VENKATARAMIAH, J. - (1.) THIS appeal by special leave is filed against the judgment dated 23-4-1982 of the Andhra Pradesh Administrative Tribunal in Representation Petition No. 508 of 1982 issuing a direction to the State Government to refrain from making any direct recruitment against temporary vacancies in the cadre of Assistant Engineers under the Andhra Pradesh Panchayat Raj Engineering Service (Special) Rules (hereinafter referred to as 'the Special Rules') as amended by G.O. Ms. No. 227 dated 28-4-1980 and issuing certain other ancillary directions. The facts of the case are as follows.
(2.) RECRUITMENT to the Andhra Pradesh State and Subordinate Services was governed by the Andhra Pradesh State and Subordinate Services Rules, 1962 (hereinafter referred to as 'the General Rules'). Rule 6 of the General Rules which dealt with the method of recruitment provided that where the normal method of recruitment to any service, class or category was neither solely by direct recruitment nor solely by transfer but was both by direct recruitment and by transfer, the proportion or order in which the special rules concerned may require vacancies to be filled by persons recruited direct or by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre. In those Rules the expression 'special rules' meant the rules in Part III of the General Rules applicable to each service or class of service and included ad hoc rules applicable to temporary posts. On 23-3-1.963 the Governor of Andhra Pradesh promulgated in exercise of his powers conferred by proviso to Art. 309 of the Constitution of India the Special Rules providing for the constitution of and the method of recruitment to the Andhra Pradesh Panchayati Raj Engineering Service and the Special Rules were given retrospective effect from 1/11/1960. Under the Special Rules the Andhra Pradesh Panchayati Raj Engineering Service was to consist of four categories of officers, namely, Chief Engineer, Superintending Engineer, Executive Engineer and Assistant Engineer. The post of Assistant Engineer was required to be filled up as follows : JUDGEMENT_740_SUPP1_1988Html1.htm (c) Out of every 8 vacancies among Assistant engineers, 3 shall be filled up or reserved to be filled up by direct recruits on the results of the competitive examinations and the remaining 5 by transferees. Note : Rules 6, 8(a)(i) and 29(b) of the General Rules for the Andhra Pradesh State and Subordinate Services shall not apply to the appointment of Assistant Engineers by direct. recruitment in the Andhra. Pradesh Panchayati Raj Engineering Service. ... ... ... ... ... ... ... ... ... ... ... ... ... By Notification bearing G.O. Ms. No. 125 dated 28-5-1973 Explanation (c) in the Special Rules relating to the method of recruitment of Assistant Engineers was substituted by a new explanation which read as follows : "(c) Out of every 8 vacancies among Assistant Engineers, the 2nd, 5th and 8th vacancies shall be filled in by direct recruits on the results of the competitive examination and the rest of the vacancies by transfer." Thus by the year 1978 the posts of Assistant Engineers (now designated as Deputy Executive Engineers) were to be filled up either by direct recruitment or by transfer from among Junior Engineers or Supervisors or Draftsman 1st Grade of Andhra Pradesh Panchayati Raj Subordinate Service and if no qualified or suitable candidates were available for recruitment as stated above by transfer from any other service or on tenure basis. Out of every eight vacancies in posts of Assistant Engineers the 2nd, 5th and 8th vacancy had to be filled in by direct recruits on the result of the competitive examination and the rest of the vacancies by transfer. The Special Rules further provided that Rr. 6, 8(a)(i) and 29(b) of the General Rules would not apply to the appointment of Assistant Engineers by direct recruitment in the Andhra Pradesh Panchayati Raj Engineering Service and thereby it became permissible to the State Government to take into consideration the number of temporary vacancies also in addition to the substantive vacancies in any year for purposes of recruitment. Three out of eight vacancies (which included both substantive and temporary vacancies) could be filled up by direct recruitment. In other words 37-1/2 per cent of the total number of vacancies (both substantive and temporary vacancies) in the cadre of Assistant Engineers could be filled by direct recruitment. The Chief Engineer of the Andhra Pradesh Panchayati Raj Engineering Service reported to the State Government in his letter dated 25-11-1979 that the total number of posts of Assistant Engineers (Permanent and Temporary) excluding the cyclone posts available were 203 by the end of May, 1979. Out of the said 203 posts the number of posts available for direct recruitment was 75 (203 X 3/8) and that out of them 38 vacancies of Assistant Engineers had either been filled in by direct recruitment or notified to the Public Service Commission for selection and that the balance number of vacancies available for direct recruitment were 37 for the years 1978 and 1979. Out of these 37 remaining vacancies, as 23 posts had been filled by Assistant Engineers selected in direct recruitment, an estimate of 15 vacancies of Assistant Engineers was furnished to the Public Service Commission on 3-6-1978. For the recruitment years 1978 and 1979 the estimate of vacancies were due with the Public Service Commission in the first week of May, 1978 and of May, 1979. In acaccordance with the above rule then in force the State Government took the decision in February, 1980 to notify 18 vacancies for the recruitment year 1978 and 18 vacancies for the recruitment year 1979. The Chief Engineer was informed of the decision of the State Government to recruit the abovesaid 18 plus 18, i.e., 36 vacancies in addition to the 15 vacancies already notified to the Public Service Commission and was asked to send the zonewise break up of vacancies keeping in view the rules of special representation for Scheduled Castes, Scheduled Tribes, Backward Classes etc. After the receipt of the proposals from the Chief Engineer on 6-8-1981 the estimate of vacancies for the years 1978 and 1979 was also sent to the Public Service Commission for recruitment of Assistant Engineers. In the meanwhile the Public Service Commission had published an advertisement in or about September, 1980 inviting applications for recruitment of Assistant Engineers directly specifying 8-1-1981 as the last date for submitting the applications. In that notification the Public Service Commission had intimated that 15 vacancies were available for recruitment as per the first communication received by it from the State Government. When the process of recruitment was in progress some of the officers, who were working as Incharge Assistant Engineers or Junior Engineers in the Panchayati Raj Department Engineering Service made representations to the State Government raising objection to the proposed direct recruitment of 51 Assistant Engineers on the basis of the total number of substantive and temporary vacancies which had arisen in the years 1978 and 1979 relying upon an amendment which had been made to the Special Rules by G.O.Ms. No. 227 dated 28-4-1980 by which Explanation (c) and the proviso thereunder in the Special Rules had been substituted by the following explanation and proviso : "37-1/2% of the substantive vacancies arising in the category of Assistant Engineers shall be filled by direct recruitment on the results of the competitive examination and the remaining 62-1/2% by promotion or transfer as indicated under explanation (d) below ... .."
(3.) THEIR contention was that the 51 vacancies which had been notified to the Public Service Commission for direct recruitment could not be filled up any longer by direct recruitment as according to them after the amendment of the Rules on 28-4-1980 only 37-1/2 per cent of the substantive vacancies could be filled up by direct recruitment. They contended that the 51 vacancies which had been notified to the Public Service Commission had been arrived at by taking into consideration temporary vacancies also and that was not permissible after the amendment. They further urged that under the Special Rules, as amended on 28-4-1980, only 8 vacancies could be filled up by direct recruitment. When the above representation made by them did not elicit any positive reply from the State Government, they instituted Representation Petition No. 508 of 1982 on the file of the Andhra Pradesh Administrative Tribunal for injunction restraining the State Government and the Public Service Commission from recruiting 51 persons as direct recruits to the cadre of Assistant Engineers. The petition was opposed by the State Government. It pleaded that the amendment made on 28-4-1980 to the Special Rules was only prospective in effect and had no effect on the vacancies which had arisen prior to the date on which the amendment was made and, therefore, it was open to the State Government to fill by direct recruitment 37-1/2 per cent of the total number of vacancies (substantive as well as temporary) in the cadre of Assistant Engineers which had arisen before the amendment. The Tribunal rejected the contention of the State Government and held that it was not permissible for the State Government to make recruitment to the 51 vacancies after the Special Rules were amended on 28-4-1980 irrespective of the fact that the vacancies in question had arisen prior to the date of the amendment. Accordingly the Tribunal directed the State Government and the Public Service Commission to refrain from making any direct recruitment against the temporary vacancies in the Andhra Pradesh Panchayati Raj Engineering Service contrary to the Special Rules as they stood amended from 18-4-1980. Aggrieved by the decision of the Tribunal some of the candidates, who had been selected by the Public Service Commission as Assistant Engineers, filed a special leave petition in this Court under Art. 136 of the Constitution of India requesting this Court to grant special leave to appeal against the judgment of the Tribunal. On 4-6-1982 this Court granted special leave to appeal against the judgment of the Tribunal and also stayed the operation of the judgment of the Tribunal. Thereafter the State Government issued a notification bearing G.O.Ms. No. 525 dated 30-10-1982 appointing the appellants, respondent No. 4 and 48 others as Assistant Engineers (now called Deputy Executive Engineers) on temporary basis under R. 10(a)(i)(1) of the General Rules. 44 of the 51 candidates so appointed joined service as Deputy Executive Engineers. All those who joined the service accordingly have continued to be in the service of the State of Andhra Pradesh till now. It is not necessary for purposes of this judgment to decide all the contentions which had been raised by the petitioners who had filed the representation petition before the Andhra Pradesh Administrative Tribunal since the Tribunal has allowed the petition only on one ground, namely, that the recruitment in question was governed by the Special Rules as amended on 28-4-1980 and not by the rules which were in force when the vacancies in question arose.;