N Criminal Appeal No 690 of 1982 etc
From the Judgment and order dated 2051982 of the Patna High Court in Criminal Appeal No 329 of 1980
RK Garg RK Jain Rajendra Singh SN Jha RP Singh Rakesh Khanna Md Israeli and Ranjit Kumar for the Appellants
Pramod Swaroop and Mrs GS Misra for the Respondents
BB Singh Not Present for the Respondents
AK Panda for the Complainant in all the appeals
The Judgment of the Court was delivered by DUTT J
These appeals are directed against the judgment of the Patna High Court affirming the order of the First Additional Sessions Judge Arrah convicting all the appellants under sections 30234 IPC and section 27 of the Arms Act and sentencing each of them to rigorous imprisonment for life and rigorous imprisonment for three years respectively and further convicting the appellant Hare Krishna Singh under section 379 IPC and sentencing him to rigorous imprisonment for three years all the sentences are to run concurrently
The accused included two persons having the same name Paras Singh one of Village Dhobaha brother in law of Hare Krishna Singh one of the appellants in Criminal Appeal No 690 of 1982 and the other of Village Birampur and nephew of Jagdish Singh the appellant in Criminal Appeal No 616 of 1982
We shall hereinafter refer to 6 the said two persons as Paras Singh of Dhobaha  and Paras Singh of Birampur  respectively
The prosecution case as appearing from the Fardbeyan or the FIR lodged by one Sarabjit Tiwary PW 3 a social worker on 12121987 in the Arrah Sadar Police Station was that on that day at about 700 AM he was going to his brother in law Raghubir Mishra and just he reached near the main gate of the Sadar Hospital he saw seven persons namely 1 Hare Krishna Singh resident of Dhanpura 2 Sheo Narain Sharma resident of Berkhembe Gali 3 Ram Kumar Upadhyaya resident of village Dumaria 4 Jagdish Singh s nephew of Birampur in military service 5 brother in law of Hare Krishna Singh of Dhobaha in military service and two more persons whom he could not identify
All the said persons were armed with rifle gun and pistol and were standing near northern side of the eastern gate of the hospital
At that time two Rickshaws were coming from the eastern side
In the front Rickshaw Jitendra Choudhary and another person named Lallan Rai Resident of village Maniya were sitting and in the rear Rickshaw there were two girls
As the Rickshaw of Jitendra Choudhary came near the persons mentioned above all of a sudden Hare Krishna Singh fired at Jitendra Choudhary from his gun whereupon the latter fell down from the Rickshaw with the rifle which he was carrying with him
The other persons also fired upon Jitendra Choudhary along with Hare Krishna Singh as a result of which he died
After that Hare Krishna Singh picked up the rifle of Jitendra Choudhary and touching his body said He is dead let us take to our heels
It may be mentioned here that the two girls referred to in the Fardbeyan or FIR are Premlata Choudhary PW 1 and Sobha Choudhary PW 2 sisters of the deceased Jitendra Choudhary
After investigation by PW 9 the chargesheet was submitted against all the appellants and they were put up for trial
The prosecution examined as many as 9 witnesses of whom PWs 1 2 3 and 8 were eye witnesses
The defence of Hare Krishna Singh was that he was going to Patna along with the appellant Ram Kumar Upadhyaya and one Madan Singh in a Rickshaw and when the Rickshaw reached near the shop of Sita Ram he received a bullet from behind and fell down
He looked back and saw that one Dipu Prasad and Ram Lal were firing
He also saw the deceased Jitendra Choudhary Chhatu Choudhary and Lallan Rai PW 8 firing from the eastern gate of the Hospital
He examined five witnesses DWs 1 to 5 to prove the nature of injury sustained by him
7 The defence of Paras Singh of Dhobaha was that he had not visited the village Dhanpura for the last fifteen years
The defence of other appellants is also a denial of their complicity in the crime
The learned Additional Sessions Judge after an elaborate discussion and analysis of the evidence adduced on behalf of the parties accepted the prosecution case and convicted and sentenced the appellants as mentioned above
Regarding the injury sustained by Hare Krishna Singh the learned Additional Sessions Judge was of the view that such injury had been deliberately introduced by him and held that he was not injured in the occurrence
On appeal by the appellants the High Court affirmed their convictions and sentences
Hence these appeals be special leave
It is contended by Mr Garg learned Counsel appearing on behalf of Hare Krishna Singh one of the appellants in Criminal Appeal No 690 of 1982 that the prosecution having failed to explain the injury sustained by the appellant in the same occurrence such injury being a serious one the prosecution witnesses should be disbelieved
Counsel submits that in such circumstances it should be held that the plea of the appellant of self defence has been probabilised and that the prosecution must have withheld the true facts as to the genesis and origin of the occurrence
Further it is submitted that in any event it has cast a great doubt on the prosecution case and the benefit of that doubt should go to the appellant
The question however is whether it is an invariable rule that whenever an accused sustains an injury in the same occurrence the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved
Before answering the question we may refer to a few decisions of this Court cited at the Bar
Mr Garg has placed much reliance upon the decision of this Court in Lakshmi Singh vs State of Bihar In that case the accused sustained injuries in the same occurrence
Fazal Ali J who delivered the judgment of the Court observed that no independent witness had been examined by the prosecution to support the participation of the appellant in the assault
Further it was observed that the evidence of PWs 1 to 4 clearly showed that they gave graphic description of the assault with regard to the order the manner and the parts of the body with absolute consistency which gave an impression that they had given a parrot like version acting under a conspiracy to depose to one set of facts and one set of facts only
In view of the nature of evidence of PWs 1 to 4 this 8 Court accepted the contention made on behalf of the accused particularly taking the entire picture of the narrative given by the witnesses that PWs 1 to 4 had combined together to implicate the accused falsely because of the long standing litigation between them and the said witnesses
Thereafter the Court considered the injuries that were inflicted on the person of the accused Dasrath Singh and laid down that where the prosecution fails to explain the injuries on the accused two results follow 1 that the evidence of the prosecution witness is untrue and 2 that the injuries probabilise the plea taken by the appellants
The principle of law laid down in the earlier decision of this Court in Mohar Rai vs State o f Bihar  was followed
In Mohar Rai s case it has been laid down that in a murder case the non explanation of the injuries sustained by the accused at about the time of the occurrence or in the case of altercation is a very important circumstance from which the court can draw the following inferences 1 that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version 2 that the witnesses who have denied the presence of the injuries on the person of the accused are Lying on a most material point and therefore their evidence is unreliable 3 that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case
The principles that have been laid down in Lakshmi Singh s case have to be read in the context of the facts of that case
It has been already pointed out that the prosecution witnesses have been disbelieved by this Court before it considered the question of failure of the prosecution to explain the injuries sustained by one of the accused
If the prosecution witnesses had been believed in that case the non explanation of the injuries sustained by the accused would not have affected the prosecution case
Indeed it has been laid down in Lakshmi Singh s case that the non explanation of the injuries by the prosecution will not affect the prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent so independent and disinterested so probable consistent and creditworthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries
In Mohar Rai s case supra the first appellant Mohar Rai was convicted under section 324 IPC for shooting and injuring PW 1 at the instigation of the second appellant Bharat Rai who was himself convicted of an offence under section 324 read with section 109 IPC
9 The prosecution proceeded on the basis that the revolver exhibit III which was recovered from Mohar Rai was the weapon that was used by him in the commission of the offence
The ballistic expert who was examined as DW 1 was positive that the seized empties as well as the misfired cartridge could not have been fired from exhibit III
The evidence of DW 1 was accepted both by the trial court as well as by the High Court
This Court rejected the prosecution case that Mohar Rai had fired three shots from exhibit III
This Court held that once it was proved that the empties recovered from the scene could not have been fired from exhibit III the prosecution case that those empties were fired from exhibit III by Mohar Rai stood falsified
Thereafter the injuries sustained by the two appellants Mohar Rai and Bharath Rai were considered by the Court and it held that the prosecution had failed to explain the injuries sustained by the appellants and observed that the failure of the prosecution to offer any explanation in that regard showed that the evidence of prosecution witnesses relating to the incident was not true or at any rate not wholly true
Thus in this case also the question of non explanation of the injuries on the accused was considered by the Court after it had rejected on a consideration of evidence the prosecution case that Mohar Rai had fired from the revolver exhibit III
In other words if the prosecution case had been believed that the appellant Mohar Rai had fired from exhibit III injuring PW 1 the non explanation of the injuries sustained by the accused would not have affected the prosecution case
On the other hand in Bhaba Nanda Sharma vs State of Assam  it has been categorically laid down by this Court that the prosecution is not obliged to explain the injuries on the person of the accused in all cases and in all circumstances
It depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused
In Ramlagan Singh vs State of Bihar this Court again examined the question and it has been laid down that the prosecution is not called upon in all cases to explain the injuries received by the accused persons
It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons
When that is not done there is no occasion for the prosecution witnesses to explain the injuries on the person of the accused
In the instant case also the injury sustained by the appellant Hare Krishna Singh has not been put to the prosecution witnesses and so they had no occasion to explain the same
In such circumstances as laid down in Ramlagan Singh s case the non mention of the injuries on the person of the appellant in the prosecution evidence would not 10 affect the prosecution case which has been accepted by the courts below
In Onkarnath Singh vs State of U P this Court has reiterated its view as expressed in Bankey Lal vs State of UP and Bhagwan Tana Patil vs State of Maharashtra that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused
Thereafter it was observed as follows Such non explanation however is a factor which is to be taken into account in judging the veracity of the prosecution witnesses and the court will scrutinise their evidence with care
Each case presents its own features
In some case the failure of the prosecution to account for the in juries of the accused may undermine its evidence to the core and falsify the substratum of its story while in others it may have little or no adverse effect on the prosecution case
It may also in a given case strengthen the plea of private defence set up by the accused
But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self defence by the complainant party
For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries no question of private defence arises
Much reliance has been placed by Mr Garg on the following observation of Fazal Ali J in Jagdish vs State of Rajasthan  It is true that where serious injuries are found on the person of the accused as a principle of appreciation of evidence it becomes obligatory on the prosecution to explain the injuries so as to satisfy the Court as to the circumstances under which the occurrence originated
But before this obligation is placed on the prosecution two conditions must be satisfied 11 1
that the injuries on the person of the accused must be very serious and severe and not superficial 2 that it must be shown that these injuries must have been caused at the time of the occurrence in question
 In Jagdish s case the High Court believed the prosecution witnesses and accepted the prosecution case that the injuries found on the deceased were very severe which resulted in his death and this Court agreed with the view taken by the High Court in convicting the appellant under section 302 IPC
In regard to this point we may cite two other decisions relating to the plea of the accused of private defence
In Munshi Ram vs Delhi Administration it has been held by this Court that although the accused have not taken the plea of private defence in their statements under section 342 Cr PC necessary basis for that plea had been laid in the cross examination of the prosecution witnesses as well as by adducing defence evidence
It has been observed that even if an accused does not plead self defence it is open to the court to consider such plea if the same arises from the material on record
The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record
Munshi Ram s case arises out of a dispute over the possession of land
The case of the appellants that their relation was a tenant of the disputed land for over thirty years and that his tenancy was never terminated was accepted by this Court
In other words the appellants were found to be in lawful possession of the land in question and that PWs 17 and 19 had gone to the land with their friends PW 19 being armed with a deadly weapon with a view to intimidating the relation of the appellants whose tenancy was not terminated
They were held to be guilty of criminal trespass and of constituting an unlawful assembly
In the context of the above facts this Court made the observation that it is open to the court to consider the plea of private defence even though the same does not find place in the statement under section 342 Cr
The next case that has been relied upon by Mr Garg is that of State of Gujarat vs Bai Fatima in that case on behalf of the appellants the decision in Munshi Ram s case supra was relied 12 upon in regard to the question of the plea of private defence
In rejecting the contention of the accused this Court pointed out that not only the plea of private defence was not taken by the accused in their statements under section 342 Cr
PC but no basis for that plea was laid in the cross examination of the prosecution witnesses or by adducing any defence evidence
As regards the injuries sustained by one of the accused this Court observed as follows In material particulars the evidence of the three eye witnesses as also the evidence of dying declaration of the deceased before PW Gulamnabi is so convincing and natural that no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of respondent No 1
The prosecution case is not shaken at all on that account
We have referred to the above decisions in extenso in order to consider whether it is an invariable proposition of law that the prosecution is obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain the injuries on the person of the accused would mean that the prosecution has suppressed the truth and also the genesis or origin of the occurrence
Upon a conspectus of the decisions mentioned above we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case
In other words it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence
The burden of proving the guilt of the accused is undoubtedly on the prosecution
The accused is not bound to say anything in defence
The prosecution has to prove the guilt of the accused beyond all reasonable doubts
If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise
When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused
The accused may take the plea of the right of private defence which means that he had inflicted injury on the deceased or the injured 13 person in exercise of his right of private defence
In other words his plea may be that the deceased or the injured person was the aggressor and inflicted injury on the accused and in order to defend himself from being the victim of such aggression he had inflicted injury on the aggressor in the exercise of his right of private defence
As has been held in Munshi Ram s case supra the burden of establishing the plea of private defence is on the accused and the burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record
It therefore follows that simply because the accused has received injuries in the same occurrence it cannot be taken for granted that the deceased or the injured person was the aggressor and consequently he had to defend himself by inflicting injury on the deceased or the injured person
All the decisions of this Court which have been referred to and discussed above show that when the court has believed the prosecution witnesses as convincing and trustworthy the court overruled the contention of the accused that as the prosecution had failed to explain the injuries sustained by the accused in the same occurrence the prosecution case should be disbelieved and the accused should be acquitted
Thus it is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence the prosecution has to explain the injuries failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence
The learned Additional Sessions Judge has not believed the case of Hare Krishna Singh that he had sustained a bullet injury in the same occurrence and he has given reasons therefor
The High Court has however come to the finding that Hare Krishna Singh was admitted in the hospital in an injured condition immediately after the occurrence
We do not propose to reassess evidence on the question as to whether Hare Krishna Singh had sustained any injury or not
We may assume that he had sustained a bullet injury in the same occurrence
But even then in the facts and circumstances of the case the prosecution in our opinion is not obliged to account for the injury and that the failure of the prosecution to give a reasonable explanation of the injury would not go against or throw any doubt on the prosecution case
The injury that was sustained by Hare Krishna Singh was on the back
The PWs 1 and 2 the two sisters of the deceased Jitendra Choudhary denied the suggestion put to them on behalf of Hare Krishna Singh that their brother Jitendra Choudhary had been shoot 14 ing from his rifle
PW 3 who is an independent witness and was present on the scene of occurrence also denied the suggestion of the defence that there was firing on Hare Krishna Singh
PW 8 Lallan Rai also denied such suggestion of the defence
Hare Krishna Singh made a statement under section 313 Cr
It is not his case that in self defence he had fired at the deceased Jitendra Choudhary
He denied that he had any fire arms with him or that he had fired at Jitendra Choudhary
He also denied that none of the accused had any weapon with him
All the eye witnesses have stated that the appellant Hare Krishna Singh had fired on Jitendra Choudhary as a result of which he died
The prosecution witnesses have been believed by the learned Additional Sessions Judge and the High Court
In the circumstances we do not think that the materials on record including the statement of Hare Krishna Singh under section 313 Cr PC probabilise any case of self defence or that the deceased had inflicted on him the injury by firing at him from his rifle
It may be that two empties were found by the side of the dead body of the deceased but the High Court has rightly observed that the presence of the empties does not necessarily mean that the deceased had fired
The High Court points out that three live cartridges were also recovered from the pocket of the deceased at the time of inquest and observes that keeping of empty cartridges by the side of the body of the deceased cannot be ruled out
We do not find any infirmity in the view expressed by the High Court
It is not at all amenable to reason that the deceased had started from his house along with his two sisters with a view to fighting with the accused
In the circumstances we are of the view that the appellant Hare Krishna Singh has been rightly convicted and sentenced as above
Now we may deal with the case of Paras Singh of Dhobaha one of the appellants in Criminal Appeal No 690 of 1982
He was found with the accused persons including Hare Krishna Singh
It is not disputed that he is the brother in law of Hare Krishna Singh as he has been described in the FIR
It is the categorical evidence of PWs 1 2 3 and 8 that Paras Singh of Dhobaha had fired at the deceased Jitendra Choudhary
He has been identified by PW 1 in the TI Parade
In the circumstances we do not find any reason to interfere with the order of conviction and sentence passed by the courts below
So far as Paras Singh of Birampur the nephew of Jagdish Singh and the sole appellant in Criminal Appeal No 616 of 1982 is concerned his case stands on a different footing
Indeed Mr Rajender 15 Singh the learned Counsel appearing on behalf of the appellant has challenged the very presence of the appellant Paras Singh of Birampur at the time of occurrence
In the FIR his name has not been mentioned it has only been stated Jagdish Singh s nephew who is in military job of Birampur
Jagdish Singh may have more than one nephew
The IO PW 9 in his evidence has stated that before the arrest of Paras Singh of Birampur he did not know his name and he cannot say how many nephews Jagdish Singh has
The only distinctive particular for identification as given in the FIR is that the nephew is in military service
The prosecution has not adduced any evidence to show that the appellant is in military service and that no other nephew of Jagdish Singh is in such service
Thus the prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singh s nephew as given in the FIR
The most significant fact is that PW 3 failed to identify the appellant in the TI Parade
PW 8 did not attend the TI Parade
His case is that he was not called to attend the TI Parade
On the other hand it is the defence case that PW 8 was called but he did not attend the TI Parade
Whatever might have been the reason the fact remains that no attempt was made by the prosecution to have Paras Singh of Birampur identified by PW 8
In such circumstances the High Court was not justified and committed an error of law in relying upon the statement of PWs 3 and 8 made before the police mentioning the name of Paras Singh of Birampur
It is true that PWs 3 and 8 identified Paras Singh of Birampur in court but such identification is useless particularly in the face of the fact that PW 3 had failed to identify him in the TI Parade
In the circumstances the prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime
Indeed the prosecution has failed to prove that Paras Singh of Birampur was present at the time of occurrence
His conviction and sentence cannot therefore be sustained
Now we may consider the cases of the remaining two accused namely Sheo Narain Sharma the remaining appellant in Criminal Appeal No 690 of 1982 and Ram Kumar Upadhaya the sole appellant in Criminal Appeal No 615 of 1982
These two appellants have been convicted as a consequence of their sharing the common intention to murder the deceased Jitendra Choudhary
Both of them have been named in the FIR
It is submitted by the learned Counsel appearing on behalf of these two appellants that no specific overt act has been attributed to either of them
It may be that they were found in the company of Hare Krishna Singh and Paras Singh of Dhobaha but the 16 learned Counsel submits that fact will not be sufficient to impute common intention to them
So far as the appellant Ram Kumar Upadhaya is concerned there is evidence that he went with Hare Krishna Singh but there is no evidence that he had also left the place of occurrence with him
It is the evidence of all the eye witnesses namely PWs 1 2 3 and 8 that Hare Krishna Singh had fired a shot at the deceased Jitendra Choudhary hitting him in the face and he rolled and fell down from the Rickshaw in front of the gate
Thereafter Paras Singh of Dhobaha also fired at the deceased
After specifically mentioning the names of Hare Krishna Singh and Paras Singh of Dhobaha as persons who had fired at the deceased PW 3 stated that thereafter twothree firings took place and all the accused went to the shop of Sita Ram in front of the gate on the road from where they also fired upon Jitendra Choudhary
PW 8 in his evidence has also made a general statement that all the accused started firing upon Jitendra Choudhary
It is not readily understandable why the witnesses did not specifically mention the names of Sheo Narain Sharma and Ram Kumar Upadhaya if they had also fired at the deceased
Except mentioning that these two appellants were present no overt act was attributed to either of them
The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of the common intention of these two appellants also
Common intention under section 34 IPC is not by itself an offence
But it creates a joint and constructive liability for the crime committed in furtherance of such common intention
As no overt act whatsoever has been attributed to the appellants Ram Kumar Upadhaya and Sheo Narain Sharma it is difficult to hold in the facts and circumstances of the case that they had shared the common intention with Hare Krishna Singh and Paras Singh of Dhobaha
When these two appellants were very much known to the eye witnesses non mention of their names in the evidence as to their participation in firing upon the deceased throws a great doubt as to their sharing of the common intention
The convictions and sentences of these two appellants also cannot therefore be sustained
For the reasons aforesaid the convictions and sentences of Hare Krishna Singh and Paras Singh of Dhobaha are affirmed
Criminal Appeal No 690 of 1982 in so far as it relates to Hare Krishna Singh and Paras Singh of Dhobaha is dismissed
17 The conviction and sentence of Sheo Narain Sharma are set aside A and he is acquitted of all the charges
Criminal Appeal No 690 of 1982 in so far as it relates to Sheo Narain Sharma is allowed
Criminal Appeal No 615 of 1982 is allowed
The conviction and sentence of Ram Kumar Upadhaya are set aside and he is acquitted of all the charges
Criminal Appeal No 616 of 1982 is allowed
The conviction and sentence of Paras Singh of Birampur are set aside and he is acquitted of all the charges


Summary:
 In 1961 the Andhra Pradesh Revenue Subordinate Services Rules were brought into force the cadre under the rules being Deputy Tehsildars
Till then the rules in force in the erstwhile State of Madras were applicable to Andhra Pradesh
Rule 3 of the 1961 Rules provides for appointment of Deputy Tehsildars by direct recruitment or by transfer from members of the Andhra Pradesh Ministerial Service employed in the Revenue Department
It also provides that the substantive vacancies in the category of Deputy Tehsildars shall be filled or reserved to be filled by direct recruitment and recruitment by transfer in the proportion of 11 A writ petition was filed before the Andhra Pradesh High Court by some direct recruit Deputy Tehsildars disputing the seniority over them assigned to a group of promotees
The Single Judge dismissed the same holding that the petitioners had no casuse of action within the frame of the rules
This was upheld by the Division Bench deriving support from Rule 33a of the Andhra Pradesh State and Subordinate Services Rules 1962
Against this a Special Leave Petition was filed before this Court
Meanwhile the State Government amended Rule 4e of the Andhra Pradesh Revenue Subordinate Service Rules to the effect that the inter se seniority between direct recruits to the category of Deputy Tehsildars and promotees to the category of Deputy Tehsildars shall be 1119 determined from the date of confirmation in the substantive vancancies in that category in the proportion of 11 as provided in sub rule b of Rule 3
The validity of the amendment was questioned by a number of promotees the appellants herein before the State Administrative Tribunal with particular emphasis on its retrospective application
The Tribunal examined the matter at length and upheld the validity of the enactment
It also directed the State Government to proceed to determine the seniority accordingly
The said directions of the Tribunal are assailed in the appeals by Special Leave and the Writ Petition filed in this Court
Dismissing the appeals and the writ petitions this Court  HELD 11 The State is entitled to prescribe the manner of computing inter se seniority and in the absence of such prescription length of service is the basis
Rule 33 of the Andhra Pradesh State and Subordinate Services Rules 1962 contained prescription regarding seniority and has different provisions to meet varying situations
Sub rule a thereof which provides that seniority of a person is to be determined by the date of his first appointment to such service has obviously been misinterpreted on account of the presence of the words unless he has been reduced to a lower rank as a punishment
It is appropriate to interpret that rule to mean that the date of first appointment is intended to refer to continuous appointment only and the words unless he has been reduced to a lower rank by way of punishment are really redundant
This interpretation will have prospective application as otherwise limitless litigation would crop up
1124F G 1125C 12 Rule 4e before amendment in 1980 provided that the seniority of Deputy Tehsildars would be determined with reference to the date of allotment maintained and ranking assigned by the Andhra Pradesh Public Service Commission in the merit list of the particular selection
That was confined to inter se seniority of direct recruits and did not cover inter se seniority between recruits of the two sources
In 1980 Rule 4e was amended and the State Government prescribed the manner of providing inter se seniority among the recruits of the two categories
The amended rule provided the date of confirmation in the substantive vacancy as the basis
Rule 3b thereof fixed the reservation of direct recruits with reference to substantive vancancies at 50 and Rule 4e made provision with reference to seniority in the substantive vancancies with reference to the date of confirmation
The amendment is within the competency of the State Government and is not open to challenge
This is a rule made under the proviso to Article 309 of the 1120 Constitution and the rule can be given retrospective operation
But the State Government while amending the rule should have taken into consideration the practical problems which would arise as a consequence of retrospectivity
To allow the amendment to have retrospective operation is bound to create problems
Hence Rule 4e as amended on 9th October 1980 shall not have retrospective effect and would operate prospectively
1125D G 1126A E 2
Though Rule 3b fixes the ratio as 11 in respect of substantive vacancies the recruitment has not been regular and systematic
Rules have binding effect and they bind the State and the citizens alike once they are in force
In order that law may regulate conduct the State has to feel bound by its own laws and by willingly abiding by the law exhibit an ideal situation for the citizens to emulate
The rule shall henceforth be followed scrupulously by effecting recruitment at regular intervals according to the scheme of the rule1126E G The State Government has been directed to determine the vancancies available to be filled by direct recruitment within four months and to fill up the same within four months thereafter and to draw a seniority list on the basis of rule 4e on or before 311288