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 59673
PP Rao and TVSN Chari for the Appellants
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 eligible for promotion to the post of Tehsildar of the names of 63 persons impleaded as re spondents Nos 4 to 66 in the writ petition
These 63 persons were working as Upper Division Clerks in the erst while 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 held by them prior to November 1 1956 would be governed by the Hyderabad Cadre and Recruitment Rules for promotion which were ap plicable 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 promot ed to the post of Deputy Tehsildar which was the first stage promotion for them
Later this order dated April 7 1960 was made a statutory rule namely rule 42hi 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 Depart ment hereinafter referred to as the Special Rules were made on July 17 1952 but mane effective retrospectively from November 1 1956
These Rules cover two categories of service we are concerned here with category 2 Tahsildars
Rule 4a of the rules says inter alia that the qualifica tions of a candidate for appointment to the post of Tahsil dar shall be as specified in the annexure to the rules
The annexure provides 704 that a Tahsildar recruited by transfer from the 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 passed a criminal judicial test can be invested with magis terial powers under the orders in force  Under rule 4a 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 Tahsildar is eligi ble 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 de clared 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 appoint ment as Tahsildars on November 14 1966 and June 18 19 69 respectively
The respondents and the said 63 Deputy Tahsildars all belong to 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 4a of the Special Rules on their promotion as Deputy TahsiIdars
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 eligi ble candidates assuring the Public Service Commission that the Government would relax the requirement as to qualifica tion in favour 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 4a of the Special Rules relating to the qualifica tions required of Duty 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 Tahsil dar 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 back ground of facts and states the reasons for relaxation of rule 4a of the Special Rules in the case of these employ ees
The material part of the order is as follows The Government have had under consideration for sometime past the preparation of panels of Tahsil dars of the Telengana Region
According to Rules 4a read with 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 catego ry of 705 Deputy Tahsildars of the Andhra Pradesh Revenue Subordinate Service by the 1st July of the year to which the list relates and should have exercised 11I class and II class Magisterial powers respec tively 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 offi cers from Telengana for whom promotion to the category of Deputy 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 pre scribed in the Hyderabad Cadre and Recruitment Rules for II Grade Clerks Upper Division Clerks on their promotions to the post of Deputy Tahsil dars
Therefore the question of their becoming approved probationers in the category of Deputy Tahsildars does not arise
Further the Hyderabad 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 opportunity of exercising magisterial powers while working as Deputy Tahsildars
In the circumstances it was felt that it would be unfair to exclude such per sons from consideration for promotion to the cate gory of Tahsildars on the ground that they were not approved probationers andor had not exercised magisterial powers
The Public Service Commission was therefore requested to consider the names also of the Deputy Tahsildars 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 qualifications 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 Rule 4a 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 ap plicable to the case of any person or a class of persons the cases shall not 706 be dealt with in any manner less favourable to the person or class of persons than that provided by that rule
 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 Commis sion 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 appropri ate 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 Pradesh State and Subordinate Services Rub 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 47 power was given to the Governor personally to relax the rules and the impugned order dated June 30 1971 which was passed nor 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 con ferred by rule 47 of the Andhra Pradesh State and Subordi nate Services Rules is exercisable by the Governor personal ly is based on the Judgment of this Court in Sardari Lal vs Union of India  ors
1 But Sardari Lal s case has been overruled by the later decision of this Court in Shamsher Singh vs State of Punjab 2 and counsel for the respond ents rightly conceded that the impugned order cannot be assailed 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 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 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 4a 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 opera tion
Rule 47 of the Andhra Pradesh State and Subordinate Services 1  2 1975 I SCR 814
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 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 Services Medical 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 10b proviso of the Indian Forest Service Appointment by Competitive Examination Regulations 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 47 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 47 with retro spective 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 RP Khanna  Ors
vs SAF Abbas  Ors
C In that case the Court was dealing with rule 33b of the Indian Administrative Service Regulation of Seniority Rules 1954 which lays down that the year of allotment of an officer who was ap pointed to the Service by promotion shall be the year of allotment of the junior most among the officers who entered the service by direct recruitment who officiated continuous ly in a senior post from a 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 continuously in a senior post prior to the date of inclusion of his name in the select list pre pared in accordance with the requirements of the Indian Administrative Service Appointment by Promotion Regula tions if the period of such officiation prior to that date was approved by the Central Government in consultation with the Union Public Service Commission
Overruling a conten tion raised on behalf of the direct recruits that it was not open to the State to make a retrospective 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 condi tions 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 promotees obtain promotion from the State Civil Service after long service
That is why rule 33b of the Regulation of Seniority Rules is designed to arrive at a fair adjustment 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 equivalent to a senior cadre post before the promotee was appoint 1 f19721 3 SCR 548
708 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 alia by reason of the effi ciency of the person which has entitled him to promotion that the consequential necessity arises for giving him that senior post by requisite decla ration of a senior post
A retrospective declara tion therefore is in the scheme of things practical as well as reasonable
 Counsel for the respondents drew our 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 neces sarily 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 proba tioner 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 Novem ber 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 case of the said 63 Deputy Tahsildars
However the rule as amended does not arise for consideration in this appeal which directed against 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 ease we make no order as to costs


Summary:
The respondent filed a Writ Petition in the High Court questioning the 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 would 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 Tahsildars which was the first stage promotion for them
In 1962 Andhra Pradesh Civil Services Coopera tion Branch  Special Rules were framed but were made effective retrospectively from 1st November 1956
Under rule 4a the State Government has to prepare in consulta tion 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 4a 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 Tahsildars provided they were otherwise found suitable by the Commission
By order dated 30 6 1971 the Governor relaxed the provisions of rule 4a of the Special Rules in exercise of powers under section 47 of the Andhra Pradesh State and Subordinate Services Rules 1962
The respondents filed a Writ Petition for quash ing the order dated 30 6 1971 in the High Court
The re spondents 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 retrospec tively
It was also held that under rule 47 power was given to Governor personally and therefore the exercise of it by the Governor was invalid
In an appeal by special leave the appellant contended 1
That rule 47 did not confer any power to relax a rule retrospectively
The power was given to the Governor personally to relax the rules and since the impugned order was not passed by the Governor but by the 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 703 in Sardarilal vs Union of India 1971 3 SCR 461
The said decision stands overruled by the later decision of this Honble Court in Shamsher Singh vs State of Punjab  706 E F 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 case where there has been a failure of justice
In all these cases justice can be done only by exer cising the power under rule 47 with retrospective effect otherwise the object and purpose of the rule will be largely frustrated
Such a provision is not unique and is to be found in several statutory rules
707 A C RP Khanna  Ors
vs SAF Abbas  Ors   followed