THE HON'BLE Mr. JUSTICE GHULAM MOHAMMED and THE HON'BLE Mr. JUSTICE C.V.RAMULU + W.P.Nos.26698 of 2006 AND 659 & 5213 of 2007 %Dated 09-7-2008 # Between: 1 The Director of Health, A.P., Hyderabad. 2 The Commissioner, A.P.Vaidya Vidhana Parishad, Hyderabad. 3 The Director of Medical Education, A.P. Hyderabad. 4 The Principal Secretary to Government, Health, Medical and Family Welfare Department, Secretariat, Hyderabad. ..... PETITIONERS AND 1 Dr. P. Veerabhadra Rao, Old MLA Quarters, Hyderabad. 2 Dr. P. Shayama Devi, Govt Civil Dispensary, Karwan, Hyderabad. 3 Dr. D. Sarala, Govt Civil Dispensary, Baghamberpet, Hyderabad. .....RESPONDENTS ! Counsel for the Petitioner: GP FOR SERVICES I ^ Counsel for the Respondents: SRI M. PANDURANGA RAO SRI P. NAVEEN RAO <GIST: > HEAD NOTE: ? Cases referred 1. 2003(5) SCC 23 2. 2005(7) SCC 396 3. AIR 1966 SC 1953 4. AIR 2004 SC 4010 5. 1999(7) SCC 209 6. AIR 2000 SC 2767 7. 1997(4) SCC 647 8. 2002(2) SCC 645 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINETH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Mr. JUSTICE GHULAM MOHAMMED and THE HON'BLE Mr. JUSTICE C.V.RAMULU W.P.Nos.26698 of 2006 AND 659 & 5213 of 2007 WRIT PETITION No.26698 of 2006 Between: 1 The Director of Health, A.P., Hyderabad. 2 The Commissioner, A.P.Vaidya Vidhana Parishad, Hyderabad. 3 The Director of Medical Education, A.P. Hyderabad. 4 The Principal Secretary to Government, Health, Medical and Family Welfare Department, Secretariat, Hyderabad. ..... PETITIONERS AND 1 Dr. P. Veerabhadra Rao, Old MLA Quarters, Hyderabad. 2 Dr. P. Shayama Devi, Govt Civil Dispensary, Karwan, Hyderabad. 3 Dr. D. Sarala, Govt Civil Dispensary, Baghamberpet, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ or direction more particularly one in the nature of Writ of Certiorari Calling for the records relating to and connected with order dt. 13.12.2006 in O.A.No.5655 of 2006on the file of the Hon'ble APAT, Hyderabad and to quash or set-aside the same by holding as erroneous and contrary to law. Counsel for the Petitioner: GP FOR SERVICES I Counsel for the Respondents: SRI M. PANDURANGA RAO SRI P. NAVEEN RAO The Court made the following : THE HON'BLE Mr. JUSTICE GHULAM MOHAMMED AND THE HON’BLE Mr. JUSTICE C.V.RAMULU W.P.Nos.26698 of 2006 AND 659 & 5213 of 2007 COMMON ORDER: (per C.V. RAMULU,J) In all these Writ Petitions, common questions of law and fact arise for consideration; therefore, they are being disposed of by this common Order. The Writ Petitions are directed against Orders dated 13-12-2006 made in O.A.No.5655 of 2006, dated 14-7-2006 in O.A.No.4312 of 2006 and dated 18-1-2007 in O.A.No.5742 of 2006 on the file of Andhra Pradesh Administrative Tribunal at Hyderabad, whereunder the applications filed by the respondents herein complaining as to non- extension of the benefits under G.O.Ms.No.145, General Administration (Services-D) Department, dated 15-6-2004, were allowed and the respondents therein were directed to include the name of the applicants for the panel year subsequent to the year 2003-04 for effecting promotion to the post of Deputy Civil Surgeon. The respondents, when they were promoted to the post of Deputy Civil Surgeon in the Health Department of Government of Andhra Pradesh, have either declined promotion or did not join within 15 days from the date of promotion as required under unamended Rule 11(b) of the Andhra Pradesh State and Subordinate Service Rules,1996 (for short ‘the Rules’), which reads as under: “Time to join a post on appointment otherwise than by direct recruitment: A person appointed to a post, otherwise than by direct recruitment, shall be allowed a joining time of 15 (fifteen) days from the date of receipt of the order of appointment sent to the candidate by registered post with acknowledgment due or by any other means. If a person fails to join the post, within the period of 15 (fifteen) days or evades to join the post by proceeding on leave, the offer of appointment shall be treated as automatically cancelled and the name of the candidate shall be deemed to have been omitted from the list of the approved candidates and he/she shall forfeit his/her right of appointment both for the present and in future for the post.” The grievance of the respondents before the Tribunal was that in view of amendment of Rule 11(b) of the Rules under G.O.Ms.No.145, dated 15-6-2004, they are entitled for consideration for promotion to the post of Deputy Civil Surgeon, though they failed to join duty in the post for which they were promoted earlier and the forfeiture of the promotion cannot be treated to be a permanent feature. The case of the writ petitioners before the Tribunal was that though the applicants (respondents herein) were promoted to the post of Deputy Civil Surgeon during the panel year 2003-04, they did not join in the promotion post and Rule 11(b) issued through G.O.Ms.No.145, dated 15-6-2004 is prospective and does not have retrospective effect; as such, the respondents herein are not entitled for promotion to the post of Deputy Civil Surgeon for the panel year 2005-06. The Tribunal, after considering the rival contentions and placing reliance on the Judgment of the Apex Court in NATIONAL AGRICULTURAL COOPERTIVE MARKETING FEDERATION OF INDIA LTD. v. UNION OF INDIA[1] whereunder it was held that any amendment by way of substitution in the Rules will come into effect from the date of introduction of the original Rule, allowed the O.As and directed the petitioners herein to promote the respondents herein to the post of Deputy Civil Surgeon in the panel year subsequent to the date of amendment of the rules. Aggrieved thereby, the present Writ Petitions are filed. Sri J. Sudheer, learned Special Government Pleader, representing the learned Advocate General appearing for the petitioners, strenuously contended that the issue that arises for consideration in these Writ Petitions has been covered by a Judgment of a Division Bench of this Court dated 21-9-2005 in Writ Petition No.17676 of 2005, wherein it was held that amended rule has no retrospective effect and as such, an employee/officer, who was allowed a time of 15 days to join the post from the date of receipt of the order of appointment, does not join the post within the stipulated time or evades to join the post by proceeding on leave, shall lose his right for promotion once for all, as he is not entitled for consideration for promotion in any future recruitment years, as per the unamended rules. Thus, the orders passed by the Tribunal holding that the Rule has retrospective operation are liable to be set aside. Though the said judgment was cited in the impugned Orders, but was not taken into consideration by the Tribunal. Further, the learned Special Govt.Pleader relied upon a judgment reported in GOVERNMENT OF INDIA v. INDIAN TOBACCO ASSOCIATION[2] and has drawn attention of the Court to paragraph-25, which reads as under: “25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (See Principles of Statutory Interpretation, ibid, p. 565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P.; State of Rajasthan v. Mangilal Pindwal; Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. and A.L.V.R.S.T. Veerappa Chettiar v. S. Michael. In West U.P. Sugar Mills Association case a three-Judge Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centring around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar case a three- Judge Bench of this Court emphasized the distinction between 'suppression' of a rule and 'substitution' of a rule and held that the process of substitution consists of two steps : first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place." and submitted that the amended rule has no retrospective operation nor there is any express provision or by necessary implication it can be treated as operative with retrospective effect. Therefore, the decision relied upon by the Tribunal has no relevance to the facts of the case and thus it acted in an arbitrary and illegal manner in allowing the O.As. The language used in the G.O. is very clear. Further, Government has issued clarification in Memo No.10266/B1/05-3, dated 30-8-2005, whereunder the intention of the Government was made very clear to say that G.O.Ms.No.145, dated 15-6-2004 is made prospective only, but has no retrospective effect. Therefore, the amendment in G.O.Ms.No.145, dated 15-6-2004 is not applicable to the persons to whom the promotion was offered or effected, but declined to join within 15 days from the date of receipt of the order. Therefore, the intention of the amendment was very clear. Learned Special Government Pleader has also relied upon the Judgments reported in SREE BANK LTD. V. S.D. ROY & CO.[3] and has drawn attention to paragraph 9, which reads as under: “9. Why then was sub-s. (3) enacted ? It must have been to give sub-s. (1) full retrospective operation, to make it affect vested rights. If it were not so, sub-s. (3) would have been a mere surplus age or enacted ex abundanti cautela. A statute is not to be so read unless that reading is compelled by the words used. There are no such words and I do not think that that reading is justified by the rule of presumption that a statute is not intended to have a retrospective operation. In this case particularly because of the clear intention of the Act to protect a sizeable section of the public consisting of the depositors. I feel that a reading of sub-s. (3) as a surplusage or ex abundanti cautela would be unwarranted. Furthermore, if that sub-section was enacted merely ex abundanti cautela, then why did it not also say that the provisions of S. 45-O would apply to a case where the winding up order had been made before the Act? Why was it not thought that caution was necessary to provide for such a case also? I am not saying that sub-s. (3) does not make the section apply to a case where the winding up order had been made before the amending Act. All that I am saying is that the omission of a reference to the case of a winding up under such an order shows that sub-s. (3) was not ex abundanti cautela. It must have been intended to give full retrospective effect to S 45-O including sub-s. (1) of that section.” Learned Special Government Pleader also drawn attention of the Court to the judgment in RAMJI PURSHOTTAM v. LAXMANBHAI D.KURLAWALA[4] wherein it was held as under: “12. Whether Act No. LI of 1975 insofar as it amends Section 12 of Act No. 57 of 1947 can be said to be retrospective in operation is the first question. A perusal of Section 12 shows that sub-section (1) speaks of the landlord's entitlement to the recovery of possession of premises from the tenant. Sub-section (2) speaks of the institution of suit. The fulfilment of conditions prescribed by sub-section (2) is a condition precedent to enable a landlord to institute a suit for recovery of possession. On the date of passing of the decree for recovery of possession the Court shall have to record findings by reference to Section 3(a) of the Act that the tenant has been in arrears for a period of six months prior to the institution of the suit, that a period of one month has expired from the date of the service of notice in writing demanding the rent in arrears from the tenant and that the tenant neglected to make payment of such arrears for the abovesaid period of one month. It has always open for the tenant to show that though he was alleged to be in arrears but that was not so. On the date of the institution of the suit the tenant did not have a right to claim adjustment of the amount of water charges paid by him against the amount of rent in arrears. However, he could have paid such water charges to protect himself against discontinuance of water supply, an essential service. Section 21 of Act No. LI of 1975 introduced Explanation III in Section 12 of Act No. 57 of 1957 which is declaratory in nature and creates a fiction for holding the tenant deemed to have paid the rent to the extent of payment of water charges and creating a statutory right in the tenant to make adjustment of the amount of water charges paid to the Municipal Corporation from out of the amount of rent due by him to the landlord. So long as the amount of water charges paid by the tenant has not been actually returned or reimbursed by the landlord to the tenant, the tenant would be justified in treating the amount of water charges paid by him to the Municipal Corporation as the amount of rent paid by him to the landlord. In other words, to the extent of water charges paid by tenant he cannot be deemed to be in arrears outstanding against him. 13. Strictly speaking, in the present case, the application of the amendment brought in by the statute to the pending proceedings does not have the effect of retrospectivity. The rent is alleged to have fallen in arrears for the period 1-6-1969 to 31-101970. Some payment of water charges is said to have been made referrable to the same period. Thus, both the events are referrable to a period anterior to the coming into force of Act No. LI of 1975. The law coming into force during the pendency of the proceedings is being applied on the date of judgment to the pre-existing facts for the purpose of giving benefit to the tenant in the pending proceedings. This is not retroactivity. 14. Justice G. P. Singh states in Principles of Statutory Interpretation (Ninth Edition, 2004, at page 462) - "the fact that a prospective benefit under a statutory provision is in certain cases to be measured by or depends on antecedent facts does not necessarily make the provision retrospective. The rule against retrospective construction is not always applicable to a statute merely because a part of the requisites for its action is drawn from time antecedent to its passing." Whereas, Sri M. Panduranga Rao, learned counsel appearing for the respondent in W.P.No.5213 of 2007, stated that the Rule by necessary implication has retrospective effect and the Tribunal has rightly considered so. The Orders passed by the Tribunal do not require any interference by this Court. Further, he has also relied upon a judgment of a Division Bench of this Court in Writ Petition No.26654 of 2005, dated 9-8-2006, whereunder, it was held that Rule 28 does not disentitle a member of a service from being considered for promotion in a future vacancy merely because he/she had relinquished his/her right under the Rule for promotion earlier. Further, placing reliance on the judgment reported in AJIT SINGH (II) v. STATE OF PUNJAB[5] and DELHI JAL BOARD v. MAHINDER SINGH[6] it is contended that if an employee is otherwise eligible, it is his fundamental right under Article 16(1) of the Constitution of India for consideration of his case for promotion and Rule 28 of the Rules does not prohibit consideration of promotion forever, it is further contended that no inconvenience is caused either to the employer or any injustice is caused to the other employees, in view of consideration of the cases of the respondents for promotion. Promotion is a fundamental right under Article 16(1) of the Constitution and such a right cannot be taken away permanently. Sri Naveen Rao, learned counsel appearing for respondents in Writ Petition Nos.26698 of 2006 and 659 of 2007 strenuously contended that the context of the language used in the amended rule/section has to be taken into consideration to decide whether the same has retrospective operation or not. Further, this is a beneficial legislation and the contextual relevance has to be necessarily taken into consideration. The preamble of G.O.Ms.No.145, dated 15-6-2004 is very clear in this regard. By taking the aid of the preamble to the amended rule, one has to necessarily infer that it is amended only to meet the mitigating circumstances and to confer benefit on the persons, who have lost their promotion in view of the fact that they have not availed the promotion effected or offered to them within 15 days as required under the old Rule. The new rule confers the benefit and by conferring such benefit, nobody is affected. It is only to mitigate the hardship of the employees, the old Rule was amended as a beneficial legislation and as such, it has to be necessarily construed that the amended Rule operates retrospectively. Learned counsel also drawn attention of the Court to preamble of G.O.Ms.No.145, dated 15-6-2004 and pointed out that it was issued only to mitigate the hardship caused to the Government employees and the Government decided that the cases of such of those employees who could not join in the promotion posts to be considered, in the next panel year. Accordingly, the Government has decided to amend the Rule. At this stage, during the course of arguments, a new angle of the matter has come to light. G.O.Ms.No.145, dated 15-6-2004 is an amendment by way of substitution. The amendment says “In the said rules, in rule 11 for sub-rule (b), the following shall be substituted”. Therefore, Sri Naveen Rao, learned counsel has stated that an amendment by way of substitution would come into operation with retrospective effect and it has to be treated as if the law was made as on the date of commencement of original statute/rule. In this regard, the learned counsel relied upon a judgment reported in INDIAN TOBACCO ASSOCIATION case (2 supra) and drawn attention to paragraphs 10,14,15,16,17,22,23 and 28, which read as under: “10. An exemption notification, it is trite, must be construed having regard to the object and purport which the same seeks to achieve. 14. However, the question which arises for consideration in this case is as to what would be the effect of the subsequent notification. 15. The word "substitute" ordinarily would mean "to put (one) in place of another"; or "to replace". In Black's Law Dictionary, Fifth Edition, at page 1281, the word "substitute" has been defined to mean "To put in the place of another person or thing" or "to exchange". In Collins English Dictionary, the word "substitute" has been defined to mean "to serve or cause to serve in place of another person or thing"; "to replace (an atom or group in a molecule) with (another atom or group)"; or "a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague". 16. By reason of the aforementioned amendment no substantive right has been taken away nor any penal consequence has been imposed. Only an obvious mistake was sought to be removed thereby. 17. There cannot furthermore be any doubt whatsoever that when a person is held to be eligible to obtain the benefits of an exemption notification, the same should be liberally construed. 22. Had the intention of the Government of India been only to extend the said benefit only to the exporters from any other seaport, airport or inland container depot, recourse to the proviso appended to sub-clause (iv) of clause (2) of the notification dated 7-4-1997 could have been taken. But by reason of the notification dated 27-11-1997, one 'sea port' and 'six inland container depots' have been added. The last two words in the category of seaport, namely, "Tuticorin and Vishakhapatnam" had been substituted by the words "Tuticorin, Vishakhapatnam and Kakinada. Similarly the last two words, namely, Ludhiana and Hyderabad" in the category of inland container depot had been substituted by the words "Ludhiana, Hyderabad, Nagpur, Agra, Faridabad, Jaipur, Guntur and Varanasi. It, therefore, cannot be said to be a case where some other seaports or inland container depots have been added for the purpose of extension of the benefit but the newly added seaports or inland container depots had been made a part of the original notification. The Union of India while making a subordinate legislation had advisedly used the word "substitution" in place of the word "addition". The object and purport of the subsequent notification issued by the Union of India was, thus, to grant the same benefit which had been granted to the exporters who were registered at the other seaports, airports or inland container depots as specified in the notification dated 7-4-1997 but also to those exporters, who had been exporting from such seaports or inland depots as specified in the amended notification dated 27-11-1997. 23. If the Central Government intended to extend the benefit to the members of the Respondent-Association only with prospective effect, it could have said so explicitly. Such a benefit could also have been extended by taking recourse to the proviso appended to sub- clause (iv) of clause (2) of the notification dated 7-4-1997. It may, therefore, be safely concluded that by reason of the amended notification, the Central Government only intended to rectify a mistake and, thus, the same will have retrospective effect and retroactive operation. 28. The doctrine of fairness also is now considered to be a relevant factor for construing a statute. In a case of this nature where the effect of a beneficent statute was sought to be extended keeping in view the fact that the benefit was already availed of by the agriculturalists of tobacco in Guntur, it would be highly unfair if the benefit granted to them is taken away, although the same was meant to be extended to them also. For such purposes the statute need not be given retrospective effect by express words but the intent and object of the Legislature in relation thereto can be culled out from the background facts.” Learned counsel relied upon the decision reported in UNION OF INDIA v. C. RAMA SWAMY[7] and has drawn attention of the Court to paragraphs 16 and 17 which read as under: “16. The effect of a rule being substituted by a new rule clearly is that the old rule, which stands substituted, can under no circumstances have any application at least from the date when it ceased to exist. With effect from 7th July, 1987 a new Rule 16-A having been incorporated in the Rules, it was this rule alone which was applicable when the respondent represented for alteration in the date of birth by his first representation of 4th September, 1982. Reading Rule 16-A as a whole it is clear to us that it applies to all person belonging to the All India Services who were in service and the said rule does not exclude pre 4th December, 1971 direct recruits from its application, as has been held by the Tribunal. 17. Rule 16-A is a composite rule which was intended to and does apply to all persons of the All India Service to whom the principle Rules of 1958 are applicable.” Learned counsel further relied upon the judgment of the Apex Court reported in WEST U.P. SUGAR MILLS ASSOCIATION v. STATE OF U.P.[8] wherein