G. VENKAT RAM REDDY AND OTHERS Vs. GOVERNMENT OF ANDHRA PRADESH, AND OTHERS
LAWS(APH)-1972-10-19
HIGH COURT OF ANDHRA PRADESH
Decided on October 26,1972

G VENKAT RAM REDDY Appellant
VERSUS
GOVERNMENT OF ANDHRA PRADESH Respondents

JUDGEMENT

- (1.) Immediately before 1-11-1956. petitioners 1 and 3 were holding the posts of Senior Market Superintendents and petitioners 2. 4 and 5 were holding the posts of Junior Market Superintendents in the Marketing Department of the erstwhile Government of Hyderabad. On the formation of Andhra Pradesh the Department of Marketing of the erstwhile Government of Hyderabad became part of the Agriculture Department of the Government of Andhra Pradesh. On 1-2-1962. the department of Marketing was separated from the Department of Agriculture and a new Department was formed. Meanwhile petitioners 2, 4 and 5 were promoted as Senior Market Superintendents on 26-3-1960. 29-9-1961 and 10-6-1961 respectively. The only channel of promotion for Senior Market Superintendents is as Key Superintendents and Marketing Assistants. Special Rules for recruitment to these posts were not made till 20-1-1970 though the department was formed on 1-2-1962. The Special Rules were however given retrospective effect from 1-2-1962. In 1962 and 1964 several persons including respondents 3 to 19 were appointed temporarily as Marketing Assistants on an Ad hoc basis by the Director of Marketing, pending finalisation of Special Rules for recruitment. According to the allegation of the petitioners the Director of Marketing acted out of corrupt motives. The petitioners allege that when they represented to the Director that their claims for promotion to the posts of Marketing Assistants should be considered they were told that they could not be considered at that juncture as no rules were vet framed. The appointments appear to have created quite a scandal as is evident from the statement of the Minister for Agriculture on the floor of the Andihra Pradesh Legislative Assembly in which the Minister frankly admitted that the appointments were irregularly and improperly made in utter disregard of the claims of departmental candidates and contrary to the very Ad Hoc Rules proposed by the Director himself. Even according to the Ad Hoc Rules only one-third of the total number of posts of Marketing Assistants were to be filled by direct recruitment; the rest were to be filled by promotion of senior Superintendents. The Special Rules made on 20-1-1970. with effect from 1-2-1962. prescribe certain qualifications for direct recruitment as Marketing Assistants. Admittedly Respondents 3 to 16 do not possess the prescribed educational qualifications. Respondents 17, 18 and 19 do not satisfy the requirement regarding age Rule 2 (c) of the Special Rules also provides that out of every cycle of 9 posts of Marketing Assistants, three should be filled by direct recruitment five by promotion of Senior Market Superintendents and one by promotion of office Superintendents. The appointment of respondents 3 to 19 was quite contrary to the Special Rules which came to be made later but with retrospective effect. The question of regularisation of their services posed a problem to the Government. The Government thought that the respondents having been continuously in service for some years, their case for regularisation should be considered with 'sympathy and cornpassion'. The petitioners complain that the 'sympathy and compassion' has all been one way and they too have some rights and are entitled to a little justice. The Director of Marketing did them injustice and why should the injustice be perpetuated they ask The Government requested the Andhra Pradesh Piublic Service Commission to accord its 'concurrence' in regard to the relaxation of the age and qualification rule in the case of the respondents and to the regularisation of the services of the respondents. Having regard to the manner in which the appointments were initially made, the Public Service Commission informed the Government that it was ready to grant its 'concurrence' only if the candidates were to be subjected to an oral test by the Commission The Government repeated its request for unconditional 'concurrence' but the Public Service Commission continued to be very firm on the necessity for at least an oral test before regularising the services of the respondents. Thereupon the Government decided to take away the posts of Marketing Assistants from the purview of the public Service Ooimmission and issued G. O. Ms. No. 114 dated 29-1-1972 accordingly. By the same G. O. the Government also relaxed Rules 2 (c). 5 and 7 of the Special Rules so as to enable the regularisation of the temporary Marketing Assistants with effect from the dates of their initial appointment. The petitioners question the legality of G. O. Ms. No. 114 dated 29-1-1972 in this application for the issue of a writ. Sri Jeevan Reddy, learned counsel for the petitioners made it clear that the petitioners were not interested in questioning the regularisation of the respondents as such; they were anxious that their own rights of promotion should not be prejudiced by the regulation of the services of the respondents as proposed in the G. O. It was because the impugned G. O. jeopardised their rights that they were compelled to question its legality. Their complaint was that by relaxing Rule 2 (c) and by circumventing the cycle of appointments the chances of promotion of petitioners 2, 4 and 5 had receded to the background and petitioners 1 and 3 who had since been promoted, now faced reversion. It was pointed out that if the cycle prescribed by Rule 2 (c) was followed the petitioners would have no grievance and the services of the respondents also could be regularised as and when their turn came up. It was not as if there would be any unfairness to the respondents since even at the time of their initial appointment on a temporary and Ad Hoc basis they were aware that the proposed Ad Hoc rules themselves provided for only one third of the vacancies being filled up by direct recruitment. Perhaps that would have been a very reasonable thing to do. But that was not done. We are now concerned not with the reasonableness of the present G. O. but with its legality.
(2.) The first submission of Sri Jeevan Reddy was that the posts of Marketing Assistants could not be taken away from the purview of the Public Service Commission except by a regulation made by the Governor under the proviso to Article 320 (3) of the Constitution. G. O. Ms. No. 114 dated 29-1-1972 was but an order made in exercise of the executive power of the State Government under Article 166 of the Constitution and it was, therefore, invalid. Under Article 320 (3) of the Constitution the Public Service Commission shall be consulted "on all matters relating to methods of recruitment to Civil Services and for Civil posts" and "on the principles to be followed in making appointments to Civil Services and posts and in making promotions and transfers from one service to another and on the suitability of the candidates for such appointments, promotions or transfers." The proviso to Article 320 (3). however, enables the Governor to make regulations specifying the matters in which either generally or in any particular class of cases or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted. In other words, in the absence of a regulation made by the Governor exempting certain matters from the purview of the Public Service Commission the Commission is bound to be consulted. Article 320 (5) further provides that regulations made under the proviso to Article 320 (3) shall be laid, for not less than fourteen days, before each House of the Legislature of the State as soon as possible after they are made. In the present case accordingly to the existing Andhra Pradesh Public Service Commission Regulations made by the Governor (Regulation 15 (c) it shall not be necessary for the Commission to be consulted 'as respects any of the matters mentioned in sub-clauses (a) and (b) of Clause (3) of Article 320 of the Constitution in the case of the posts specified in Annexure 1 to these Regulations and other posts in respect of which the State Government have directed or may. with the concurrence of the Commission direct that appointments may be made without reference to the Commission.' Annexure I, Part-B. Entry 3 exempts from the purview of the Public Service Commission all non-gazetted posts except those mentioned in that entry. Item (z) (1) of the items excepted from the exemption clause "is the following posts in the Marketing Department: (1) Marketing Assistants. (2) Statistical Assistants (3) Price Reporters Grade II." It is thus clear that the posts of Marketing Assistants are not exempt from the purview of the Public Service Commission by the Andhra Pradesh Public Service Commission Regulations made by the Governor. The learned Government Pleader urged that G. O. Ms. No. 114 dated 29-1-1962 should itself be construed as a regulation made by the Governor under the proviso to Article 320 (3) of the Constitution. In the first place, it does not purport to be a regulation made by the Governor. On the other hand, it is expressed to be made "by order and in the name of the Governor" as if it was an order made by the Government of the State in exercise of its executive power under Article 166 of the Constitution. A regulation made by the Governor under the proviso to Article 320 (3) of the Constitution like the rules made by the Governor under Article 309 of the Constitution has statutory force and is "quasi-legislative" in character if one may use such an expression. It is required to be laid before the legislature as soon as it is made (in the present case it may be mentioned here it was not so laid as,, admitted by the learned Government Pleader) and it shall be subject to the modifications which the Legislature may make. The character of a regulation made under the proviso to Article 320 (3) of the Constitution is. therefore, completely different from the character of an order made in exercise of the executive powers of the State under Article 166 of the Constitution. The impugned G. O. did not purport to be a regulation made under the proviso to Art. 320 (3) of the Constitution. It purported to be an order (made in the exercise of the executive powers of the State I find it difficult to endow the executive order of the Government with the quasi-legislative character contemplated by the proviso to Art. 320 (3) of the Constitution merely because the source of power to make a regulation is found in the proviso to Art. 320 (3) of the Constitution; especially so since the procedure prescribed by Article 320 (5) of the Constitution was not followed. Referring to the power conferred on the Governor by the proviso to Article 320 (3), Durga Das Basu in his commentary on the Constitution of India (5th Edition). Volume 5 page 350, says. "But the power can be exercised only by making 'regulations' in conformity with the above conditions and not by executive orders in relation to particular cases". I am. therefore, of the view that G. O. Ms. No. 114 dated 29-1-1972 in so far as it purports to exclude the posts of Marketing Assistants from the purview of the Public Service Commission is illegal and void as it is not a regulation made by the Governor in exercise of his power under the proviso to Article 320 (3) of the Constitution. Sri Jeevan Reddy raised a further contention that the services of the respondents could not in any case be regularised with retrospective effect to the prejudice of the petitioners without giving the petitioners an opportunity to represent their case. He also contended that the power to relax the rules could not be exercised with retrospective effect and that in this case the power had been exercised arbitrarily since the Government failed to keep in mind the rights of persons in service and entitled to be promoted under the rules In the view that I have taken on the first question it is unnecessary to go into these questions.
(3.) On behalf of the respondents Sri M. N. Rao submitted that the Writ Petition was not maintainable as the petitioners themselves had been wrongly promoted superseding the claims of six of their seniors. The persons aggrieved, if any, have not chosen to question the promotions of the petitioners and I do not think it is open to the respondents to question the earlier promotions of the petitioners to the posts which they now hold. Sri M. N. Rao also urged that at the time when the respondents were appointed as Marketing Assistants in 1962 and 1964 the petitioners did not possess the qualification of five year's service which came to be prescribed by the rules made in 1970. It is true that in 1962 and 1964 the petitioners did not possess the qualification of five year's service but it must be seen that the respondents too did not possess the qualifications prescribed by the rules either then or at any later time. The petitioners stand on no worse footing than the respondents. I am of the view that the Writ Petition cannot be held to be not maintainable on that ground. We are now concerned with the question of regularisation of the services of the respondents contrary to the prescribed rules and with effect from the date of their initial appointment. If the services of the respondents are not regularised in the manner mentioned in the G. O. the petitioners will be entitled to have their services regularised.;


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