Holding

Rule 22(ii) applies to promotion/transfer for carry‑forward vacancies and the Government may retrospectively relax service requirements under Rule 47 without notice, in the interest of justice and equity.

Summary

M. Venkat... (appellant), a Scheduled Caste employee in the Andhra Pradesh Revenue establishment, was promoted ad‑hoc as Deputy Tehsildar in 1984 but fell short of the service‑length requirements for regular promotion. He sought relief under Rule 47 of the Andhra Pradesh State and Subordinate Service Rules to retrospectively relax the shortfall in service and was empanelled for the 1983‑84 promotion year. Senior assistants (respondents) challenged the relaxation before the Andhra Pradesh Administrative Tribunal, which on a Full Bench held that Rule 22 did not apply to carry‑forward vacancies and that retrospective relaxation under Rule 47 was illegal. The Supreme Court held that Rule 22(ii) of the General Rules does apply to appointments by promotion or transfer for carry‑forward vacancies and that the Governor may exercise Rule 47 to relax service requirements retrospectively in the interest of justice and equity, without a requirement to give notice to all affected persons. Consequently, the Court allowed the appeal, restoring the appellant’s promotion and setting aside the Full Bench decision.

Issues considered

Whether Rule 22(ii) of the Andhra Pradesh State and Subordinate Service Rules applies to appointments by promotion or transfer for carry‑forward vacancies reserved for Scheduled Castes and Scheduled Tribes.
Whether the Government may retrospectively relax the service‑length requirements under Rule 47 of the General Rules in the interest of justice and equity.
Whether notice to all persons potentially affected is required before exercising the power under Rule 47.
Whether such relaxation can be granted in an individual case.

Legislation cited

Constitution of Indias. Article 14, s. Article 16(1), s. Article 16(4), s. Article 16(4A)

Subjects

reservationpromotioncarry forward vacancyRule 22Rule 47retrospective relaxationScheduled CastesScheduled Tribesequalityservice rulesAndhra Pradesh

Judgment

A M. VENKATESWARLU ETC.
v.
THE GOVERNMENT ANDHRA PRADESH AND ORS. ETC. ;. ~

MARCH 12, 1996

B [K. RAMASWAMY AND G.B. PATTANAIK, JJ.J

SelVice Law :

A11dhra Pradesh Revenue Subordinate SetVice Special Rules/A11dhra
Pradesh State and Subordinate SetVice Rules: , j
c
Rules 2, 6, 7, 8/Rt!les 22, 47-Deputy Tehsilda1'--Appoi11tment by
promoti01t-Qualificatio11s---Cany fmward vaca11cies--Otilisatio11 of-Special
representatio11-Appe//a11t belonging to Scheduled Caste falling short of re-
quired length of se1Vic~Relaxatio11 of Rules retrospectively---He/d, Govem-
me/t/ empowered to relax the ntles retrospectively in interest of justice and
D equity.
Constitution of India.

Articles 14, 16(1), 16(4), 16(4-A)---Rese1Vatio11 in promotion-Held,
consistent with provisions of Constitution.
E
The appellant, an employee in the District Revenue Establishment of
the Respondent-State and belonging to Scheduled Caste, was promoted as
Deputy Tehsildar on ad-hoc basis in 1984. When the panel effective from
1.7.1983 for regular promotion as Deputy Tehsildar came to be drawn for
the year 1983-84, the service of" the appellant fell short of the required
F period. His name was, however, recommended for promotion for the year
1986-87. He made a representation to the Government to relax Rule 8(ii) of
A.P. Revenue Subordinate Service Special Rules to empanel him for the
year 1983-84. The Government, exercising the power under Rule 47 of the
A.P. State and Subordinate Service Rules (General Rules), relaxed the
G shortfall in the required service and empanelled him for the year 1983-84
and promoted him as Deputy Tehsildar on regular basis.

The respondents, who were senior to the appellant as senior Assis-
tants, filed an application before the Andhra Pradesh Administrative
Tribunal challenging the relaxation given to the appellant. Tiie Division
H Bench of the Trinunal upheld the promotion of the appellant as in its view
266
M. VENKATESWARLUv. GOVT. OF A.P. [K. RAMASWAMY,J.] 267

reservation for Scheduled Castes and Scheduled Tribes to a carry forward A

.. ,. vacancy was valid under Rule 22 of the General Rules: However, since the
Division Bench noticed that there were diverse views as regards applica-
lion of Rule 22 of the General Rules to the carry forward vacancies, it
referred the case to the Full Bench, which held that Rule 22 of the General
Rules did not apply to carry forward vacancies for appointment by promo-
ti on or transfer; and retrospective relaxation under Rule 47 of the General
B
Rules was illegal.

In the present appeal, it was contended for the appellant that Rule
22 of the General Rules read with Rule 6 of the Special Rules empowered
L. the State to appoint members of Scheduled Castes and Scheduled Tribes,
by virtue of application of rule of reservation, not only to initial recruit-
c
men! but also to appointment by promotion or by transfer; that the rule
of carry forward would be applied when candidates belonging to Scheduled
Castes and Scheduled Tribes who were to get adequate representation in
the service were not available; and that relaxation under Rule 47 would
always be retrospective since the requisite conditions prescribed under the D
rules could not be complied with before action was taken. The contesting
_).
respondents opposed the relaxation given to the appellant on the grounds
.J,
that relaxation could not be granted in individual cases and no notice was
given to affected person.
E
Allowing the appeal, this Court

HELD : 1.1. In view of the provisions of Rules 6, 7 and 8 of the A.P.
Revenue Subordinate Service Special Rules and Rules 22 and 47 of the A.P.
State and Subordinate Ser >ice Rules, appointment by promotion or by
f
. transfer is available to carry forward vacancies in the post of Deputy
Tehsildar. The finding of the Full Bench of the Tribunal that Rule 22 of
F

the General Rules does not apply to appointment by promotion or transfer
is clearly inconsistent with Rule 22(ii) of the General Rules which en-
visages appointments "otherwise than by direct recruitment". (271-E]

Commissio11er of Commercial Taxes, A.P. & A11r. v. G.G. Sethwnad- G
hava Rao & Ors., (1996) 1 SCALE 721, relied on.
\.- "-

1.2. The rule of reservation in promotion is consistent with Articles
14, 16(1) and 16(4) of the Constitution to provide equality ofapportunity to
the Scheduled Castes and Scheduled Tribes. Recruitment as defined under H
268 SUPREME COURT REPORTS (1996] 3 S.C.R.

A the General Rules consists of three methods· direct recruitment, by promo-
tion and by transfer. Rule 22(ii) of the General Rules is quite wide to bring
within its ambit, the appiontment by promotion or transfer. The object to
carry forward is to avoid lapse of the posts when persons qualified and
eligible for appointment by promotion are not available. [271-C]

B 2. Government is empowered to relax the rigour of the General Rules
in such manner as may appear to it 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. Rule 47 cr facie does not contemplate any notice to be
C given to all the affected persons. [272-F; 274-C] • 1

Govemment of A.P. & Ors. v. Sri D. Janardhana Rao & Anr., [1977]
1 SCR 702, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4415 of
D 1996.

From the Judgment and Order dated 27.4.94 of the Andhra Pradesh
Administrative Tribunal in O.A. No. 1577 of 1993.

A. Subba Rao, A.D.N. Rao, D. Prakash Reddy, S.U .K. Sagar and
E Ms. Suman Bala Rastogi for the Appellants.
P.P. Rao, Ms. K. Amareshwari, Ms. C.K. Sucharita, K. Ram Kumar
and C. Balasubramaniam for the Respondents.

The Judgment of the Court was delivered by
F )

K. RAMASWAMY, J Leave granted.

CA. No. 4415/96 (@SLP (C) No. 13653/94)

Appellant was appointed as L.D.C. on January 21, 1975 in the
G Revenue establishment of Prakasam District in AP. 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 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
H for purpose of period of two years as Senior Assistant for regular promo·
M. VENKATESWARLUv. GOVT. OF AP. [K. RAMASWAMY, I.] 269

tion as a Dy. Tehsildar. His name was recommended for consideration of A
promotion for the year 1986-87. He made a representation in August 1990
to the Government to relax Rule 8(ii) of the A.P. Revenue Subordinate
Service Rule (for short, 'Special Rule') to empanel him for the year
1983-84. The District Collector and the Commissioner, Land Revenue
recommended for the relaxation. The Government exercising the power B
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 proceeding 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 C
to him for the year 1983-84. When the 0.A. 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 Rule 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 D
Scheduled Castes and Scheduled Tribes to a carry forward vacancy is valid
_). under Ruic 22, However, since it was found that there were conflicting
.;., decisions on application of Ruic 22 of the General Rules to the carry
forward vacancies, reference was made to the Full Bench. The Fulll Bench
by majority in the impugned order dated April 7, 1994 has held that Rule
22 of the General Rule does not apply to carry forward vacancies for E
appointment by promotion or lransfer. 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.
·i
F
Shri A. Subba Rao, learned counsel for the appellant contended that
Rule 22 of the General Rules read with Rule 6 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 G
\..- .,. 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 arc not available. Relaxation under rule 47 would always
be retrospective since the requisite conditions prescribed under the Rules
cannot be complied before action is taken. Consequently, the view of the H
270 SUPREME COURT REPORTS [1996] 3 S.C.R.

A 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
B 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 Ruic 47 is bad in law. According to the
learned counsel, no injustice or inequality as envisage in Rule 47 is made
out; its benefit should be given only to a class of persons by general
C relaxation as is contemplated in that behaif but not in an individual case.
The appellant has not pointed out any such injustice. His only contention
is that relaxation say 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
D ineligible person cannot be made eligible by relaxing Rule 47. No notice
was given to the affected persons before exercising the power under Ruic
47. By exercise of the power to grant relaxation, the appellant is made
senior over several persons in the category as a Senior Assistant stcJ!!ing 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
E power under Rule 47. The Government did not give any finding of injustice
and inequality to be done to a class of persons of at least to the individual
appellant. Though Rule 47 may be valid the exercise of power 1s vitiated
by error of law. On that premise, he seeks to support the judgment of the
Full Bench.
F
Having given our anxious consideration to the 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 Co1nmissioner of Co1nn1ercial Taxes, A.P. & Anr.
v. G. Sethumadhava Rao & Ors., (1996) I SCALE 721 interpreting Ruic 22
G of the General Rules this Court has held that Ruic 5 of the A.P. Commer-
cial 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 cur-
rent reserved vacancies in the recruitment year shall be available for
H utilisation even where the total number of such reserved vacancies exceeds
M. VENKATESWARLUv. GOVT. OFAP. (K. RAMASWAMY,J.] 271

52% of the vacancies filled that year in case the overall representation of A
~·
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
B
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
+' Article 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 c
in quite wide enough to bring within its ambit the appointment by promo-
lion 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
D
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 E
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.
i
J. The question then is : whether the Government was justified in F
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 Govemment of A.P. & Ors. v. 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 G
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 H
272 SUPREME COURT REPORTS [1996) 3 S.C.R.

A the inclusion of the names of the said 63 employees in the panels
for the different years was regularised. 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
B made. The order is, therefore, clearly retroactive and not prospec-
tive in operation.

Ruic 47 of the Andhra Pradesh State and Subordinate Services
Rules b<ives power to the Governor lo relax the rigour of the
c 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,
D and rule lO(b), proviso, of the Indian Forest Service (Appointment
by Competitive Examination) Regulations, 1967/ Oearly, 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
E 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 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
F
rigour 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,
G therefore, clearly illegal.

The next question is; whether the Government had addressed to itself
the real issue of justice or equity ? It is true that from a reading of the
order the Government do not appear to have been angulated from that
H perspective. But the conclusion can be supported by the facts available in
M. VENKATESWARLUv. GOVT. OF AP. [K. RAMASWAMY,J.] 273

the case. It is seen that under Rule 22(ii)(g), the carry forward of the A
reserved backlog vacancies could be for a period for 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 open to the general candidates dereserving the backlog vacancies.
Due to the non-availability of the qualified candidates the Government
B
instead of resorting to dercservation of the vacancies, appears to have
relaxed the rigour 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 anncxurc referred
~-
to in Rule 8(a)(ii) of the Special Rules is to the following effect :
c
"Must have served for a period of not less than eight years (includ-
ing 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 Opper
Division Clerk : D
..... Provided that 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 Div.ision Clerk in the regular line
E
but for his appointment as Upper Division Clerk elsewhere.

In this case, the appellant fell short of five month 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 Departn1ent. In
~
view of the huge backlog of reserved vacancies on account of non- F
abailability of Scheduled Castes/Scheduled Tribes candidates, the Govern-
ment appears to have intended to relieve the injustice to the appellant by
relaxing the prescribed period of service under Rule S(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 G
completion of the required period of service. It is settled law that the
y 'I
Government cannot relax the basic qualilfications 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 fulfil the
condition of total service of eight years and minimum service of two years H
274 SUPREME COURT REPORTS [1996] 3 S.C.R.

A as Senior Assistant. Therefore, with a view of fill up the backlog vacancies
which, as rightly pointed out but Shri P.P. Rao, undisputably is a constitu-
tional 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
B 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 jacie does not contemplate any notice being given. It is not a case
C of considering inter se claim of any praticular 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 of Rule 22
D 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 >enior as Deputy Tehsildar.

By operation of protective discrimination, a junior officer belonging
to Scheduled Castes or Scheduled Tribes, by operation of Article 16(1)
E read with Atricle 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
F in the post of Deputy Tchsildar. The consequence is inevitable due to
application of Rules 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 tht: General
Rules.
G
The appeal is accordingly allowed. But in the circumstances without •
costs.

CA. No. 4416/96 (Ca_i SLP (C) No. 7034/95)

H The constroversy raised in this case is no longer res integra. The ratio
)--
(

M. VENKATESWARLUv. GOVT.OFAP.[K.RAMASWAMY,J.] 275

of this Court in The Commissioner of Commercial Taxes, A.P., Hyderabad A
& Anr. v. G. Sethumadhave Rao & Ors., (1996) 1 SCALE 721 squarely
applies to the facts in this case. In view of the above discussion and and in
view of the ratio of G. Sethumadhava Rao's case, the appeal is allowed but,
in the circumstances, without costs.

R.P. Appeal allowed.