Full Judgment Text
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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
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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