SANTOSH KUMARversusSTATE OF ANDHRA PRADESH AND ORS.

A                               SANTOSH KUMAR
                                          V.

                   STATE OF ANDHRA PRADESH AND ORS.

                                   MAY 22, 2003

B              [SHIVARAJ V. PATIL AND ARIJIT PASAYAT, JJ]


          Service Law:

          A.P. State and Subordinate Services Rules, 1962-Rule 47-Promotion
C   on temporary basis without following the Rules prior to direct recruitment-
    Consequent relaxation of recruitment Rules and regularization of services of
    promotees with retrospective effect from the date of their temporary promotion-
    Relaxation challenged by direct recruit as it affected his seniority-Rule under
    which relaxation given not challenged and no ma/ajides established-Tribunal
D   held Government competent to relax the Rules-However, retrospective
    regularization held invalid as the temporary promotion was not as per Rules-
    High Court held that even if promotion was not as per Rules, the officiating
    services could be counted for the purpose ofseniority-On appeal, held: Once
    the services of the promotees were regularized that too in the promotee quota,
    it cannot be said that their initial appointment was on ad-hoc basis and not
E   according to Rules.

          Posts of Sub-Inspectors of Police were apportioned between direct
    recruits and promotees. Some Head Constables including Respondent No.4
    were appointed temporarily as Out of Seniority Sub-Inspectors (OSSI) in
F   1983 without following recruitment Rules. Appellant was appointed as
    direct recruit in 1985. Between 1996 and 1997 State Government relaxed
    recruitment rules and regularized the services of the promotees w.e.f. the
    date of their temporary appointment. As the relaxation of Rules affected
    the seniority of the appellant, he filed application before State
    Administrative Tribunal challenging the relaxation of the Rules and
G   consequential regularization. Tribunal held that Government was
    competent to relax the Rules in exercise of its powers under Section 47 of
    the A.P. State and Subordinate Service Rules, 1962 with retrospective
    effect, but, the services rendered by the respondent and other OSSls, could
    not be counted as officiating service for determining their seniority as their

H                                        264
                       SANTOSH KUMAR v. STATE                          265
appointments were not in accordance with the rules and the retrospective       A
regularization adversely affected the interest of the appellant; and that
any notional dates of relaxation given to them affecting the seniority of
regularly appointed Sub-Inspectors could not be held valid. High Court
allowed the writ petitions holding that recruitment rules could be relaxed
with retrospective effect and even if initial appointments of the promotees    B
were not made in accordance with Rules, their officiating services could
be counted for the purpose of seniority as they continued in the post
uninterruptedly till the regularization of their services. Hence the present
appeal.

     Dismissing the appeal, the Court
                                                                               c
      HELD:l. 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         D
order of relaxation to question the seniority of the respondent. 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.
                                                            (276-E; 269-F)     E
        2. 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        F
of A.P. State and Subordinate Service Rules, 1962. 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   G
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     H
    266                    SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A   12-13 years till their services were regularized with retrospective effect.
    Once their services were regularized it cannot be said that their initial
    appointment was only on ad hoc basis and not according to the Rules and
    made as a stop gap arrangement. 1272-E, F, G, Hf

          Direct Recruit Class II Engineering Officers' Association v. State of
B Maharashtra and Ors., (199012sec715, followed.
          Government of Andhra Pradesh and Ors. v. Sri D. Janardhana Rao and
    Anr., [1976) 4 SCC 276; M Venkateshwarlu and Ors. v. Government of A.P.
    and Ors., (1996) 5 SCC 161; Desooja Rama Rao and Anr. v. State of Andhra
    Pradesh and Ors., (19881 Supp. 221 and P. V. T. Phillip v. P. Narasimha
C   Reddy and Ors., jl993J Supp. 3 SCC 438, relied on.

         N.K. Durga Devi v. Commissioner of Commercial Taxes, Hyderabad
    and Ors., 11997) II SCC 91, distinguished.

          CIVIL APP ELLA TE JURISDICTION : Civil Appeal No. 4917 of2000.
D
         From the Judgment and Order dated 30.04.99 of the Andhra Pradesh
    High Court in W.P. No. 35775 of 1997.

         L. Nageshwara Rao, J.R. Manohar Rao, G. Ramakrishna Prasad for
    S.U.K. Sagar for the Appellant.
E
         M.N. Rao, A.D.N. Rao, A.P. Jyotish and Amar Jyothi Shanna for the
    Respondents.

          G. Prabhakar and Ms. T. Anamika for State of A.P.

p         The Judgment of the Court was delivered by

          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. 35775197. Some of the Head Constables including the respondent No. 4
G   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
H   of the respondent and others regularizing their services with effect from the
                    SANTOSH KUMAR v. STATE [PATIL . .I.]                 267
  date of their temporary appointments affecting the seniority of the appellant. A
  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 B
  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. Ti1~ 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 C
  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 or~er
  of the High Court.
                                                                               D
       It may be useful to notice few more facts.

       The substantive posts of Sub-Inspectors of Police 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 E
 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 p
 date of their temporary appointment. Pu~suant 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 G
 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 H
      268                     SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

• A this Court, the Tribunal took the view that the services rendered by the
    respondent and other OSS!s 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
  B 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 promoke OSSis filed writ petitions before the High court against that
    part of the order of the Tribunal.

  C        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
  D 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
  E 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 thro11gh
    various rules and Government Orders in support of his submissions.
  F
            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
  G   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
  H
                  SANTOSH KUMAR v. STATE [PATIL, J.]                     269
 (for short 'Service Rules') could not be relaxed in exercise of the power A
 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 B
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 Ors. v. Government of A.P. and Ors., [1996] 5 SCC 167 holding that
Rule 47 ex facie does not contemplate any notice being given in case of C
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 OSS!s 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 D
consideration while determining the seniority in the cadre of Sub-Inspectors.
Finally, the Tribunal concluded that the unofficial respondents in the 0.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 E
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, F
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(8)
of the Constitution Bench judgment of this Court in Recruit Class II G
Engineering Officers' Association v. State of Maharashtra and Ors., ((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
                                                                               H
    270                     SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A 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
B 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
C   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
D
            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
E           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
F           Government respondent No. I 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
G           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 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
H
                   SANTOSH KUMAR v. STATE [PATIL, J.)                     271
        vacancies available in the quota meant for the promotees."                A
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    B
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
Ru Jes read: -
                                                                                  c
       "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       D
       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     E
       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 F
       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 G
       interest or where the application of such rule or rules is likely to
       cause undue hardship to the person or class of persons concerned."

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
                                                                                  H
    272                     SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A 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 JI Engineering
    Officers' Association's case (supra), after considering various aspects and
    earlier decisions, summed up the conclusions in paragraph 47 of the judgment.
B   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
C              seniority has to be counted from the date of his appointment and
               not according to the date of his confinnation.
                 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
D                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."

E 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
F   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 relaKed; this finding is not disturbed by the High Court; there was no
    relaxation as to the basic qualification; the State Government regularized the
G   services of the respondent and others with retrospective effect from the date
    they were temporarily appointed as Sub-Inspectors (OSS!s). 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
H   the aforementioned Constitution Bench judgment applies to the facts of the
                   SANTOSH KUMAR v. STATE [PATIL, J.]                       273
present case. Once their services were regularized it cannot be contended that      A
their initial appointment was only on ad hoc basis and not according to the
Rules and made as a stop-gap arrangement. On the other hand paragraph
47(8) 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            B
Pradesh and Ors. v. Sri D. Janardhana Rao and Anr., (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         C
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 Tehsiidars coming from Telangana area were
included in the panel for promotion as Tehsildars. When there was challenge         D
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 t:quitable. The Court went on to say:-
                                                                                    E
        "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. "                                                               F
                                                           (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.
                                                                                    G
      This Court yet again in M Venkateshwarlu and Ors. v. Government of
A.P. and Ors., [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 H
from 1.7.1983 for regular promotion was to be drawn for the year 1983-84;
    274                      SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A 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
B   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 and equity. Justice
C           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)
D
    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:-

E           "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 ofa single individual
            as against many. Under these circumstances, we do not think that the
F           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.
G        The facts of the case in Desoola Rama Rao and Anr. v. State of Andhra
    Pradesh and Ors., [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
H   exercise of powers under Rule 22(a) of the General Rules, the services of
                  SANTOSH KUMAR v. STATE [PATIL. J.)                     275
respondents had been regularized retrospectively with effect from 19.5.1961 A
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 th is judgment it follows that the power of B
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 1O(a) of the
A.P. General Rules.

      Yet, another decision of this Court in P.V. T. Phillip v. P. Narasimha C
Reddy and Ors., [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 lO(a)(i)(I) was regularized by relaxing the relevant service rules and the D
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 E
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 F
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 G
provided for ad hoc appointment under Rule IO(a)(i)(l) 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
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    276                     SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

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

E         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
F   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
G 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 v. Commissioner of Commercial Taxes,
H   Hyderabad and Ors., [1997) I I sec 91 also does not help the appellant for
                  SANTOSH KUMAR v. STATE (PATIL. J.)                      277
three reasons (I) it is on the facts of that case, (2) as can be seen from        A
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 giv(ng 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         B
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.

K.K.T.                                                      Appeal dismissed.