T. Narasimhulu & Ors vs State Of A.P. & Ors

the appellants in Civil Appeal No.8116 of 2003, 4

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. 5

Bhadrachalam Paperboards & Anr. v. Mandal Revenue

Officer, A. P. & 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.

4. 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 6

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 & Ors.

v. Shakuntala Shukla & 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.

5. 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: 7

"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, 8

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. 9

6. In I.T.C. Bhadrachalam Paperboards & Anr. v. Mandal

Revenue Officer, A. P. & 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 10

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.

7. This is not to say that rules made under the proviso to

Article 309 of the Constitution are not required to be

published at all. A rule made under the proviso to Article

309 of the Constitution has the same effect as an Act of

appropriate Legislature regulating 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. Hence, even if Article 309 of the 11

Constitution does not say that the rules made under the

proviso thereto are required to be published, these rules

are required to be published just as any other Act passed

by the appropriate Legislature is required to be published

so that the persons affected by the rules or the Act are

aware of the rule or the Act. In Harla v. The State of

Rajasthan [AIR 1951 SC 467] this Court held:

".... Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some civilized11way so that all men may know what it is or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to 11civilized man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential."

Also in State of Maharashtra v. Mayer Hans George [AIR 1965

SC 722] this Court held:

12

"...... Where there is a statutory requirement as to the mode or form of publication and they are such that, in the circumstances, the Court holds to be mandatory, a failure to comply with those requirements might result in there being no effective order the contravention of which could be the subject of prosecution but where there is no statutory requirement we conceive the rule to be that it is necessary that it should be published in the usual form i.e. by publication within the country in such media as generally adopted to notify to all the persons concerned the making of rules .... ."

8. It will be clear from the law laid down by this Court that

where the law prescribes the mode of publication of the

law to become operative, the law must be published in

that mode only, but where the mode of publication of the

law is not prescribed by the law, such law should be

published in some usual or recognized mode to bring it to

the knowledge of all persons concerned. In the present

case, the contention of the appellants before the Tribunal

or the High Court was not that the Government Order in

G.O.Ms. Nos. 35 and 51 that the amendment to Rule 2 of

the Forest Service Rules would have retrospective effect

from 08.04.1986 was never made known by any 13

reasonable mode, but that it was not published in the

Official Gazette. This contention of the appellants, as we

have seen, has no merit.

9. Mr. Rao next submitted that Rules under the proviso to

Article 309 of the Constitution can be made by the

President or the Governor, as the case may be, with

retrospective effect, but if such Rules made with

retrospective effect affect a vested right of a Government

servant, the same will be ultra vires Article 14 of the

Constitution. He submitted that in the seniority list

published on 15.12.1988 the appellants were shown

senior to respondents 3 to 14 (private respondents)

having been appointed to the cadre of Assistant

Conservators of Forests by direct recruitment earlier than

the private respondents, but as a consequence of the

retrospective effect of the amendments to Rule 2 of the

Forest Service Rules by G.O.Ms. Nos. 35 and 51, the

private respondents will be shown senior to the

appellants in the seniority list. He referred to the

observations of this Court in para 24 at page 638 of the 14

judgment in Chairman, Railway Board & Ors. v. C.R.

Rangadhamaiah & Ors. [(1997) 6 SCC 623] that in many

decisions of this Court the expressions `vested rights' or

`accrued rights' have been used while striking down the

impugned provisions which had been given retrospective

operation so as to have an adverse effect in the matter of

promotion, seniority, substantive appointment, etc. of the

employees. He argued that since the seniority of the

appellants had been adversely affected by amendments to

Rule 2 by G.O.Ms. NOs. 35 and 51 made with

retrospective effect from 08.04.1986, the amendments

take away the vested rights or accrued rights and are

liable to be struck down by the Court.

10. In reply, Mr. Patwalia submitted that in S. S. Bola & Ors.

v. B.D. Sardana & Ors. [(1997) 8 SCC 522] a three-Judge

Bench of this Court has taken a view that a particular

position in the seniority list within a cadre can neither be

said to be accrued or vested right of a Government

servant and that an Act of the State Legislature, which

has retrospective effect and which affects seniority of 15

Government servants, cannot held to be ultra vires the

Constitution. He submitted that the private respondents,

who were Forest Range Officers and were deputed to the

State Forest College in accordance with Government

Orders, had been treated as direct recruits of different

years to the posts of Assistant Conservators of Forests

pursuant to the G.O.Ms. Nos. 35 and 51 and that the

seniority in the cadre of the Assistant Conservators of

Forests have to be determined vis-`-vis the appellants,

who were also direct recruits in accordance with the

relevant seniority rules. He submitted that the

contention of the appellants that their vested/accrued

right to seniority has been affected by the amendments to

Rule 2 of the Forest Service Rules, is, therefore,

misconceived.

11. In Chairman, Railway Board & Ors. v. C.R.

Rangadhamaiah & Ors. (supra), cited by Mr. Nageshwar Rao,

however, whether seniority was a vested right or not was not

the issue and the issue was whether pension of a Government

servant admissible under the rules in force at the time of 16

retirement could be adversely affected by a retrospective

amendment to the rules and the Constitution Bench held that

such retrospective amendment affected the vested rights and

was violative of Articles 14 and 16 of the Constitution. Mr.

Rao, however, has relied on the following observations in paras

23 and 24 of the judgment in Chairman, Railway Board & Ors.

v. C.R. Rangadhamaiah & Ors. (supra):

"23. The said decision in Raman Lal Keshav Lal Soni1 of the Constitution Bench of this Court has been followed by various Division Benches of this Court. (See K.C. Arora v. State of Haryana2; T.R. Kapur v. State of Haryana3; P.D. Aggarwal v. State of U.P.4; K. Narayanan v. State of Karnataka5; Union of India v. Tushar Ranjan Mohanty6 and K. Ravindranath Pai v. State of Karnataka7.)

24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. ...."

1 (1983) 2 SCC 33 2 (1984) 3 SCC 281 3 (1986) Supp. SCC 584 4 (1987) 3 SCC 622 5 1994 Supp. (1) SCC 44 6 (1994) 5 SCC 450 7 1995 Supp. (2) SCC 246 17

It will be clear from the obiter in para 24 of the judgment

quoted above on which Mr. Nageshwar Rao has relied upon

that this Court has included seniority as one amongst the

vested rights or accrued rights on the basis of the decisions of

this Court noted in para 23 of the judgment quoted above. We

have perused the decisions noted in para 23 of the judgment

and we find that it is only in the case of Union of India v.

Tushar Ranjan Mohanty (supra) that a two-Judge Bench of this

Court has held that seniority of the Tushar Ranjan Mohanty

was a vested right and this vested right could not be taken

away by retrospective amendments of the rules.

12. In a three-Judge Bench judgment in S. S. Bola & Ors. v.

B.D. Sardana & Ors. (supra), cited by Mr. Patwalia, however,

we find that this Court has clearly held that seniority was not

a vested or accrued right. Three separate judgments were

delivered by K. Ramaswamy, J., S. Saghir Ahmad, J. and G. B.

Pattanaik, J. K. Ramaswamy, J. has held:

"no one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be 18

taken away only by operation of valid law." [(1997) 8 SCC at 634]

G. B. Pattanaik, J. has also held:

"Thus, to have a particular position in the seniority list within a cadre can neither be said to be an accrued or vested right of a Government servant and losing some places in the seniority list within the cadre does not amount to reduction in rank even though the future chances of promotion get delayed thereby. ...." [(1997) 8 SCC at 666].

S. Saghir Ahmad, J. has agreed with G. B. Pattanaik, J. and

has held:

"In the instant case, the judgments rendered by this Court in the earlier decisions relating to the seniority of the present incumbents were founded on the service rules then existing. These service rules have since been replaced by the impugned Act which has been enforced with retrospective effect. The various aspects of merits have been considered by my Brother Pattanaik and I cannot usefully add any further words on merits. ...." [(1997) 8 SCC at 639 at para 162].

It is, thus, clear from the judgment of a larger Bench that in

S. S. Bola & Ors. v. B. D. Sardana & Ors. (supra) that seniority

of a Government servant is not a vested right and that an Act 19

of the State Legislature or a rule made under Article 309 of the

Constitution can retrospectively affect the seniority of a

Government servant. The second contention of Mr. Rao,

therefore, also fails.

13. Mr. Rakesh Dwivedi, learned counsel appearing for the

appellants in Civil Appeal Nos.8082 and 8083 of 2003, in

addition to the contention of Mr. Nageshwar Rao, submitted

that the amendment to Rule 2 by G.O.Ms. No. 51 only

provides that Forest Range Officers, who secured honours in

their batches in the Rangers Training Course, would be

deputed for training to join two years course of the State

Forest Service College and does not provide for appointment of

such Forest Range Officers as Assistant Conservators of

Forests.

14. Rule 2 together with the proviso as amended by

G.O.Ms. No.51 is quoted hereinbelow:

"Rule 2. Appointment :-- Appointment to the several categories should be made as follows :

Category Method of Appointment 20

Category 1: Chief Conservator Promotion from Conservators

Category 2: Conservators Promotion from Dy.Conservators

Category 2: Dy. Conservators Promotion from Asst.Conservators

Category 2: Asst. Conservators Direct recruitment or recruitment by transfer from Rangers of the Andhra Pradesh Sub-ordinate Service.

Provided that Forest Range Officers who secured honours in their batches in the Rangers' Training Course shall be eligible for appointment as Assistant Conservators. They shall be deputed to join the two years course of State Forest Service Colleges run by the Government of India, treating them as direct recruits to the post of Asst. Conservators. The terms and conditions of training prescribed under clauses (a) and (b) of Rule 6 of the said Rules for a probationary Assistant Conservator of Forests appointed by direct recruitment, shall apply to the persons mentioned above. Such appointment to the post of Assistant Conservator of Forests shall be counted against direct recruitment quota."

It will be clear from the title of Rule 2 that the rule provides for

appointment and not for training. The main provision of the

rule provides for appointment to four categories of officers of

the State Forest Services, namely, Chief Conservator,

Conservators, Deputy Conservators and Assistant

Conservators. The proviso to Rule 2 as amended by G.O.Ms. 21

No. 51 further provides that Forest Range Officers who

secured Honours in their batches in the Rangers' Training

Course shall be eligible for appointment as Assistant

Conservators and after deputation to join the two years course

of State Forest Service Colleges run by the Government of

India, will be treated as direct recruits to the post of Assistant

Conservators. There is, therefore, no scope for taking a view

that the proviso to Rule 2 as amended by G.O.Ms. No. 51 is

not a rule relating to appointment of Forest Rangers as

Assistant Conservators.

15. In the result, we do not find any merit in these appeals

and we accordingly dismiss the same, but there shall be no

order as to costs.

.............................J. (Markandey Katju)

.............................J. (A. K. Patnaik)

New Delhi, May 11, 2010.