Gupta, J. - (1.) This appeal by special leave arises out of a writ petition made by the respondents before us in the Andhra Pradesh High Court questioning the inclusion in the list of Deputy Tahsildars eligible for promotion to the post of Tahsildar of the names of 63 persons, impleaded as respondents Nos. 4 to 66 in the writ petition. These 63 persons, were working as Upper Division Clerks in the erstwhile State of Hydrabad when, on November 1, 1956, the State of Andhra Pradesh was formed. The state Government in consultation with the Government in consultation with the Government of India issued an order on April 7, 1960 stating that the first stage promotion of the employees of the erstwhile Government of Hyderabad, that is, promotion to posts one stage above those held by them prior to November 1, 1956, would be governed by the Hyderabad Cadre and Recruitment Rules for promotion which were applicable to them before that date, but subsequent promotions after the first stage of promotion would be governed by the relevant rules in force in the newly formed State. By virtue of this order the aforesaid 63 employees were promoted to the post of Deputy Tahsildar which was the first stage promotion for them. Later, this order dated April 7, 1960 was made a statutory rule, namely, Rule 42 (h) (i) of the Andhra Pradesh State and Subordinate Service Rules which came into force on March 7, 1962. The Andhra Pradesh Civil Services (Executive Branch) Special Rule Revenue Department, hereinafter referred to as the Special Rules, were made on July 17, 1962 but made effective retrospectively from November 1, 1956. These Rules cover two categories of service; we are concerned here with category 2 - Tahsildars. Rule 4 (a) of the Rules says inter alia that the qualifications of a candidate for appointment to the post of Tahsildar shall be as specified in the annexure to the rules. The annexure provides that a Tahsildar recruited by transfer from the category of Deputy Tahsildars must be a permanent Deputy Tahsildar or an approved probationer in the category of Deputy Tahsildars and should have exercised the powers of a Magistrate of the third class and also of the second class for a period of six months in each capacity. Only those candidates who have passed a criminal judicial test can be invested with magisterial powers under the orders in force. Under R. 4 (a) the State Government has to prepare in consultation with the Public Service Commission a list of persons eligible for appointment as Tahsildars, and no Deputy Tahsildar is eligible for appointment as Tahsildar unless his name is included in such list.
(2.) The two respondents before us were directly recruited to the post of Deputy Tahsildar in the year 1962 and completed their period of probation in 1965. Both of them were declared as approved probationers in 1965 and were invested with the powers of Magistrate of the third class and then of the second class. They become eligible for appointment as Tahsildars on November 14, 1966 and June 18, 1969 respectively.
(3.) The respondents and the said 63 Deputy Tahsildars all belong to the Telangana area of the State. The 63 erstwhile employees of the Government of Hyderabad did not have the opportunities to acquire the qualifications prescribed by Rule 4 (a) of the special Rules on their promotions as Deputy Tahsildars. The Government felt that they should not be left out of consideration for appointment as Tahsildars and asked the Public Service Commission to consider the names of such Deputy Tahsildars for inclusion in the lists of eligible candidates assuring the Public Service Commission that the Government would relax the requirement as to qualification in favour of such Deputy Tahsildars provided they were otherwise found suitable by the Commission. The public Service Commission accordingly included the names of these 63 employees in batches in the lists prepared for the years 1965, 1966, 1968 and 1969. By an order dated June 30, 1971 the Governor of Andhra Pradesh relaxed the provisions of R. 4 (a) of the Special Rules relating to the qualifications required of Deputy Tahsildars for being appointed as Tahsildars in favour of these 63 employees and requested the Board of Revenue to make appointments to the post of Tahsildar in Telengana area according to the order in which the names had been indicated in the panels for the aforesaid years against the vacancies. The order traces the background of facts and states the reasons for relaxation of Rule 4 (a) of the Special Rules in the case of these employees. The material part of the order is as follows: "The Government have had under consideration for sometime past the preparation of panels of Tahsildars of the Telangana Region. According to R. 4 (a), read with the Annexure thereto of the Andhra Pradesh Civil Service (Executive Branch) Special Rules a candidate for appointment to the category of Tahsildars by transfer should, in addition to the other qualifications, be a permanent Deputy Tahsildar or an approved probationer in the category of Deputy Tahsildars of the Andhra Pradesh Revenue Subordinate Service by the 1st July of the year to which the list relates and should have exercised III class and IIclass Magisterial powers respectively for a period of six months each. According to the orders in force, only those candidates who have passed the criminal judicial tests can be invested with Magisterial powers. Allotted officers from Telangana for whom promotion to the category of Deputy Tahsildars constitutes the first stage of promotion after 1-11-1956 (viz. Upper Division Clerks) are governed by the Hyderabad Cadre and Recruitment Rules for appointment as Deputy Tahsildars. There is no probation prescribed in the Hyderabad Cadre and Recruitment Rules for II Grade Clerks (Upper Division Clerks) on their promotions to the post of Deputy Tahsildars. Therefore, The question of their becoming approved probationers in the category of Deputy Tahsildars does not arise. Further, the Hyderabad Cadre and Recruitment Rules do not lay down that the II Grade Clerks (Upper Division Clerks) should pass the Criminal Judicial Test as a condition precedent for promotion to the category of Deputy Tahsildars and therefore, those who did not pass the said tests could have had no opportunity of exercising magisterial powers while working as Deputy Tahsildars. In the circumstances it was felt that it would be unfair to exclude such persons from consideration for promotion to the category of Tahsildars on the ground that they were not approved probationers and/or had not exercised Magisterial powers. The Public Service Commission was therefore, requested to consider the names also of the Deputy Tahsildars of the Telangana Region of the above category for inclusion in the panels for the respective years, regardless of whether or not they possessed the above qualifications, with an assurance that the Government would be prepared to relax the rules relating to above requirements in favour of the candidates who would be otherwise found suitable by the Commission.";