A.K.PATNAIK, J. - (1.) THESE are appeals against the judgment and order dated 05.04.2002 of the Division Bench of the Andhra Pradesh High Court in a batch of Writ Petitions Nos. 14689 of 2001, 25322 of 2001, 24420 of 1997 and Writ Petition No.22926 of 2001 (for short 'the impugned judgment').
(2.) THE relevant facts very briefly are that on 28.07.1983 the Government of India sent a Circular to all the State Governments to depute the Forest Range Officers who have passed the Forest Ranger Course with honours for admission to two year course at the State Forest College for the post of Assistant Conservator of Forest. In response to the Circular, the Government of Andhra Pradesh sent the Forest Range Officers, who had secured honours in Forest Ranger Course, on deputation to the State Forest College for training as Assistant Conservators of Forests during the period 08.04.1986 to 23.06.1994. On 13.11.1994, the Andhra Pradesh Administrative Tribunal delivered a judgment in O.A. No.3258 of 1994 holding that the deputation of Forest Range Officers, namely, Sri B. Narayan Reddy and Sri T. P. Thimma Reddy, for training as Assistant Conservators of Forests was contrary to the Andhra Pradesh Forest Service Rules, 1965 (for short 'the Forest Service Rules'). On 29.05.1995, the Government of Andhra Pradesh issued G.O.Ms. No. 35 adding a proviso to Rule 2 of the Forest Service Rules that Forest Range Officers who secured first and second ranks in their batches for Honours in Ranger's Training Course shall be eligible for appointment as Assistant Conservators and this G.O.Ms. No. 35 was published in the Gazette of the Andhra Pradesh on 01.06.1995. On 03.07.1995, the Andhra Pradesh Government issued G.O.Ms. No.51 amending this proviso to Rule 2 of the Forest Service Rules so as to provide that Forest Range Officers who secured Honours in their batches in the Rangers Training Course shall be eligible for appointment as Assistant Conservators and this G.O.Ms. No.51 was published in the Gazette of Andhra Pradesh on 12.09.1996. THE appellants who were working as Assistant Conservators of Forests challenged the amendments to Rule 2 of the Forest Service Rules by G.O.Ms. No.35 and G.O.Ms. No.51 before the Andhra Pradesh Administrative Tribunal and thereafter before the High Court. By the impugned judgment, the Division Bench of the High Court has dismissed the Writ Petitions. Mr. L. Nageshwar Rao Rao, learned counsel appearing for the appellants in Civil Appeal No.8116 of 2003, submitted that a bare perusal of the G.O.Ms. 35 dated 29.05.1995 and G.O.Ms. No.51 dated 03.07.1995 would show that the Government Orders directing that the amendments shall be deemed to have come into force from 08.04.1986 was not part of the Notification which was published in the Gazette. He submitted that the amendments by G.O.Ms. Nos. 35 and 51 are amendments to Rule 2 made under the proviso to Article 309 of the Constitution and although the proviso to Article 309 of the Constitution does not prescribe any specific mode of publication of the Rules made thereunder, the amendments are required to be published in the same manner in which the Rules made under an Act are published. He referred to Section 21 of the Andhra Pradesh General Clauses Act which provides that even where an Act or Rule provides for publication merely but does not say expressly that it shall be published in the Official Gazette, it would be deemed to have been duly made if it is published in the Official Gazette. He cited a decision of this Court in I.T.C. Bhadrachalam Paperboards and Anr. v. Mandal Revenue Officer, A. P. and Ors. [(1996) 6 SCC 634] in support of this submission. He vehemently submitted that although the amendments made to Rule 2 by G.O.Ms. Nos. 35 and 51 were published by a notification in the Official Gazette, the portion of the Government Order in G.O.Ms. NOs. 35 and 51 directing that the amendments would have retrospective effect from 08.04.1986 was not published in the notifications in the Official Gazette. He argued that the legal consequence is that the amendments to Rule 2 made by G.O.Ms. NOs. 35 and 51 would have only prospective effect. In other words, the amendments by G.O.Ms. Nos. 35 and 51 would have effect from 19.05.1995 and 03.07.1995 respectively and will not have retrospective effect from 08.04.1986. Mr. P.S. Patwalia, learned counsel appearing for Respondent Nos. 3, 4, 7, 8, 12, 13 and 14 (the private respondents), in reply, submitted that Article 309 of the Constitution does not prescribe any specific mode of publication for the rules made under the Article and all that is required is that there should be some reasonable mode of publication so that the affected parties are made aware of the factum of promulgation of the rules. He further submitted that in Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors. [(2002) 6 SCC 127], this Court has held that where the parties were actually aware of the fact that the rules have been published, the argument that the rules were not actually published is a hyper-technical one.
(3.) WE are unable to accept the submission of Mr. Nageshwar Rao that portion of the Government Orders in G.O.Ms. Nos. 35 and 51 directing that the amendments to Rule 2 therein would have retrospective effect from 08.04.1986 were required to be published in the Official Gazette. A plain reading of G.O.Ms. Nos. 35 and 51, copy of which has been annexed, would show that the amendments to Rule 2 of the Forest Service Rules made therein are in exercise of powers conferred by the proviso to Article 309 of the Constitution. Article 309 of the Constitution is extracted hereinbelow: "309. Recruitment and conditions of service of persons serving the Union or a State.--Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act." Article 309, quoted above, would show that under the main provision of the Article, Acts of appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of Union or of any State. The proviso to Article 309 of the Constitution, however, states that until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, the President or the Governor, as the case may be, or any such person as they may direct, make rules regulating the recruitment and conditions of service of persons appointed, to such services and posts in connection with the affairs of the Union or of any State respectively. The proviso to Article 309 further says that "any rules so made shall have effect subject to the provisions of any such Act" made under Article 309 of the Constitution. The words "any rules so made shall have effect" signify that the rules will become operative subject only to the provisions of the Constitution and the provisions of any Act made by the appropriate Legislature under Article 309 of the Constitution. Hence, Section 21 of the Andhra Pradesh General Clauses Act, which provides that where in any Act, or any rule passed under any Act, it is directed that any order, notification or other matter shall be notified or published, such notification or publication shall, unless the Act otherwise provides, be deemed to be duly made if it is published in the Official Gazette, has no application whatsoever to a rule made under the proviso to Article 309 of the Constitution. In I.T.C. Bhadrachalam Paperboards and Anr. v. Mandal Revenue Officer, A. P. and Ors. (supra) cited by Mr. Rao, one of the questions which arose for decision was whether the publication of the exemption notification in the Andhra Pradesh Gazette as required by Section 11(1) of the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 was mandatory or merely directory and this Court held after considering its earlier decisions that where the parent statute prescribes the mode of publication or promulgation that mode has to be followed and that such a requirement is imperative and cannot be dispensed with. The Court, in particular, held that where a power is conferred to exempt a class of persons from the levy created by a statute upon another authority by the legislature, that authority has to, and can, exercise that power only in strict compliance with the requirements of the provision conferring that power and it is in the interest of the general public that such notifications are not only given wide publicity but there should also be no dispute with respect to the date of their making or with respect to the language and contents thereof. In the present case, the facts are entirely different. As we have seen, the amendments to Rule 2 of the Forest Service Rules by G.O.Ms. Nos. 35 and 51 with retrospective effect are sought to be made in exercise of powers conferred under the proviso to Article 309 of the Constitution and not in exercise of any power conferred by any Act made by the State Legislature and the Constitution or any appropriate Act made under Article 309 of the Constitution does not prescribe any mode of publication of rules made under the proviso to Article 309.;