vil Appeal No 733 NCE of 1988
From the Judgment and Order dated 2511988 of the Andhra Pradesh High Court in Election Petition No 1 of 1985
G Ramaswamy Additional Solicitor General AV Rangam and J Eswanah for the Appellant
R Vasudev Pillai TVS Krishnamurthy Iyer Subodh Markandeya Smt
Chitra Markandeya G Seshagiri Rao Ms Usha Saraswat P Parmeshwaran Ms A Subhashini and M Narayan Reddy inperson for the Respondents
842 The Judgment of the Court was delivered by THOMMEN J
This appeal by special leave arises from the order of the high Court of Andhra Pradesh dated 2511988 in Election Petition No 1 of 1985
The High Court by the impugned order set aside the proceedings of counting and the resultant declaration made on 28121985 in respect of the election to the Lok Sabha held on 27121984 from 34 Nizamabad Parliamentary Constituency consisting of 7 Assem bly Segments
The High Court directed the Secretary to the Election Commission to conduct the counting of the votes afresh in the said Constituency from which the appellant was declared elected to the Lok Sabha
The 1st respondent M Narayan Reddy was one of the six candidates who contested the election
According to the result declared by the Re turning Officer the appellant secured 251172 votes while the 1st respondent the election petitioner secured 248725 votes
The 1st respondent filed Election Petition under Sections 80 and 81 of the Representation of the People Act 195 1 43 of 1951 hereinafter referred to as the Act  seeking a declaration that the election of the appel lant was void and that the 1st respondent was duly elected from the said Constituency
The election was challenged by the 1st respondent broad ly on three grounds 1
Illegalities and irregularities in the counting of votes
Impersonation of voters and 3
Corrupt practices
The High Court on the basis of the pleadings of the parties framed 25 issues of which Issue No 7 alone is relevant in the present proceeding
The election was set aside by the High Court solely on the basis of Issue No 7 the other issues having been either not pressed by the election peti tioner or found against him
Issue No 7 reads Whether the Additional Assistant Returning Officers were not authorised to perform the duties and functions of the Returning Officers as alleged by the election petitioner The pleading in regard to this issue is contained in paragraph 13 of the Election Petition
It reads 843 Be that as it may the Additional Returning Officers in respect of this Parliamentary constituency were not appointed and authorised by the Election Commission to perform the duties and functions of the Returning Officer
Therefore every action taken by the said Additional Assistant Returning Officers including the rejection of doubtful ballot papers is absolutely illegal void and for bidden by law
Hence it is a serious irregularity affecting the validity of counting procedure adopted for counting of votes and on this ground alone the petitioner is entitled to inspection of the ballot papers and order for recount
These irregular ities have taken place during the counting in all the count ing hails numbering 7 in total
 This allegation was refuted by the appellant in his written statement
He contended that the officers were properly appointed and duly authorised
Among the witnesses who testified on behalf of the appellant in support of his contentions on this issue was RW 8 an Under Secretary to the Election Commission
He produced Exs
B 22 to B 28 and Exs
A 86 to A 88 as well as exhibit X 1 containing documents relating to the relevant pro ceedings connected with the appointment of the Additional Assistant Returning Officers
Certain documents initially produced and sought to be filed by the appellant as addi tional documents were marked as Exs
C 5 to C 8 at the instance of the election petitioner the 1st respondent herein
The controversy under Issue No 7 as seen above was whether the Additional Assistant Returning Officers were duly appointed by the Election Commission
The Court on consideration of the relevant documents held that they were not duly appointed by the Election Commission and that the votes of the 7 Assembly Segments of the said Constituency were liable to be recounted
The Court accordingly issued directions in that behalf to the Election Commission
The main contention of the election petitioner appear ing in person in the High Court as well as here has been that the officers in question were not duly appointed by the Election Commission and that their purported exercise of power as Additional Assistant Returning Officers was without authority and in contravention of the relevant legal provi sions
We see no merit in this contention
844 The testimony of RW 8 and the documents proved by him leave no doubt that the officers in question were duly appointed by the Election Commission
RW 8 says It is true that exhibit A 55 is the copy of the notification issued by the Election Commission of India and as is clear from the document it was published in the AP Gazette
This notification exhibit A 55 shows that the District Collec tor Nizamabad was appointed as a Returning Officer for Nizamabad constituency
There is another notification No 434AP842 showing appointment of Asst
Returning Offi cers
At Srl No 34 of the said notification the Joint Collector Nizamabad and Personal Asst
to Collector Niza mabad were appointed as Asst
Returning Officers to the said Constituency
The Commission received proposals from the Chief Electoral Officer Andhra Pradesh appointing Asst
Returning Officers for all the 42 Parliamentary Constituen cies including Nizamabad constituency
On receipt of the proposals from the Chief Electoral Officer the Election Commission of India approved the proposals and this is the true copy of the proposal that is approved
It is marked as exhibit B 22
The letter received from the Chief Electoral Officer as marked as exhibit B 23
It also contains the list of 21 Asst
Returning Officers for Nizamabad Parliamentary Constituency
This notification covers all the 42 Parliamen tary constituencies including that of Nizamabad
The pream ble to the notification is given in the notification dated 191184
On that basis to this notification the approved list of Asst
Returning Officers is attached to this notifi cation
The notification was signed by the Under Secretary
This notification exhibit B 24 was issued by the Under Secre tary
This notification was approved by the Secretary Election Commission of India New Delhi
exhibit B 25 shows that this was approved by Sri
K Ganeshan on 18111984 who was at that time the Secretary to the Election Commission of India
 New Delhi and a notification was issued consequently on 191184
exhibit B 26 is the original notification showing the amendments made in respect of Asst
Returning Officers in some parliamentary constituencies in the state of Andhra Pradesh and that includes Nizamabad parliamentary constitu ency also
Serial No 13 is amended designation of the Asst
Returning Officer was approved by the Secretary as proposed by 845 the Chief Electoral Officer AP The ultimate notification exhibit B 24 was issued by the Under Secretary but the approval was made as per exhibit B 25 by the Secretary to the Election Commission
The notification of exhibit B 24 was communicated as per exhibit B 22 to the Chief Electoral Officer AP Copies of these notifications were communicated to the Chief Secretary of Andhra Pradesh also
The amended notification date 30 11 84 was also communicated to the Chief Electoral Officer Andhra Pradesh and a copy of it was also communi cated to the Chief Secretary Andhra Pradesh
exhibit B 27 is the true copy of the notification showing the amendments in the list of the Assistant Returning Officers
Ex B 28 is the communication of the approval of the amendments conveyed to the Chief Electoral Officer Andhra Pradesh by telex message and copy of the notification date 30 11 84 was sent with the post copy of the message
 exhibit X 1 contains the original documents the relevant copies of which are marked as Exs
B 23 dated 14111984 B 25 dated 18111984 B 22 dated 19111984 B 24 dated 19111984 and B 26 dated 30111984
We have carefully examined the original documents
We are satisfied that the testimony of RW 8 is fully supported by the documents he has referred to
By exhibit B 23 dated 14111984 see page 81 of exhibit X 1 the Chief Electoral Officer Andhra Pradesh wrote to the Secretary to the Election Commission enclosing a revised list of officers proposed for appointment as Addi tional Assistant Returning Officers for all the 42 Parlia mentary Constituencies for the purpose of counting of votes etc
and requesting for the approval of the list by the Election Commission
The revised list at page 137 of exhibit X 1 contains the names of the officers for 34 Nizamabad Parlia mentary Constituency
By exhibit B 25 dated 18111984 see pages 1 2 of exhibit X 1 the list was approved by Shri K Gane shan the Secretary to the Election Commission
His signa ture dated 18111984 appears at page 2 of exhibit X 1
That was an approval of the note dated 18111984 put up by Shri SR Sethi the Under Secretary to the Election Commission reading CEO s proposals at section Nos 7 and 8 above and the action suggested at A  above may be approved
 It is thus clear that the proposal made by the Chief Election Officer and the revised list submitted by him received the approval of the Secretary to the Election Commission
It has to be noticed in this connection that Section 19A of the Act empowers the Secretary to the Election Commission to per form subject to certain 846 conditions the functions of the Election Commission under the Constitution and relevant statutes and rules
The Secre tary is therefore competent to give approval to the re vised list containing the names of officers proposed by the Chief Electoral Officer
This fact of approval was duly communicated by the Secretary to the Election Commission to the Chief Electoral Officer Andhra Pradesh by telex message sent on 19111984 see exhibit B 22 at page 158 of exhibit X 1
It was clarified in exhibit B 22 that the notification of the Election Commission was not published in the Gazette of India and it was not required to be published in the State Gazette
The notification of the Election Commission was sent with the post copy of the telex message
exhibit B 24 dated 9111984 which is the post copy authenticated by Shri SR Sethi the Under Secretary to the Election Commission is that notification see pages 156 157 of exhibit X 1
It says that In exercise of the powers conferred by sub section 1 of section 22 of the Representation of the People Act 195 1 43 of 195 1 the Election Commission hereby appoints   
A list of the Assistant Returning Officers appointed under the notification is appointed in the table to exhibit B 24 and it begins with Srikakulam Par liamentary Constituency
The names of the constituencies and the officers are mentioned in the order in which they are stated by the Chief Electoral Officer in his revised list appended to exhibit B 23
However exhibit B 24 specifically mentions only Srikakulam Parliamentary Constituency
At the end of the names in respect of that Constituency the Under Secretary authenticating the notification merely says please see pp 82 157
These are the pages of exhibit X 1 containing the entire revised list
By this device the entire list appended to exhibit B 23 was incorporated into exhibit 24 notification and the need for typing out all the names in exhibit B 24 was thus avoided
exhibit B 26 dated 30111984 see pages 177 179 of exhibit X 1 is a notification issued by the Election Commission making certain amendments to its earlier notification dated 19111984
Serial No 17 of exhibit B 26 at page 178 of exhibit X 1 reads At section No 13 against item No 34 Nizamabad the entry 13
District Manager APSCSC Nizamabad shall be substi tuted This shows that the amendment in respect of 34 Nizamabad Parliamentary Constituency made by exhibit B 26 by substituting entry 17 for the relevant entry in the revised list appended to exhibit B 23 was in affirmation of the incorporation of the entire revised list in exhibit B 24
In the light of this evidence there is no merit in the contention 847 that the revised list was not approved by the Secretary to the Election Commission and that the notification evidenced by exhibit B 24 did not relate to 34 Nizamabad Parliamentary Constituency
As stated earlier exhibit B 25 evidences the approval given by the Secretary to the Election Commission to the revised list proposed by the Chief Electoral Officer and the approval was duly notified and communicated by the Under Secretary to the Election Commission to the Chief Electoral Officer Andhra Pradesh with a request to exhibit the notification on the notice boards of the offices of the concerned District Election Officers and Returning Officers
In this connection it may be noticed that Under Secre taries are duly authorised to authenticate all orders notifications and Other instruments on behalf of the Elec tion Commission see notification No 226558 of Gazette of India dated 54
1958 appended to Volume I of Paper Book page 170
In the circumstances we see no merit in the contention of the election petitioner the 1st respondent herein that the concerned officers for the Parliamentary Constituency in question had not been duly appointed by the competent au thority and that they were therefore not authorised to perform the duties and functions of the Assistant Returning Officers
These Officers were appointed by the Secretary to the Election Commission who is undoubtedly to a competent authority to make such appointments and his order appointing them had been duly notified to the Chief Electoral Officer by communicating the same by an officer who was competent to authenticate such orders
The notification was directed to be exhibited on the notice boards of the concerned offices
No statutory provision has been brought to our notice re quiring formal publication of such notification in an Offi cial Gazette
Publication of the notification by exhibition on the notice boards was in our view sufficient notice to all persons concerned
Accordingly we hold that the High Court was not justi fied in setting aside the proceeding of counting of votes and the resultant declaration and in ordering a fresh count ing of votes in respect of the election from the Parliamen tary Constituency in question
Consequently we set aside the impugned order of the High Court insofar as it relates to the findings and directions regarding Issue No 7
The appeal is allowed in the above terms
In the circumstances of this case we make no order as to costs
GN Appeal al lowed


Summary:
The Armed Forces Headquarters Clerical Service Rules 1968 were brought into force with effect from March 1968
The rules provided that seniority in the service shall be determined on the basis of date of confirmation
Prior to this the seniority in the cadre of service was required to be determined on the basis of length of service as laid down by several official memoranda of the Government or that of the Defence Ministry
After the rules came into force the seniority of the appellants who joined the Armed Forces Headquarters as LDCs between 1960 and 1964 on transferposting from the lower defence installations in public interest and some of whom were later promoted as UDCs was sought to be dis turbed on the basis of confirmation as prescribed under the rules
The appellants therefore moved the High Court contending that the length of service should be the basis of inter se seniority
A Single Judge of the High Court held that ordinarily the appellants would have been governed by the general principle of seniority based on the date of confirmation as laid down in the 1959 Memorandum of the Home Ministry but since the Ministry of Defence had preferred to continue the principle of length of service which it had been following prior to 1959 even after the 1959 Memorandum and which had been incorporated in 1963 Memorandum and reiterated in all memoranda issued thereafter the seniority of the appellants should be decided by length of service
ie their date of joining the Army Headquarters as LDCs
On appeal by Union of India the Division Bench held that the 792 seniority of the appellants must fail to be determined on the basis of confirmation as prescribed by the rules and not on the length of service
Aggrieved by this the appel lants filed appeals before this court
Allowing the appeals HELD The general rule is if seniority is to be regulat ed in a particular manner in a given period it shall be given effect to and shall not be varied to disadvantage retrospectively
795F G The Armed Forces Headquarters Clerical Service Rules 1968 no doubt provide that all persons substantially ap pointed to a grade shall rank senior to those holding offi ciating appointments in the grade
But the rules have no retrospective effect
It could not impair the existing rights of officials who were appointed long prior to the Rules came into force
795A B The various office memoranda clearly laid down that length of service should be the guiding principle of arrang ing inter se seniority of officials
795B The appellants being governed by those memoranda had the right to have their seniority determined accordingly before the Rules came into force
That being their right the rules cannot take it away to their prejudice
The Division Bench was therefore clearly in error in directing that the seniority shall follow their respective confirmations
795B C Union of India vs M Ravi Varma  Anr  at 1002
relied on