# ANDHRA PRADESH v. D. JANARDHANA RAO (Gupta, !.)

- **Citation:** [1977] 1 S.C.R. 702
- **Court:** Supreme Court of India
- **Decided:** 1976-09-23
- **Case number:** Civil Appeal No. 704 of 1975
- **Bench:** Y. V. Chandrachud, P. K. Goswami, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/andhra-pradesh-v-d-janardhana-rao-gupta-6948
- **Pages:** 7

## Headnote

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Civil service-Powers of relaxaton-W/ietiltr rules can be mtule retrospcctfrely:__Andhra Pradesh State and Subordinate Servia Rules 1962-Rule 47-·
Andhra Pradesh Civil Services (Cooperation Branch)
Special Rules 1962-rule 4.
The respondent filed a Writ Petition in the High Court questioning tile
inclusion in the list of Deputy Tahsildars eligible for promotion to the post
of Tahsildars of the names of 63 persons who were impleaded as respondents 4
to 66, in the Writ Petition. The 63 persons were working as Upper Division
Clerks in the erstwhile State of Hyderabad. The State Government in consultation with the Government of India issued an order on 7-4-1960 stating that
the first stage promotion of the employees of the erstwhile Government of
Hyderabad should be governed by the Hyderabad Cadre and Recruitment Rules
for promotion which were applicable to them before that date.
The subsequent
promotions after the first stage of promotion wonld be governed by the relevant
rules in force in the newly formed State.
By virtue of this order the aforesaid
6 employees were promoted to the post of Deputy Talmildars which wa.; the
first stag.e promotion for them. In 1962, Andhra Pradesh Civil Services (Cooperation Branch) Special1 Rules were framed, but were made effective retrospectively from 1st November, 1956. Under rule 4(a) the State Government bas
to prepare in consultation with the Public Service Commission a list of persons
eligible for appointment as Tahsildars. The 63 erstwhile employees of the
Government of Hyderabad did not have the opportunity to acquire the qualifications prescribed under rule 4(a) of the Special Rules on their promotion as
Deputy Tahsildars.
The Government felt that they should not be left out of
consideration for appointment, as Tahsildars and asked the
Public
Service
Commission to consider the names of such Deputy Tahsildars for inclusion in
the list of eligible candidates assuring the Public Service Commission that the
Government would relax the requirements as to qualification in favour of such
Deputy Tabsildars provided they were otherwise found suitable by the Commi•-
sion. By order dated 30-6-1971 !he Governor rela.xed the provisions of rule 4(a)
of the Special Rules in exercise of powers under s. 47 of the Andhra Pradesh
State and Subordinate Services Rules 1962. The respondents filed a Writ Petition
for quashing the order dated 30-6-1971 in the High Court.
The respondents
contended that as a result of the said order their claims for appointment to the
posts of Tehsildar had been passed over in favour of unqualified persons. The
High Court allowed the Writ Petition. The High Court held that rule 47 did
not confer any power to relax a rule retrospectively. It was also held that
under rule 47 power was given to Governor personally :rnd therefore the exercise
of it by the Governor wa<S invalid.
In an appeal by special leave the appellant contended :
1. That rule 47 did not confer any power to relax a rule retrospectively.
2. The power was given to the Governor personally to relax the rule•
and since the impugned order was not passed by the Governor lint
bv Hie Govt. of Andhra Pradesh it was invalid.
Allowing the appeal,
HELD:
1. The view taken by the High Court that the power conferred by rule 47
is exercisable by the Governor personally is based on the judgment
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ANDHRA PRADESH v. D. JANARDHANA RAO (Gupta, !.)
7 03
in Sardarilal v. Unio11 of India, (1971] 3 S.C.R. 461. The said decision
stands overruled by the later decision of this Hon'ble Court in Sltamslier Singh v. Stare of Punjab, [1975] I S.CR. 814. (706 E-F]
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2. Rule 47 empowers the Governor to relax the general rules in such
manner as may appear to him to be just and equitable. It is clear that
power under rule 47 is to be exercised in the interest of justice and
equity. It is not difficult to see that the occasion for acting under
rule 47 arises after the attention of the Government is drawn to a
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case where there

## Text

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702
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GOVERNMENT OF ANDHRA PRADESH AND ORS.
\!.
SRI D. JANARDHANA RAO AND ANOTHER
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September 23, 1976
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[Y. V. CHANDRACHUD, P. K. GOSWAMI AND A. C. GUPTA, JJ.J
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Civil service-Powers of relaxaton-W/ietiltr rules can be mtule retrospcctfrely:__Andhra Pradesh State and Subordinate Servia Rules 1962-Rule 47-·
Andhra Pradesh Civil Services (Cooperation Branch)
Special Rules 1962-rule 4.
The respondent filed a Writ Petition in the High Court questioning tile
inclusion in the list of Deputy Tahsildars eligible for promotion to the post
of Tahsildars of the names of 63 persons who were impleaded as respondents 4
to 66, in the Writ Petition. The 63 persons were working as Upper Division
Clerks in the erstwhile State of Hyderabad. The State Government in consultation with the Government of India issued an order on 7-4-1960 stating that
the first stage promotion of the employees of the erstwhile Government of
Hyderabad should be governed by the Hyderabad Cadre and Recruitment Rules
for promotion which were applicable to them before that date.
The subsequent
promotions after the first stage of promotion wonld be governed by the relevant
rules in force in the newly formed State.
By virtue of this order the aforesaid
6 employees were promoted to the post of Deputy Talmildars which wa.; the
first stag.e promotion for them. In 1962, Andhra Pradesh Civil Services (Cooperation Branch) Special1 Rules were framed, but were made effective retrospectively from 1st November, 1956. Under rule 4(a) the State Government bas
to prepare in consultation with the Public Service Commission a list of persons
eligible for appointment as Tahsildars. The 63 erstwhile employees of the
Government of Hyderabad did not have the opportunity to acquire the qualifications prescribed under rule 4(a) of the Special Rules on their promotion as
Deputy Tahsildars.
The Government felt that they should not be left out of
consideration for appointment, as Tahsildars and asked the
Public
Service
Commission to consider the names of such Deputy Tahsildars for inclusion in
the list of eligible candidates assuring the Public Service Commission that the
Government would relax the requirements as to qualification in favour of such
Deputy Tabsildars provided they were otherwise found suitable by the Commi•-
sion. By order dated 30-6-1971 !he Governor rela.xed the provisions of rule 4(a)
of the Special Rules in exercise of powers under s. 47 of the Andhra Pradesh
State and Subordinate Services Rules 1962. The respondents filed a Writ Petition
for quashing the order dated 30-6-1971 in the High Court.
The respondents
contended that as a result of the said order their claims for appointment to the
posts of Tehsildar had been passed over in favour of unqualified persons. The
High Court allowed the Writ Petition. The High Court held that rule 47 did
not confer any power to relax a rule retrospectively. It was also held that
under rule 47 power was given to Governor personally :rnd therefore the exercise
of it by the Governor wa<S invalid.
In an appeal by special leave the appellant contended :
1. That rule 47 did not confer any power to relax a rule retrospectively.
2. The power was given to the Governor personally to relax the rule•
and since the impugned order was not passed by the Governor lint
bv Hie Govt. of Andhra Pradesh it was invalid.
Allowing the appeal,
HELD:
1. The view taken by the High Court that the power conferred by rule 47
is exercisable by the Governor personally is based on the judgment
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ANDHRA PRADESH v. D. JANARDHANA RAO (Gupta, !.)
7 03
in Sardarilal v. Unio11 of India, (1971] 3 S.C.R. 461. The said decision
stands overruled by the later decision of this Hon'ble Court in Sltamslier Singh v. Stare of Punjab, [1975] I S.CR. 814. (706 E-F]
A
2. Rule 47 empowers the Governor to relax the general rules in such
manner as may appear to him to be just and equitable. It is clear that
power under rule 47 is to be exercised in the interest of justice and
equity. It is not difficult to see that the occasion for acting under
rule 47 arises after the attention of the Government is drawn to a
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case where there has been a failure of justice. In all these cases
justice can be done only by exercising the power under rule 4 7 with
retrospective effect otherwise the object and purpose of the rnle will
be largely frustrated.
Such a provision is not unique and is to be
found in several statutory rules. (707 A-C]
R. I'. Khanna & Ors.
v.
S. A, F Abbas & Ors., [1972] 3 S.C.R. 548,
followtd.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 704 of 1975.
(Appeal by Special Leave from the Judgment and Order dated
11-11-1974 of the Andhra Pradesh High Court in Writ Appeal No.
596/73).
P. P. Rao and T. V. S. N. Chari, for the Appellants.
A. Subbarao, for the Respondents.
The Judgment of the Court was delivered by
GUPTA, J. This appeal by special leave arises out of a writ petition made by the respondents before us in the Andhra Pradesh High
Court questioning the inclusion in the list of Deputy Tehsildars eligic
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ble for promotion to the post of Tehsildar of the names of 63 persons,
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impleaded as respondents Nos. 4 to 66 in the writ petition.
These
63 persons were working as Upper DiVision Clerks in the erstwhile
State of Hyderabad when, on November 1, 1956, the State of Andhra
Pradesh was formed.
The State Government in consultation with the
Government of India issued an order on April 7, 1960 stating that
the first stage promotion of the employees of the erstwhile Government of Hyderabad, that is, promotion to posts one stage above those
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held by them prior to November 1, 1956, would be governed by the
Hyderabad Cadre and Recruitment Rules for promotion which were
applicable to them before that date, but subsequent promotions after
the first stage of promotion would be governed by the relevant rules
in force in the newly formed State. By virtue of this order the aforesaid 63 employees were promoted to the post of Deputy Tehsildar
which was the first stage promotion for them. Later, this order dated
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April. 7, 1960 was made a statutory rule, namely, rule 42(h) (i) of
the Andhra Pradesh State and Subordinate Services Rules which came
into force on March 7, 1962.
The Andhra Pradesh Civil Services
(Executive Branch} Special Rules Revenue Department, hereinafter
referred to as the Special Rules, were made on July 17, 1962 but
made effective retrospectively from November 1, 1956.
These Rules
cover two categories of service; we are concerned here with category
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2-Tahsildars. Rule 4(a) of the rules says inter alia that the qualifications of a candidate for appointment to the post of Tahsildar shall
be as specified in the annexure to the rules.
The annexure provides
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SUPREME COURT REPORTS
[1977) 1 S.C.R.
that a Tahsildar recruited by transfer from tbe category of Deputy
Tahsildars must be a permanent Deputy Tahsildar or an approved
probationer in the category of Deputy Tahsildars and should have
exercised the powers of a Magistrate of the third class and also of
the second class for a period of six months in each capacity.
Only
those candidates who have pas'sed a
criminal judicial test can be
invested with magisterial powers under the orders in force.
Under
rule 4(a) the State Government has to prepare in consultation with
'the Public Service Commission a list of persons eligible for appointment as Tahsildars, and no Deputy Tabsildar is eligible for appointment as Tahsildar unless his name is included in such list.
The two respondents before us were directly recruited to the post
of Deputy Tahsildar in the year 1962 and completed their period of
probation in 1965. Both of them were declared as approved probationers in 1965 and were invested with the powers of a Magistrate
of the third class, and then of the second class. They became eligible
for appointment as Tahsildars on November 14, 1966 and June 18,
1969 respectively.
The respondents and the said 63 Deputy Tahsildars all belong to
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the Telengana area of the State. The 63 erstwhile employees of the
Government of Hyderabad did not have the opportunity to acquire
the qualifications prescribed by rule 4(a) of the Special Rules on
their promotion as Deputy Tahsildars. The Government felt that they
should not be left out of consideration for appointment as Tahsildars
and asked the Public Service Commission to consider the names of
such Deputy Tahsildars for inclusion in the lists of eligible candidates
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assuring the Public Service Commission that the Government would
relax the requirement as to qualification in ~avour of such Deputy
Tahsildars provided they were otherwise found suitable by the Commission.
The Public Service Commission accordingly included the
names of these 63 employees in batches in the lists prepared for the
years 1965, 1966, 1968 and 1969. By an order dated June 30, 1971
the Governor of Andhra Pradesh relaxed the provisions of rule 4(a)
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of the Special Rules relating to the qualifications required of Dputy
Tahsildars for being appointed as Tahsildars in favour of these 63
employees and requested the Board of Revenue to make appointments
to the post of Tahsildar in the Telengana area according to the order
in which the names had been indicated in the panels for the aforesaid
years against the vacancies.
The order traces the background of facts
and states the reasons for relaxation of rule 4(a) of the Special Rules
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in the case of these employees. The material part of the order is as
follows:
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"The Government have had under consideration
for
sometime past the preparation of panels of Tahsildars of
the Telengana Region.
According to Rules 4(a) read witht
the Annexure thereto of the Andhra Pradesh Civil Service
(Executive Branch) Special Rules, a candidate for appointment to the category of Tahsildars by transfer should, in
addition to the other qualifications, be a permanent Deputy
Tahsildar or an approved probationer in the category of
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ANDHRA PRADESH v. D. JANARDHANA RAO (Gupta, J.)
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Deputy Tahsildars of the Andhra Pradesh Revenue SubordiA
~ate Service by the 1st July of the year to which the list
relates and should have exercised Ill class and II
class
Magisterial powers respectively for a period of six months
each.
According to the orders in force, only those candidates who have passed the criminal judicial tests can be
invested with Magisterial powers.
Allotted officers from
Telengana for whom promotion to the category of Deputy
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Tahsildars constitutes the first stage of promotion
after
1--11-1956 (viz. Upper Division Clerks), are governed by
the Hyderabad cadre and Recruitment Rules for appointment as Deputy Tahsildars. There is no probation prescribed in the Hyderabad Cadre and Recruitment Rules for II
Grade Clerks (Upper Division Clerks) on their promotions
to the post of Deputy Tahsildars.
Therefore, the question
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of their becoming approved probaitioners in the category of
Deputy Tahsildars does not arise.
Further, the Hyderahad
cadre and Recruitment Rules do not lay down that the II
Grade Clerks (Upper Division
Clerks) should pass the
Criminal Judicial Test as a condition precedent for promotion to the category of Deputy 'tahsildars and, therefore,
those who did not pass the said tests could have had no
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opportunity of exercising magisterial powers while working
as Deputy Tahsildars. In the circumstances it was felt that
it would be unfair to exclude such persons from consideration for promotion to the category of Tahsildars on the
ground that they were not ,approved probationers and/or
had not exercised magisterial powers.
The Public Service
Commission was therefore, requested to consider the names
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also of the Deputy Tahsildats of the Telengana Region of
the above category for inclusion in the panels for the respective years, regardless of whether or not they possessed
the above qualifieiations, with an assurance that the Government would be prepared to relax the rules relating to above
requirements in favour of the candidates who would be
otherwise found suitable by the Commission."
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Rule 4(a) of the Special Rules was relaxed by the Governor in
favour of the aforesaid Deputy Tahsildars in exercise of the power
conferred by rule 47 of the Andhra Pradesh State and Subordinate
Services Rules. Rule 47 reads as follows : -
"47. Relaxation of rules by the Governor.-No
rule
made under the proviso to article 309 of the Constitution of
India or continued under article 313 of the Constitution
shall be construed to limit or ,abridge the power of the
Governor to deal with the case of any class or category of
person for being appointed to any civil post, or of any person
serving 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 tci the
case of any person or a c.Jass of persons, the cases shall not
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SUPREME COURT REPORTS
[1977] 1 s.c.H.
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be dealt with in ,any manner less favourable to the person
or class of persons than that provided by that rule."
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The respondents before us filed a writ petition for quashing the
order dated June 30, 1971 insofar as it relates to the
said 63 employees who were impleaded as respondents Nos. 4 to 66 in the writ
petition.
The writ petitioners complained that as ,a result of the
order their claims for appointment to the post of Tahsildar had been
passed over in favour of unqualified persons, and the petitioners asked
for a direction on the Government of Andhra Pradesh, the Board of
Revenue, and the Andhra Pradesh Public Service Commission, who
are the appellants before us, to include the names of the petitioners
in the panel for the years 1968 and 1969, as the case may be, and
fix their seniority at the appropriate places which they would have
occupied had they been promoted ,at the relevant time. The learned
Judge who _heard the writ petition allowed the same and directed
that the claims of the petitioners for inclusion of their names in the
panels from the respective dates they had acquired the requisite
qualifications, should be considered on merits.
It was held that rule
47 of the Andhra Priadcsh State and Subordinate Services Rufo did
not confer any power to relax a rule retrospectively as had been done
by the order dated -June 30, 1971. It was further held that under
rule 4 7 power was given to the Governor personally to relax the rules
and the impugned order dated June 30, 1971 which was passed not
by the Governor really but by the Government of Andhra Pradesh
was, as such, invalid.
In the Letters Patent appeal preferred by the
State, a Division Bench affirmed the Judgment of the single Judge.
The view taken by the High Court that the power conferred by
rule 4 7 of the Andhra Pradesh State and Subordinate Services Rules
is exercisable by the Governor personally is based on the Judgment
of this Court in Sardari Lal v. Union of India & ors.(') But Sardari
.Lat's case has been overruled by the later decision of this Court in
Shamsher Singh v. State of Punjab,(') and counsel for the respondents
rightly conceded that the impugned order cannot be asi;;ailcd on this .
ground after Shamsher Singh's case.
The real question that requires to be decided in this appeal is
whether rule 47 permits relaxation of any rule with retrospective
effect.
Before proceeding to consider this aspect, it is necessary to
dispose of one small point raised on be]Jialf of the appellants that
the impugned order was not really retrospective bilf prospective in
operation because it was only from the date of the order that 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 4 (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 made.
The order is therefore clearly retroactive and not prospective in operation.
Rule 47 of the Andhra Prtadesh State and Subordinate Services
(1) (1971) 3 S.C.R. 461.
(2) (1975) I S.C.R. 814.
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707
Rules gives power to the Governor to relax the rigour of the general
rules in such manner as may appear to him to be just and equitable.
To show that rule 4 7 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 Services (Mcdidal Attendance) Rules, 1938, rule 10 of the
Indian Administrative Service (Pay) Rules. 1954, rule . 15 of the
Indian Police Service (Probation) Rules, 1954, rule 10 of the Indian
Police Service (Pay) Rules, 1954, and rule lO(b), proviso, of the
Indian Forest Service (Appointment by Competitive
Examination)
Regufations, 1967.
Clearly, 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 4 7 may well arise after the
attention of the Government 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 4 7 with retrospective effect, otherwise
the object and purpose of the rule will be largely frustrated. The view
we take finds support from the decision of this Court in R. P. Khanna
& Ors. v. S. A. F. Abbas & Ors.(1)
In that case the Court was
dealing with rule 3(3) (b) of the Indian
Administrative
Service
(Regulation of Seniority) Rules, 1954 which lays down that the year
of allotment of an officer who was appointed to the Service by promotion shall be the year of allotment of the junior-most among
the
officers whd entered the service by direct recruitment who officiated
continuously in a senior post :fu:om ta date earlier than the date of
commencement of such officiation by the former. The second proviso
to the rule states that a promotee shall be deemed to have officiated
continuous! y in a senior post prior to the date of inclusion of his
name in the select list prepared in accordance with the requirements
of the Indian Administrative Service (Appointment by Promotion)
Regulations, if the period of such officiation prior to that date was·
approved by the Central Government in consultation with the Union
Public Seryice Commission. Overruling a contenition raised on behalf
of the direct recruits that it was not open to the State to make a
restrospective declaration with regard .to posts being made equivalent
to senior posts, this Court observed :
"From the point of view of workability of the rule as
well as the circumstances and the conditions of service it
may not always be practicable to make such prospective
declaration. It is only when the Government has found that
it is necessary or desirable to declare such posts equivalent
to senior posts that the Government will do so. That will
be usually possible after the Government will have considered several factors, namely, finance, structure of the service,
the personnel fit for undertaking the post.
Normally, the
prom.otees obtain promotion froril the State Civil Service
after long service. That is -why rule 3(3) (b) of the Regulation of Seniority Rules is designed to arrive at a fair adjust-.
ment of the competing claims of the direct recruits and the
promotees.
To -hold that a promotee could not get the
benefit of officiation unless the post was declared as equiva-
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_le~t to a se~ior_cadre post before the promotee was appoint-
(!) [1972] 3 S.C.R. 548.
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SUPREME COURT REPORTS
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ed to officiate might defect the policy of the Government.
A promotee may be officiating continuously for a long period
and his name may be included in the select list after some
time. Again a person who officiates continuously for a long
time may thereafter be not included in the select list. Such
a person might deprive a person who would otherwise be
found suitable for appointment by promotion after similar
officiation in a similar post.
It is only when the
State
Government finds that it is desirable to declare the post
equivalent to a senior post inter al.'a by reason of the efficiency of the person which has entitfod him to promotion that
the consequential necessity arises for giving him that senior
post by requisite dec:laration of a senior post.
A retrospective declaration therefore is in the scheme of things pract~cal
as well as reasonable."
Counsel for the respondents drew 0L1r attention to the words "for
being appointed" in rule 47 to contend that the rule was meant to
be applied only prospectively.
According to counsel the rule when it
says that nothing in the general rules shall limit or abridge the power
of the Governor to relax the rigour of these rules in the case of any
class or category of persons "for being appointed to any civil. post",
it contemplates an appointment in future.
We do not think that this
contention has any force.
The words "for being appointed" in the
context in which they appear do not necessarily refer to a future
appointment.
The validity of an appointment to any civil post may
be questioned after the appointment has
been
made
and
there is
nothing to rule 47 to indicate that the Governor in exercise of power
under this rule cannot deal with such a case, if this was required
in the interest of justice and equity.
It appears that after the Judgment of the Division Bench of the
High Court was delivered on November 11, 1974, by a notification
dated November 25, 1974 the provision in the Special Rules setting
out the qualifications required for the post of Tahsildar was amended
by adding a proviso saying that "the requirement in regard to being
an approved probationer and the exercise of powers of a Magistrate
shall not apply in respect of those Deputy Tahsildars in the Telengana
area for whom promotion to the category of Deputy Tahsildar was
or is the first stage of promotion after the 1st November 1956".
The notification states that the amendment shall be deemed to have
come into force on the 1st June, 1961. The amendment thus appears
to cover the cases of the said 63 Deputy Tahsildars.
However, the
rule as amended does not arise for consideration in this appeal which
is directed again!lt the judgment of the High Court passed on the
rule as it stood prior to the amendment and we do not express any
opinion on the amended rule.
The appeal is allowed, the
Judgment of
the High
Court is set
aside and the writ petition is dismissed. In the circumstances of the
case we make no order as to costs.
P.H.P.
A ppea/ allowed
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