Appeal No 2069 of 1982
From the Judgment and Order dated 23 4 1982 of the Andhra Pradesh Administration Tribunal in Representation Petition No 508 of 1982
Mrs C Markandeya for the Appellants
PG NO 807 B Kanta Rao and GN Rao for the Respondents
The Judgment of the Court was delivered by VENKATARAMIAH J
This appeal by special leave is filed against the Judgment dated 2341982 of the Andhra Pradesh Administrative Tribunal in Representation Petition No 508 of 1982 issuing a direction to the State Government to refrain from making any direct recruitment against temporary vacancies in the cadre of Assistant Engineers under the Andhra Pradesh Panchayat Raj Engineering Service Special Rules hereinafter referred to as the Special Rules  as amended by GO Ms No 227 dated 2841980 and issuing certain other ancillary directions
The facts of the case are as follows
Recruitment to the Andhra Pradesh State and Subordinate Services was governed by the Andhra Pradesh State and Subordinate Services Rules 1962 hereinafter referred to as the General Rules 
Rule 6 of the General Rules which dealt with the method of recruitment provided that where the normal method of recruitment to any service class or category was neither solely by direct recruitment nor solely by transfer but was both by direct recruitment and by transfer the proportion or order in which the special rules concerned may require vacancies to be filled by persons recruited direct or by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre
In those Rules the expression special rules meant the rules in Part III of the General Rules applicable to each service or class of service and included ad hoc rules applicable to temporary posts
On 2331963 the Governor of Andhra Pradesh promulgated in exercise of his powers conferred by proviso to Article 39 of the Constitution of India the Special Rules providing for the constitution of and the method of recruitment to the Andhra Pradesh Panchayati Raj Engineering Service and the Special Rules were given retrospective effect from November 1 1960 Under the Special Rules the Andhra Pradesh Panchayati Raj Engineering Service was to consist of four categories of officers namely Chief Engineer Superintending Engineer Executive Engineer and Assistant Engineer
The post of Assistant Engineer was required to be filled up as follows 4 Assistant 1 By direct recruitment
Engineer or 2 By transfer from among a Junior Engineer or PG NO 808 bSupervisors of the Andhra Pradesh Panchayati Raj Engineering Subordinate Service          c Out of every 8 vacancies among Assistant Engineers 3 shall be filled up or reserved to be filled up by direct recruits on the results of the competitive examinations and the remaining 5 by transferees
Note Rules 6 8ai and 29b of the General Rules for the Andhra Pradesh State and Subordinate Services shall not apply to the appointment of Assistant Engineers by direct recruitment in the Andhra Pradesh Panchayati Raj Engineering Service         
By Notification bearing GOMs
No 125 dated 2851973 Explanation c in the Special Rules relating to the method of recruitment of Assistant Engineers was substituted by a new explanation which read as follows c Out of every 8 vacancies among Assistant Engineers the 2nd 5th and 8th vacancies shall he filled in by direct recruits on the results of the competitive examination and the rest of the vacancies by transfer  Thus by the year 1978 the posts of Assistant Engineers now designated as Deputy Executive Engineers were be filled up either by direct recruitment or by transfer from among Junior Engineers or Supervisors or Draftsmen Ist Grade of Andhra Pradesh Panchayati Raj Subordinate Service and if no qualified or suitable candidates were available for recruitment as stated above by transfer from any other service or on tenure basis
Out of every eight vacancies in posts of Assistant Engineers the 2nd 5th and 8th vacancy had to be filled in by direct recruits on the result of the competitive examination and the rest of the vacancies by transfer The Special Rules further provided that rules 6 8ai and 29b of the General Rule would not apply to the appointment of Assistant Engineers by direct recruitment in the Andhra Pradesh Panchayati Raj Engineering Service and thereby it became permissible to the State Government to PG NO 809 take into consideration the number of temporary vacancies also in addition to the subqs vacancies in any year for purposes of recruitment
Three out of eight vacancies which included both substantive and temporary vacancies could be filled up by direct recruitment
In other words 37 12 per cent of the total number of vacancies both substantive and temporary vacancies in the cadre of Assistant Engineers could be filled by direct recruitment
The Chief Engineer of the Andhra Pradesh Panchayati Raj Engineering Service reported to the State Government in his letter dated 25111979 that the total number of posts of Assistant Engineers Permanent and Temporary excluding the cyclone posts available were 203 by the end of May 1979
Out of the said 203 posts the number of posts available for direct recruitment was 75 203 x 38 and that out of them 38 vacancies of Assistant Engineers had either been filled in by direct recruitment or notified to the Public Service Commission for selection and that the balance number of vacancies available for direct recruitment were 37 for the years 1978 and 1979
Out of these 37 remaining vacancies as 23 posts had been filled by Assistant Engineers selected in direct recruitment an estimate of 15 vacancies of Assistant Engineers was furnished to the Public Service Commission on 361978
For the recruitment years 1978 and 1979 the estimate of vacancies were due with the Public Service Commission in the first week of May 1978 and of May 1979
In accordance with the above rule then in force the State Government took the decision in February 1980 to notify 18 vacancies for the recruitment year 1978 and 18 vacancies for the recruitment year 1979
The Chief Engineer was informed of the decision of the State Govern ment to recruit the above said 18 plus 18 ie 36 vacancies in addition to the 15 vacancies already notified to the Public Service Commission and was asked to sent the zone wise break up of vacancies keeping in view the rules of special representation for Scheduled Castes Scheduled Tribes Backward Classes etc
After the receipt of the proposals from the Chief Engineer on 681981 the estimate of vacancies for the years 1978 and 1979 was also sent to the Public Service Commission for recruitment of Assistant Engineers
In the meanwhile the Public Service Commission had published an advertisement in or about September 1980 inviting applications for recruitment of Assistant Engineers directly specifying 811981 as the last date for submitting the applications
In that notification the Public Service Commission had intimated that 15 vacancies were available for recruitment as per the first communication received by it from the State Government
When the process of recruitment was in progress some of the officer
who were working as In charge Assistant Engineers or Junior Engineers PG NO 810 in the Panchayati Raj Department Engineering Service made representations to the State Government raising objection to the proposed direct recruitment of 51 Assistant Engineers on the basis of the total number of substantive and temporary vacancies which had arisen in the years 1978 and 1979 relying upon an amendment which had been made to the Special Rules by GOMs
No 227 dated 2841980 by which Explanation c and the proviso thereunder in the Special Rules had been substituted by the following explanation and proviso 37 12 of the substantive vacancies arising in the category of Assistant Engineers shall be filled by direct recruitment on the results of the competitive examination and the remaining 62 l2 by promotion or transfer as indicated under explanation d below   Their contention was that the 51 vacancies which had been notified to the Public Service Commission for direct recruitment could not be filled up any longer by direct recruitment as according to them after the amendment of the Rules on 2841980 only 37 12 per cent of the substantive vacancies could be filled up by direct recruitment They contended that the 5 1 vacancies which had been notified to the Public Service Commission had been arrived at by taking into consideration temporary vacancies also and that was not permissible after the amendment
They further urged that under the Special Rules as amended on 2841980 only 8 vacancies could be filled up by direct recruitment When the above representation made by them did not elicit any positive reply from the State Government they instituted Representation Petition No 508 of 1982 on the file of the Andhra Pradesh Administrative Tribunal for injunction restraining the State Government and the Public Service Commission from recruiting 51 persons as direct recruits to the cadre of Assistant Engineers The petition was opposed by the State Government It pleaded that the amendment made on 284 1980 to the Special Rules was only prospective in effect and had no effect on the vacancies which had arisen prior to the date on which the amendment was made and therefore it was open to the State Government to fill by direct recruitment 37 12 per cent of the total number of vacancies substantive as well as temporary in the cadre of Assistant Engineers which had arisen before the amendment
The Tribunal rejected the contention of the State Government and held that it was not permissible for the State Government to make recruitment to the 51 vacancies after the Special Rules were amended on 2841980 irrespective of the fact that the vacancies in question had arisen prior to the PG NO 811 date of the amendment
Accordingly the Tribunal directed the State Government and the Public Service Commission to refrain from making any direct recruitment against the temporary vacancies in the Andhra Pradesh Panchayati Raj Engineering Service contrary to the Special Rules as they stood amended from 2841980
Aggrieved by the decision of the Tribunal some of the candidates who had been selected by the Public Service Commission as Assistant Engineers filed a special leave petition in this Court under Article 136 of the Constitution of India requesting this Court to grant special leave to appeal against the judgment of the Tribunal
On 461982 this Court granted special leave to appeal against the judgment of the Tribunal and also stayed the operation of the judgment of the Tribunal
Thereafter the State Government issued a notification bearing GOMs
No 525 dated 30101982 appointing the appellants respondent No 4 and 48 others as Assistant Engineers now called Deputy Executive Engineers on temporary basis under rule 10ai1 of the General Rules
44 of the 51 candidates so appointed joined service as Deputy Executive Engineers
All those who joined the service accordingly have continued to be in the service of the State of Andhra Pradesh till now
It is not necessary for purposes of this judgment to decide all the contentions which had been raised by the petitioners who had filed the representation petition before the Andhra Pradesh Administrative Tribunal since the Tribunal has allowed the petition only on one ground namely that the recruitment in question was governed by the Special Rules as amended on 2841980 and not by the rules which were in force when the vacancies in question arose
It is clear from the Special Rules as they were in force prior to the amendment on 2841980 that it was open to the State Government to fill 37 12 per cent of the vacancies both substantive and temporary in the cadre of Assistant Engineers by direct recruitment It is also not in dispute that during the years 1978 and 1979 the position of the vacancies was such that it was permissible for the State Government to appoint 51 Assistant Engineers by direct recruitment
The only question which has now to be considered is whether the amendment made on 2841980 to the Special Rules applied only to the vacancies that arose after the date on which the amendment came into force or whether it applied to the vacancies which had arisen before the said date also
The crucial words in the Explanation which was introduced by way of amendment in the Special Rules on 2841980 were 37 12 per cent of the substantive vacancies arising in the category of Assistant Engineers shall be PG NO 812 filled by the direct recruitment
If the above clause had read 37 12 per cent of the substantive vacancies in the category of Assistant Engineers shall be filled by the direct recruitment perhaps there would not have been much room for discussion
The said clause then would have applied even to the vacancies which had arisen prior to the date of the amendment but which had not been filled up before that date
We feel that there is much force in the submission made on behalf of the appellants and the State Government that the introduction of the word arising  in the above clause made it applicable only to those vacancies which came into existence subsequent to the date of amendment
In Eramma vs Verrupanna  Ors the words the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter in section 8 of the came up for consideration
In that case this Court held that the words the property of a male Hindu dying intestate shall devolve occurring in section 8 made it very clear that the property whose devolution was provided for by that section must be the property of a person who had died after the commencement of the and it could not be the property which belonged to a Hindu male who had died before the said Act came into force The effect of the use of the word arising  in the Special Rules qualifying the word vacancies  is also the same
The clause which was introduced in the Special Rules by the amendment made on 2841980 cannot therefore be interpreted as having any effect on the vacancies which had arisen prior to the date of the amendment
We do not find any indication in the amendment that was made on 28 4 1980 that it would be applicable to the vacancies which had arisen prior to the date of the amendment even by necessary implication In the instant case the State Government had taken the decision even before the amendment came into force to fill up the vacancies by direct recruitment according to the law prevailing then
Had it been the intention of the State Government while promulgating the amendment that the amendment should be applicable to the vacancies which had arisen prior to the date of the amendment simultaneously the State Government would have addressed a letter to the Public Service Commission to make recruitment in accordance with the Special Rules as amended on 28 41980 No such action was taken by the State Government in this case
We may at this stage refer to another decision of this Court in Y V Rangaiah and Others etc
vs J Sreenivasa Rao and Others  1983 H 3 SCC 264 in which in a similar situation this Court has observed in Paragraph 9 at page 289 thus PG NO 813 The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules
It is admitted by counsel for both the parties that henceforth promotion to the post of Sub Registrar Grade II will be according to the new rules on the zonal basis and not on the State wide basis and therefore there was no question of challenging the new rules But the question is of filling the vacancies that occurred prior to the amended rules
We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules  The facts of the case before us are in no way different from the facts involved in the above decision In view of the foregoing we are of the view that the observations made by the Tribunal to the following effect namely In this case the rules for recruitment have been changed on 2841980
Hence prima facie it would not be legal to make direct recruitment against temporary vacancies even if the vacancies were at an earlier date ear marked for direct recruits  
In these circumstances there is in my opinion no scope for direct recruitment against temporary vacancies after 2841980 ie the date on which the rules were amended as stated above are unsustainable
We hold that the amendment made on 28 4 1980 does not apply to the vacancies which had arisen prior to the date of the amendment We accordingly set aside the judgment of the Tribunal and remand the case to it again to decide in the light of the above observations the other contentions which had been raised by the persons who had filed the Representation Petition before the Tribunal and to dispose of the case on the basis of the findings to be recorded by it on those contentions The appeal is accordingly disposed of
There is no order as to costs
RSS Appeal disposed of


Summary:
The appellant was charged under section 95lii of the Gold Control Act 1968 pursuant to seizure of 7000 tolas of foreign mark gold from his possession
He pleaded guilty to the charge and was convicted and sentenced to the maximum punishment of imprisonment for 7 years and fine of Rs10 lakhs prescribed under the Act
On appeal the High Court confirmed that sentence but reduced the fine to Rs5 lakhs
The Supreme Court confirmed the sentence in a special Leave petition filed by the appellant
While the appellant was under judicial custody he was again prosecuted along with 19 others under section 135 of the Customs Act for smuggling of gold and export of silver out of India
The appellant pleaded guilty to the charge and was convicted and sentenced for 4 years RI with fine of Rs2 lakhs by trial court
Both sentences were ordered to run consecutively
On appeal the High Court enhanced the sentence from 4 years to the maximum prescribed punishment of 7 years on the ground that the enormity of the crime committed by the appellant warranted nothing else than the maximum sentence
Allowing the appeal by the appellant on the question of sentence HELD 1
Section 427 Cr
PC relates to administration of criminal justice and provides procedure for sentencing
The basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences
If a given transaction constitutes two offences under two enactments generally it is wrong to have consecutive sentences
It is proper and legitimate to have concurrent sentences
But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different751CD E PG NO 746 PG NO 747 2i The enormity of the crime committed by the accused is relevant for measuring the sentence
But the maximum sentence awarded in one case against the same accused is not irrelevant for consideration while giving the consecutive sentence in the second case although it is grave
The court has to consider the totality of the sentences which the accused has to under go if the sentences are to be consecutive
The totality principle has been accepted as correct principle for guidance
753EF R vs Edward Charles French 1982 Cr
R S p 1 at 6 referred to
In the instant case the trial court has properly considered all aspects including the plea of guilty and given good reasons for awarding 4 years RI
That means in all the appellant has to undergo 11 years of imprisonment
That by itself is quite Long enough in a man s life
But the High Court took a narrow view of the whole matter with the enormity of the crime on the forefront
753G H 2ii The broad expanse of discretion left by legislation to sentencing courts should not be narrowed only to the seriousness of the offence
No single consideration can definitively determine the proper sentence
In arriving at an appropriate sentence the court must consider and some times reject many factors
The court must recognise learn to control and exclude  many diverse data
It is a balancing act and tortuous process to ensure reasoned sentence
In consecutive sentences in particular the court cannot afford to be blind to imprisonment which the accused is already undergoing
753H  754A B 3
Generally it is both proper and customery for courts to give credit to an accused for pleading guilty to the charge
But no credit need be given if the plea of guilty in the circumstance is inevitable or the accused has no alternative but to plead guilty
The accused being caught red handed is one such instance
753B