As already noticed above, the High Court allowed  the writ petitions holding that the recruitment rules  relating to the conditions of service could be relaxed  with retrospective effect and even if their initial  appointments were not made by following the procedure  laid down by the rules, the officiating services of the  promotees could be counted for the purposes of  seniority as they continued in the post uninterruptedly  till the regularization of their services.

       Shri L.Nageshwara Rao, the learned Senior Counsel  on behalf of the appellant urged that it was not  permissible to relax the basic recruitment rules with  retrospective effect; a person who was not appointed in  accordance with the rules, was not entitled to  seniority from the date of his temporary appointment.   According to him, even if appointment could be made as  OSSIs from Head Constables by relaxing the rules  relating to qualification etc., such relaxation could  not affect the seniority of the direct recruits who  were appointed on regular basis after selection by  APPSC.  He took us through various rules and Government

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Orders in support of his submissions.

       On the other hand, Shri M.N.Rao, the learned  Senior Counsel for the respondent made submissions  supporting the impugned judgment and justifying the  reasons recorded in the judgment in allowing the writ  petitions.  According to learned Senior Counsel, the  State Government had powers to relax the rules with  retrospective effect.  Learned counsel for the State  while adopting the arguments of Shri M.N.Rao supported  the impugned order.         We have carefully considered the submissions made  on either side.  Before the Tribunal it was conceded  that the Government have power to relax rules under  Rule 47 of the General Rules, but, however, it was  contended that the basic rules of recruitment i.e. A.P.  Police Subordinate Service Rules (for short ‘Service  Rules’) could not be relaxed in exercise of the power  under the said Rule.  Having regard to the facts of the  case on hand, relevant Rules and law laid down by this  Court the Tribunal concluded that there was no  relaxation of basic qualifications but there was only  relaxation of the conditions of service in the case of  the respondent in regularizing the services with  retrospective effect as Sub-Inspector.  In paragraph 21  of the judgment the Tribunal stated that it is well- settled law that the Government in exercise of powers  conferred on them under Rule 47 of the General Rules  can relax the rules of appointment and such relaxation  could be with retrospective effect.  Reference was also  made to the case of this Court in M. Venkateshwarlu and  others vs. Government of A.P. and others [(1996) 5 SCC  167] holding that Rule 47 ex facie does not contemplate  any notice being given in case of relaxation of  eligibility of a single individual for promotion to the  post of Deputy Tehsildar; it was not necessary to issue  a notice to all affected parties in such a case.   However, the Tribunal held that as the appointment of  the respondent and others as OSSIs was not in  accordance with the Rules and their appointments were  not made after considering the case of other eligible  persons as per Service Rules, their services could not  be taken into consideration while determining the  seniority in the cadre of Sub-Inspectors.  Finally, the  Tribunal concluded that the unofficial respondents in  the O.As. could claim to be regularly appointed as Sub- Inspectors only from the dates on which the Government  have issued orders relaxing the service rules; any  notional dates of relaxation given to them affecting  the seniority of regularly appointed Sub-Inspectors  prior to the date of relaxation of Rules could not be  held valid. In other words, the Tribunal held that the  Government have power to relax the Rules with  retrospective effect for the purpose of appointment and  promotion but the seniority could not be assigned to  them prior to the date of regularization of services  affecting the seniority of others, who are regularly  appointed prior to date of their regularization.  In  our view, the Tribunal was not right in saying that any  notional date of relaxation was given to the respondent  affecting the seniority of the appellant.  In fact,  service of the respondent was regularized from the  actual date on which he was temporarily promoted as  OSSI which was permissible in terms of para 47(B) of  the Constitution Bench judgment of this Court in

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Recruit Class II Engineering Officers’ Association vs.  State of Maharashtra and others [(1990) 2 SCC 715].   Moreover, the promotion given to the respondent was in  promotee quota which did not affect the appellant who  was recruited later as a direct recruit.  It may be  mentioned that there was no direct recruitment in the  year 1983-84 to the post of Sub-Inspector when services  of the respondent and others were regularized.  The  appellant was recruited in the year 1985 i.e.  subsequent to the date on which the respondent started  working actually as OSSI though temporarily.  In this  view, the question of affecting the seniority of the  appellant without notice did not arise.         We may state here itself that the Tribunal did not  record a finding whether the services of the unofficial  respondents were regularized as against the vacancies  meant for promotees or not.         The High Court in para 7 of the judgment has  recorded a clear finding that the services of the  respondent and others were regularized in respect of  the vacancies available in the quota meant for the  promotees after observing, thus: - "7.     There is another aspect on which  no arguments were addressed across the  Bar and learned Tribunal has also not  recorded any finding.  In these cases,  the petitioners herein made a specific  assertion that the regularization of  their services with effect from their  initial date of temporary appointment  was done within the 30% quota allocated  to the promotees.  There is no specific  denial of this fact in the counter  affidavit filed by the non-official  respondents herein before the Tribunal  though an attempt was made to show that  when the petitioners herein were  promoted there were no vacancies  available within the quota of the  promotees and that those appointments  were made in the vacancies meant for  direct recruits as there was some delay  in finalization of the appointments by  direct recruits.  But there is no  specific assertion that as on their date  of appointment, vacancies in the  promotees quota were not available for  the purpose of regularizing the services  of the petitioners herein.  In fact, on  behalf of the Government respondent No.  1 the Assistant Secretary, Home filed an  additional counter affidavit in the  Tribunal specifically supporting the  contention of the petitioners herein  that the regularization of their  services was made in respect of  vacancies available out of the quota of  the promotees.  The Tribunal has not  recorded any finding on this aspect.   This question was not addressed in this  Court by the learned counsel for the  unofficial respondents herein.  For the  purpose of these writ petitions and in  the absence of any clinching material,  the statement made in the affidavit

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filed on behalf of the Government has to  be accepted and it must be presumed that  the regularization directed to be  effected under the impugned G.Os. was in  respect of the vacancies available in  the quota meant for the promotees."

Some arguments were advanced before us to contend that  the regularization of services of the respondent and  others was not against the quota meant for promotees.   In view of what is stated in paragraph 7 of the  impugned judgment, extracted above, and, particularly,  when no argument was advanced before the High Court in  this regard, it is not possible to accept the  contention put forth on behalf of the appellant  disputing the position that the regularization of  services of the respondent was against the quota meant  for promotees.           Rule 47 of the General Rules and corresponding new  Rule 31 of 1996 Rules read: - "47. Relaxation of Rules by the  Governor.  No rule made under the  proviso to Article 309 of the  Constitution of India or contained under  Article 313 of that Constitution shall  be construed to limit or abridge the  power of the Governor to deal with the  case of any class or category of persons  for being appointed to any civil post,  or of any person who is serving or has  served 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  applicable to the case of any person or  a class of persons, the cases shall not  be dealt with in any manner less  favourable to the person or class of  persons than that provided by that  rule."

"31. Relaxation of Rules by the  Governor.  Notwithstanding anything  contained in these rules or in the  special rules, the Governor shall have  the power to relax any rules contained  in these rules or Special Rules, in   favour of any person or class of  persons, in relaxation to their  application to any member of a service  or to any person to be appointed to the  service, class or category or a person  or a class of persons, who have served  in any civil capacity in the Government  of Andhra Pradesh in such manner as may  appear to be just and equitable to him,  where such relaxation is considered  necessary in the public interest or  where the application of such rule or  rules is likely to cause undue hardship  to the person or class of persons  concerned."

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Based on the language and content of Rule 47 of General  Rules and in the light of the decisions of this Court  the Tribunal as well as the High Court have firmly  concluded that the State Government have power to grant  relaxation of Rules with retrospective effect.   A Constitution Bench of this Court in Direct  Recruit Class II Engineering Officers’ Association‘s  case (supra), after considering various aspects and  earlier decisions, summed up the conclusions in  paragraph 47 of the judgment.  For our purpose paras  (A) and (B) of the said paragraph are relevant, which  are extracted hereunder: - "47.    To sum up, we hold that: (A)     Once an incumbent is appointed to a  post according to rule, his  seniority has to be counted from  the date of his appointment and not  according to the date of his  confirmation.         The corollary of the above rule is  that where the initial appointment  is only ad hoc and not according to  rules and made as a stop-gap  arrangement, the officiation in  such post cannot be taken into  account for considering the  seniority. (B)     If the initial appointment is not  made by following the procedure  laid down by the rules but the  appointee continues in the post  uninterruptedly till the  regularization of his service in  accordance with the rules, the  period of officiating service will  be counted."

The respondent and others were appointed as Sub- Inspectors out of seniority looking to the outstanding  merit and record prior to the direct recruits like the  appellant.  Their services were admittedly regularized  by relaxing the Service Rules in exercise of power  available under Rule 47 of the General Rules.  The  appellant did not challenge the validity of Rule 47 and  no malafides were established against the authorities  in exercise of powers of relaxation under the said  Rule.  The Tribunal has recorded a finding that the  rule relating to the method of recruitment was not  relaxed but only the conditions which had to be  fulfilled for the purpose of promotion to the category  of Sub-Inspector were relaxed; this finding is not  disturbed by the High Court; there was no relaxation as  to the basic qualification; the State Government  regularized the services of the respondent and others  with retrospective effect from the date they were  temporarily appointed as Sub-Inspectors (OSSIs).   It  is also not disputed that they continued in service  uninterruptedly for about 12-13 years till their  services were regularized with retrospective effect.   This being the factual position it could not be said  that the corollary to paragraph 47(A) of the  aforementioned Constitution Bench judgment applies to  the facts of the present case.  Once their services  were regularized it cannot be contended that their  initial appointment was only on ad hoc basis and not

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according to the Rules and made as a stop-gap  arrangement.  On the other hand paragraph 47(B)  supports the case of the respondent.         This Court had occasion to consider the power of  Government to relax the service rules under Rule 47 of  General Rules in Government of Andhra Pradesh and  others vs. Sri D. Janardhana Rao and another [(1976) 4  SCC 276].  In that case a panel of Deputy Tehsildars  for promotion to the cadre of Tehsildars was prepared.   The rules at the relevant point of time required that  for including in the panel for promotion as Tehsildars,  the Deputy Tehsildars had to satisfy certain  qualifications including that as Deputy Tehsildars they  should have exercised Magisterial powers.  Taking note  of the historical reasons, the Government considered it  unfair to exclude the Deputy Tehsildars from Telangana  area of Andhra Pradesh for inclusion in the panel for  promotion as Tehsildars.  Hence exercising power under  Rule 47 the Government granted relaxation and the  Deputy Tehsildars coming from Telangana area were  included in the panel for promotion as Tehsildars.   When there was challenge to the power of the Government  to relax the conditions of service under Rule 47, this  Court expressed the view that Rule 47 of the General  Rules gives power to the Governor to relax the rigour  of the General Rules in such manner as may appear to be  just and equitable.  The Court went on to say: - "It is not difficult to see that the  occasion for acting under Rule 47 may  well arise after the attention of the  Govt. 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 R. 47 with  retrospective effect, otherwise the  object and purpose of the rule will be  largely frustrated." (Emphasis supplied) In the same judgment the contention that relaxation can  be made under Rule 47 prospectively and not  retrospectively was rejected by this Court.         This Court yet again in M. Venkateshwarlu and  others vs. Government of A.P. and others [(1996) 5 SCC  167], held that under Rule 47 the Governor is empowered  to relax the rigour of the General Rules in such manner  as may appear to him to be just and equitable  retrospectively also.  In that case the appellant was  promoted as Deputy Tehsildar on 20.6.1984.  The panel  effective from 1.7.1983 for regular promotion was to be  drawn for the year 1983-84; he had not completed the  requisite length of service postulated by Rule 8(ii) of  the A.P. Revenue Subordinate Service Rules, 1961  (Special Rules), for regular promotion as Deputy  Tehsildar.  He requested for relaxation under Rule 47  of the Rules.  The State Government relaxed the  shortfall and empanelled him for the year 1983-84  instead of 1987-88 and accordingly he was promoted on  regular basis.  This relaxation given to the appellant  was assailed.  Dealing with the question, in paragraph  8, this Court observed: - "8.     Thus it could be seen that the  Governor is empowered to relax the  rigour of the General Rules in such  manner as may appear to him to be just  and equitable in the interest of justice

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and equity.  Justice can be done only by  exercising the power retrospectively.   Otherwise, the object and purpose of  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." (Emphasis supplied)                  In that judgment another question was also considered  whether giving of notice to the persons likely to be  affected was necessary before exercising the power of  relaxation under Rule 47.  In paragraph 11 of the  judgment in regard to the same question it is stated,  thus:- "11.    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."

At any rate, in the present case not giving notice to  the appellant before relaxation was given to the  respondent was immaterial as promotion was given to the  respondent in promotee quota, as already stated above.         The facts of the case in Desoola Rama Rao and  another vs. State of Andhra Pradesh and others [1988  (Supp.) SCC 221] were almost similar to the facts of  the case with which we are dealing.  In that case  respondents 3 and 4 were temporarily appointed as  Assistant Engineers on 14.8.1959 and 19.5.1960  respectively before the appellants were recruited as  Assistant Engineers.  In exercise of powers under Rule  22(a) of the General Rules, the services of respondents  had been regularized retrospectively with effect from  19.5.1961 by the Chief Engineer by order dated  3.5.1967.  In paragraph 4 of the said judgment this  Court observed that the regularization of services of  respondents 3 and 4 as directed to take effect, is not  anterior to their appointment as Assistant Engineers,  the regularization cannot be said to have been vitiated  on account of arbitrariness.  From this judgment it  follows that the power of relaxation can be exercised  retrospectively and it can be exercised for the  specific purpose of regularization of services of a  temporary appointee with retrospective effect from the  date of his appointment under Rule 10(a) of the A.P.  General Rules.         Yet, another decision of this Court in P.V.T.  Phillip vs. P. Narasimha Reddy and others [1993 Supp.  (3) SCC 438] supports the case of the respondent to the  effect that power to relax under Rule 47 can be  exercised with retrospective effect wherever required  in the interest of justice and equity.         In the case on hand the appointment of the  respondent made under Rule 10(a)(i)(I) was regularized

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by relaxing the relevant service rules and the Standing  Order No. 107 of Andhra Pradesh Police Manual Part I by  exercising the powers under Rule 47 of General Rules.   The Government, as observed by the High Court, for good  reasons have chosen to regularize the services of the  respondent with effect from the date of temporary  promotion as Sub-Inspector in recognition and providing  incentive for merit and in public interest.  The High  Court also noticed that the respondents were given out  of seniority promotions on the basis of their  individual extraordinary services and merit.  The High  Court found fault with the observations made by the  Tribunal that the appointment of the respondent was not  in accordance with the rules and that his appointment  was not made after considering the case of all other  eligible persons as per the Rules and as such their  services could not be counted for seniority in the  cadre of Sub-Inspectors from the date of their  temporary appointment.  The High Court observed that  the question of considering the case of every eligible  person along with them would scarcely arise as in such  cases, it is only a particular individual based on his  notable performance and merit would be picked up for  out of seniority promotion as has been done in this  case.  The High Court also noted that the General Rules  provided for ad hoc appointment under Rule 10(a)(i)(1)  of the General Rules and in this case there is a  provision for appointment by promotion and that is how  the respondent had been promoted.  In regard to giving  of notice to the persons likely to be affected before  exercise of power to relaxation under Rule 47, the High  Court in paragraph 22 of the impugned judgment  observed: - "22.    The only other contention which  needs mention is that at any rate the  impugned orders of the Government would  not affect the interests (seniority) of  the un-official respondents inasmuch as  no notice has been given to them before  the Government passed the impugned  orders.  It may be mentioned here, the  impugned orders do not relate to fixing  the inter se seniority within the cadre  of Sub-Inspectors.  The petitioners  herein were promoted in their individual  cases based on their exceptional merit  and performance.  If regularization of  their services by relaxing the rules  under Rule 47 of the A.P. General Rules  happens to affect the seniority of  others, this itself does not support the  contention that the impugned orders  could not have been passed without prior  notice to the un-official respondents  and others.  Further, Rule 47 of the  General Rules does not contemplate  issuance of notice before the power is  exercised it.  The Supreme Court in the  case of M. Venkateswarlu (supra) has  held that Rule 47 ex facie does not  contemplate any notice.  It was also  observed that it was not a case to  consider inter se claims of any  particular individual and that it was a  case of relaxing the eligibility

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requirement of a single individual as  against many.  In these circumstances,  it was held that no notice was  required."

       Another important factor to be kept in mind is  that a finding is recorded by the High Court that the  promotion given to the respondent to the post of Sub- Inspector was against the vacancies meant for the quota  of promotees.  The respondent was admittedly promoted  on temporary basis as OSSI prior to the recruitment of  the appellant.  Once his services were regularized that  too in the promotee quota, the appellant being direct  recruit cannot make any grievance.  In this view it  cannot be said that the appellant was an affected  person for want of notice before passing the order of  relaxation to question the seniority of the respondent.         The decisions cited on behalf of the appellant,  according to the High Court, did not support the case  of the appellant having regard to the facts of those  cases and rightly so in our view.  That apart, in the  light of the direct decisions of this Court dealing  with Rule 47 of the General Rules the High Court was  right in following them in the impugned order.         The case of N.K. Durga Devi vs. Commissioner of  Commercial Taxe, Hyderabad and others [(1997) 11 SCC  91] also does not help the appellant for three reasons  (1) it is on the facts of that case, (2) as can be seen  from paragraph 3 of the judgment, the order was made on  the basis of concession made by the learned counsel  that the relaxation could not have been validly passed  without giving notice to all the affected parties since  that would be in violation of principles of natural  justice, and (3) respondent was promoted as OSSI in  promotee quota and not against quota meant for direct  recruits to which category the appellant belonged.         Thus viewed from any angle we do not find any good  reason or valid ground to interfere with the impugned  judgment.  Hence, finding no merit in this appeal it is  dismissed.  No costs.