Andhra HC (Pre-Telangana)
V. Bulleswara Rao And Ors. vs Government Of A.P. And Anr. on 2 January, 1998
Equivalent citations: 1998(2)ALD98, 1998(2)ALT202
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER
P. Venkatarama Reddi, ACJ
1. The four petitioners herein who initially held the posts in Andhra Pradesh Judicial Ministerial Service and having requisite qualifications were promoted as Judicial Second Class Magistrates (for short ' JSCMs') on temporary and ad hoc basis without any right to future re-appointment and seniority, during the years 1979 and 1980. Within a year or two thereafter, the petitioners were further promoted as District Munsifs again on temporary and ad hoc basis. To be more specific, such promotions were given on 11-01-1980 in the case of Petitioners 1 and 2, on 8-9-1982 in the case of 3rd petitioner and on 30-9-1982 in the case of 4th petitioner. Since then, Petitioners 2 and 4 worked continuously as District Munsifs till they retired from service during the pendency of the writ petition and Petitioners 1 and 3 have been continuing as District Munsifs till today. The present writ petition is filed seeking a declaration that the action of the respondents in treating the petitioners as temporary District Munsifs is arbitrary and illegal and for a consequential direction to regularise their services with retrospective effect i.e., from the date of temporary appointment as District Munsif.
2. It is the contention of the petitioners that their appointment must be deemed to be on regular or substantive basis and in accordance with rules notwithstanding the labte 'temporary'. It is the case of the petitioners and it is not seriously disputed by the respondents that they were promoted against dear vacancies and continued to meet the needs and exigencies of judicial administration. The petitioners also submit that the special ad hoc rule introduced in the year 1985 by G.O.Ms.No.406, Home (Courts) Department, dated 19-7-1985 which came into force with retrospective effect from 12-10-1981 couldnot have the effect of depriving the petitioners' right to regularisation. It may be stated that by virtue of the said ad hoc rule, the source of promotion as District Munsifs from the category of JSCMs as contemplated under the proviso to Rule 4(2) was omitted- The petitioners contend that there is no bar to regularise their services despite the ad hoc rule. The petitioners then submit that by virtue of their long and continuous officiation as District Munsifs with commendable record of service, they should be treated as regular appointees and their services cannot be dispensed with at this stage to make way to directly recruited candidates. According to the petitioners, the action of the respondents in not treating them as regular District Munsifs is violative of constitutional guarantees under Articles 14, 16 and 21. The petitioners also complain of infraction of Article 14 by alleging discrimination in the matter of regularisation of similarly situated officers and denial of the same benefit to the petitioners.
3. The stand of the second respondent as seen from the counter and additional counter filed by the Registrar of High Court is that the petitioners never acquired the status of regular promotees, that their appointment as temporary JSCMs and the later promotion as District Munsifs was traceable to Rule 11 of the A.P. Judicial Service Special Rules which provides for temporary promotions and appointments, that the rules maintain a distinction between regular appointments dealt with by Rules 4(1) and (2) read with Rule 5 and temporary appointments dealt with in Rule 11(3), that the petitioners were not put on probation for the obvious reason that they were merely temporary appointees and that in any case, they cannot claim the right to promotion on regular basis after the amendment of Rule 4(2) with effect from 12-10-1981 taking away the channel of promotion earlier available to the JSCMs. The reason for amending Rule 4(2) byG.O.Ms.No.406, dated 19-7-1985 has been explained to be the abolition of the posts of JSCMs with effect from 12-10-1981. It is stated that right from 1962, there was no regular recruitment of JSCMs as it was contemplated to abolish that cadre gradually. It appears that the draft amendment to the rule was sent to the Government on 8-6-1983. It is also stressed in the counter that the accumulation of additional vacancies between the date on which the estimate was sent to the APPSC and the date of finalisation of select list has led to the temporary District Munsifs continuing since several years. It is contended that the petitioners having failed to get selected by APPSC, cannot maintain a writ petition for regularisation of their services. As regards regularisation of services of temporary District Munsifs appointed in similar manner as that of the petitioners and the relaxation of rules in their cases, it is stated that such regularisation was confined to the number of posts available for promotion (recruitment by transfer) "in that particular selection" and none were regularised beyond the available quota. It is then stated as follows :
"........ Had the posts of Judicial Second Class Magistrates not been abolished and the method of recruitment to the posts of District Munsifs by promotion from the posts of Judicial Second Class Magistrates continued, the petitioners' cases also would have come up for consideration and the services of some of them would have been regulansed."
4. When the matter came up before Bikshapathy, J. the learned Judge felt that in view of the importance of the matter, the case is fit to be decided by Division Bench. The following are the points which according to the learned Judge need to be decided by the Division Bench :
(i) Whether the petitioners who are promoted as Judicial Second Class Magistrates by appointment by transfer who are presently holding the posts of temporary District Munsifs are required to pass the prescribed test for regularisation in the post of Judicial Second Class Magistrate and whether their regularisation can be withheld for want of passing the necessary test prescribed for Judicial Second Class Magistrate when the same was not held at all ?
(ii) Whether the High Court being appointing authority in respect of the post of Judicial Second Class Magistrate and in the absence of any prescribed procedure under Rule 5, it should be construed that requirement of passing the test was waived ?
(iii) Whether temporary District Munsifs either promoted from the Judicial Second Class Magistrates or directly appointed by transfer from the Ministerial Service and who are continued for more than 5 years and above should be recommended for regularisation by relaxing the rules if necessary without reference to the quota reserved for in service candidates ?
5. In the course of arguments, the points stressed by the learned Counsel for the petitioners are these :
In the absence of examination held by the High Court for years together, the appointment of petitioners can be deemed to be regular recruitment by way of transfer made under Rule 4(1) in relaxation of rules, though described as temporary appointments. In this context, it is pointed out that the examinations as contemplated by proviso to Rule 5(1) were not held by the High Court for a long time. The appointments of the petitioners were made after the High Court considered their cases and found them suitable. When once their appointments as JSCMs are deemed to be made on regular basis traceable to Rule 4, there is no impediment to promote them as District Munsifs on regular basis subject to their services being satisfactory. It is then contended, relying upon the decisions of the Supreme Court, that continuous officiation as District Munsifs for more than a decade gives rise to the right of regularisation irrespective of irregularity in the initial appointment inasmuch as the petitioners satisfy the basic qualifications and their service record was good.
6. Mr. V. V.S. Rao the learned senior Counsel appearing for the High Court met the above arguments by contending that the petitioners' appointment as District Munsifs was purely on temporary basis made under Rule 11 and they did not satisfy the basic eligibility criterion for appointment as JSCMs under Rule 4(1) as they were appointed - may be in exigencies of services, without holding the examination contemplated by Rule 5. They cannot, therefore, claim to be members of service nor can they claim right for further promotion as District Munsifs as if they had the status of regular JSCMs or full members of service. The learned Counsel then submitted that the Governor has no power to relax basic selection procedure prescribed and even if rules were relaxed on earlier occasions, the same cannot be repeated in view of the clarification of the legal position by the Supreme Court in recent cases. The learned Counsel drew our attention to the observations made by the Division Bench while disposing of the Writ Petition No. 19722 of 1987 filed by temporary District Munsifs who were seniors to the petitioners and contended that due consideration was made as per the directions in the said judgment and eight temporary District Munsifs' services were regularised in relaxation of rule as eight vacancies were available for recruits by transfer. It is submitted that the said judgment seats the fate of the petitioners. It is contended that no rights accrue to the petitioners merely by reason of their long, continuous service and the decisions laying down the principle of 'continuous offidation' have no application here.
7. Before we proceed to discuss the contentious issues, we would like to set out the relevant rules in Special Rules for A.P. State Judicial Service, hereinafter referred to as 'Rules'.
8. Rule 4(1) lays down that appointment to the category of Judicial Second Class Magistrate shall be by direct recruitment. However, the proviso says that eight out of twenty vacancies shall be filled up by the High Court by means of recruitment by transfer from full members or approved probationers in certain categories such as Assistant Public Prosecutors, Sheristadars of Sub-Courts, Nazirs and Head Clerks of District Courts etc.
9. Rule 4(2) lays down that the appointment to the category of District Munsifs shall be made by direct recruitment. The proviso facilitates recruitment to two out of twenty vacancies by means of transfer from full members or approved probationers in certain categories such as Section Officers, Court Officers of the High Court, Shenstadars and Head Clerks of District Courts and Sub-Courts, Assistant Public Prosecutors, Superintendents in Law Departments etc.
10. The second proviso to Rule 4(2) provides that not more than seven out of every twenty such vacancies shall be by promotion from the category of Judicial Second Class Magistrates. The said proviso ceased to be in operation with the introduction of ad hoc rule by G.O. Ms. No.406, Home (Courts-C), dated 19-7-1985. According to the ad hoc rule - "Notwithstanding anything contained in the A.P. State Judicial Service Rules, on the commencement of this rule the appointment to the category of District Munsifs shall be only by the methods of direct recruitment and appointment by transfer". That means the appointment by the third method i.e., by promotion was taken away by this ad hoc rule which, by virtue of the deeming provision, came into force on the 12th October, 1981.
11. Rule 5 deals with preparation of list of approved candidates. Rule 5(1) which is relevant for our purpose is extracted below :
"The Andhra Pradesh Public Service Commission shall from time to time, after holding the examinations specified in the Schedule to those rules, for the candidates for appointment by direct recruitment to the post of JSCMs and for appointment by direct recruitment and by transfer to the post of District Munsifs prepare lists, of persons considered suitable for appointment thereto :
Provided that the list of persons considered suitable for appointment to the posts of JSCM by transfer as specified in sub-rules (1) of Rule 4 shall be prepared by the High Court after holding the examinations specified in the said schedule;
Provided further that the list of persons considered suitable for appointment to the posts of District Munsifs by promotion as specified in the second proviso to sub-rule (2) of Rule 4 shall also be prepared by the High Court."
12. Rule 11 deals with temporary promotions and appointments Rule 11(3) is relevant for our purpose.
"Rule 11(3)(i) Where it is necessary in the public interest owing to an emergency which has arisen to fall immediately a vacancy in the category of JSCM or District Munsifs and there would be undue delay in making such appointments in accordance with these rules-
(a) the High Court may, make a temporary appointment to the category of JSCMs of a person who is a full member or an approved probationer in any category specified in the proviso to Clause(a)of sub-rule (1) of Rule 4 or promote temporarily to the category of District Munsifs who is a JSCM.
(b) the Governor may in consultation with the High Court make a temporary appointment to the category of District Munsifs of a person, who is' a full member or an approved probationer in any category specified in the first proviso to sub-rule (2) of Rule 4 :
Provided that no person shall be appointed or promoted under this clause unless he possesses the qualifications prescribed in Rule 12.
(ii) A person appointed or promoted under Clause (i) shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under these rules and the person appointed or promoted shall not be regarded as a probationer in the post or be entitled by reason only of such appointment or promotion to any preferential daim to future appointments or promotions thereto.
13. It is also relevant to notice the definitions of 'appointing authority' and ' appointed to the service'. A person is said to be 'appointed to the service' when in accordance with these rules, he discharges for the first time the duties of a post borne on the cadre of the service or commences the probation prescribed for members thereof."
'Appointing authority' means :
(a) in the case of appointment to the post of Judicial Magistrate of the Second Class, the High Court,
(b) in the case of the appointment to the post of District Munsif by direct recruitment or by transfer, the Governor; and
(c) in the case of promotion of--
(i) a Judicial Magistrate of the Second Class as a District Munsif, and
(ii) a District Munsif as a Subordinate Judge, the High Court.
14. 'Approved candidate' means a candidate who is included in any list or lists prepared by the Andhra Pradesh Public Service Commission or the High Court in accordance with the provisions of Rule S.
15. In order to facilitate regularisation of temporarily promoted District Munsifs who were earlier appointed on temporary and ad hoc basis as JSCMs. orders were issued by the Government from time to time at the instance of the High Court. Such G.Os. were issued in 1974, 1978, 1981, 1983 and 1992. Rules 4 and 5 were relaxed. The latest G.O. in this regard is G.O.Ms.No.31, Home (Courts-C) Department, dated 20-1-1992. This G.O. is issued on the basis of the recommendations made by the High Court pursuant to the judgment of the High Court in W.P.No.19722 of 1987. Rule 4(2) read with the ad hoc Rule cited above. Rule 5 and Explanation (ii) to Rule 11 of the Special Rules were relaxed in favour of eight temporary District Munsifs so as to enable them to be appointed on regular basis. G.O.Ms.No.590 was issued on 1-12-1992 regularising the services of eight candidates as District Munsifs and placing them below 1989 Batch of Direct Recruits.
16. At this juncture, it is appropriate to refer to the decision of the Division Bench of this Court in W.P.No.19722 of 1987. That writ petition was filed by 21 District Munsifs who were seniors to the petitioners herein. Those petitioners sought for a similar relief as in the present case. Jayachandra Reddy, J. speaking for the Division Bench prefaced the judgment by observing that :
"This is a case where there is unanimity with the petitioners i.e., the petitioners deserve to be continued in the posts which they are holding but yet because of some legal hurdles, this Court is not able to come to their rescue though they very much deserve our sympathy and also the sympathy of the others concerned."
17, The learned Judges negatived the contention of the temporary District Munsifs for confirmation with the following remarks:
"We have carefully examined the Rules. There is no rule which provides for confirmation merely on the ground that a particular person has served for a number of years. However, the learned Counsel appearing for the High Court also agrees that the cases of these petitioners have to be dealt with sympathetically and the only course left is to request the Government to relax the application of the rules as provided under Rule 29 of the A.P. Judicial Service Rules.
.....
.....
In our view, the case of the petitioners eminently deserves a consideration by the Government to relax the relevant rules including Explanation (ii) to Rule 11 and regularise their services.
.....
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..... Under the circumstances, we are of the view that the High Court may recommend to the Government for relaxation of the Rules so far as the petitioners are concerned as indicated above."
18. In the light of the observations made in the Judgment, the High Court on the administrative side decided to recommend the cases of 8 senior-most petitioners (in W P. 19722/87) for regularisation in relaxation of Rules as there were 8 vacancies in the promotional quota to be filled up. The Government acted on this recommendation and relaxed the relevant rules by G.O.Ms.Ko.31, dated 20-1-1992. As far as the other petitioners in W.P.No. 19722/87 are concerned, no relaxation was given as there was no recommendation by the High Court. Thus, many of the seniors to the petitioners could not get any relief and nor did they question the ultimate action taken by the High Court on the administrative side and the State Government pursuant to the observations made in the said judgment. It may be mentioned that amongst those considered by the High Court before recommending regularisation, the petitioners in the present Writ Petition were also there. A few days after W.P.No.19722 of 1987 was dismissed, the petitioners who stand more or less on the same footing as those in the earlier Writ Petition, have started a second round of litigation by raising substantially similar grounds, hi effect and in substance, the petitioners want us to direct regularisation or confirmation on the strength of long-standing service as temporary District Munsifs, overlooking their failures in the examination held by the Public Service Commission and the normal pre-conditions laid down for regular appointment in the cadre.
19. On the anxious consideration of the petitioners contentions, we are unable to hold that the petitioners are, as of right, entitled to regularisation or can be treated as full members of service. The first aspect to be clarified is that the appointments of the petitioners either as JSCMs or District Munsifs were temporary in the true sense of the term and they never attained the status of full members of service or became qualified to reckon their service in either of the cadres. It was in exigencies of service they were promoted. Incidentally, an opportunity was afforded to them to get selected as Distnct Munsifs by passing the examination held by the Public Setvice Commission. Most of the petitioners availed of more than one chance but they could not pass the examination. They were told in categoncal terms at the time of appointment/ promotion that they would not count their seniority nor could they claim any other right by virtue of their ad hoc promotion. The petitioners were fully conscious of the fact that they should vacate their offices as and when direct recruits or recruits by transfer were available for posting. It is true that the label 'temporary' or 'adhoc' is not conclusive and the court can go behind such descriptive terminology and find out the real nature and character of appointment. But, there is no scope to think that the petitioners must be deemed to have been appointed on regular basis as JSCMs and their promotion as District Munsifs was traceable to the appointment under Rule 4(2) read with Rule 11.
20. By the date of promotion as District Munsifs the first and second petitioners put in less than one year of service and Petitioners 3 and 4, less than two years. Admittedly they were not put on probation as member of service. Their appointments as JSCMs were not made after holding the examination as per the 2nd proviso to Rule 5(1). It is to be noted that under Rule 5, the High Court is vested with the power to appoint the personnel belonging to specified categories by transfer as specified in sub-rule (1) of Rule 4 by preparing a list of approved candidates after holding the examination. No such examination was held obviously because the appointments were made purely on temporary and ad hoc basis to cope up with the exigencies of administration. At that stage, it could not have been the intention of the High Court to appoint them by transfer on regular basis without holding the examination and preparing the list of approved candidates. It must be remembered that by the time the petitioners were promoted and even earlier, JSCMs were a vanishing cadre, as a decision was taken by that time to abolish the Courts of JSCMs gradually. In this situation, it is difficult to presume that the petitioners must be deemed to have been appointed by the High Court as JSCMs on regular basis, merely because an assessment of their suitability was done on a perusal of the record of service. The learned Counsel for the petitioner harps on the fact that no examination was conducted by the High Court for several years and the requirement of passing the examination as per the proviso to Rule 5(1) must be deemed to have been waived. It is difficult to countenance this argument. There was no question of holding the examination when it was not intended to fill up the posts or vacancies of JSCMs on regular basis, The fact that the examination was not held is only consistent with the avowed terms of appointment which are traceable to Rule 11(3) rather than Rule 4(1) read with Rule 5(1). When the petitioners were not and cannot be deemed to have been appointed on regular basis as JSCMs and they were not even put on probation, it is difficult to say that by working for short periods ranging between 10 months and 2 years, the appointments of the petitioners as JSCMs had attained the status of regular appointments. That being so, there is no possibility of treating the petitioners' promotion as District Munsifs on temporary and ad hoc basis as one falling under the proviso to Rule 4(2). There is another dimension to the problem. By the time the petitioners were promoted, the ad hoc rule which was framed in G.O.Ms.No.406, Home (Courts-C) dated 19-7-1985 came into force. As per the ad hoc Rules, the appointment to the category of District Munsifs shall be only by the methods of direct recruitment and appointment by transfer. In other words, the method of appointment by promotion from the category of JSCMs was given up with the result the High Court ceased to have the power of promoting JSCMs as District Munsifs. By deeming provision, this ad hoc rule came into force on 12-10-1981. The retrospective effect given to the ad hoc rule is no doubt challenged as unconstitutional but no serious attempt is made to assail the ad hoc rule on the ground of unconstitutionality
21. The third and more difficult impediment for the petitioners is the requirement prescribed by Rule 5(1) as a precondition for appointment by direct recruitment and by transfer to the posts of District Munsifs, the condition being that the candidates should have passed the examination specified in the Schedule to the Rules, held by the Public Service Commission. A series of recent decisions of the Supreme Court have firmly laid down the proposition that where the recruitment/appointment is through the agency of Public Service Commission, the persons appointed temporarily otherwise than through selection by Public Service Commission cannot claim a right for regularisation or confirmation despite their long service.
22. In the case of J & K Public Service Commission v. Narinder Mohan, the Bench consisting of K. Ramaswamy and N.P. Singh, JJ. held that the Government (the appointing authority in that case) have no power to make regular appointments under the Rules without selection by the Public Service Commission as provided for by the Rules. That was a case in which the Government relaxed the Rules of recruitment and appointed on regular basis certain medical doctors who had put in about 3 years of service. By the date the Supreme Court decided the case, the period of service rendered by them was almost seven years. Nevertheless, the Supreme Court held that such power was not vested with the Government and that the Government cannot relax the rules of recruitment providing for selection by the Public Service Commission. The Supreme Court observed :
"The rules or instructions should be in compliance with the requirements of Articles 14 and 16 of the Constitution. The procedure prescribed shall be just, fair and reasonable. Opportunity shall be given to eligible persons by inviting applications through the public notification and recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office under the State."
The Supreme Court reiterated the view taken in two earlier decisions, viz., Keshav Chandra Joshi v. Union of India, and Syed Khalid Rizvi v. Union of India, . In Keshav Chandra Joshi's case (supra), it was observed that in order to become a member of service in substantive capacity, appointment by the Government shall be preceded by selection by the Public Service Commission and undergoing training in Forestry for two years. These requirements were characterised as conditions precedent, which cannot be relaxed by the Governor.
23. Referring to A.K. Jain v. Union of India, , H.C. Puttaswamy v. Chief Justice of Karnataka, wherein directions were given to regularise the services of ad hoc employees recruited without following the due procedure for recruitment, the Supreme Court observed as follows :
"Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period the rules of recruitment should be relaxed and the appointment by regularisation be made. Thus, considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the PSC and PSC should advertise and make recruitment of the candidates in accordance with the rules."
24. A distinction was also drawn as between the appointments to more responsible jobs in higher categories and clerical/manual jobs.
25. In Hindustan Shipyard v. P. Sambasiva Rao, , decided by the Bench consisting of S.C. Agarwal and Nanavati, JJ, a direction given by this Court to regularise the services of Medical Officers who were appointed for continuous short-spells on ad hoc basis and who could not get selected in the selections held subsequently for direct recruitment was set aside by the Supreme Court. The respondent-Medical Officers in that case raised a contention similar to the one urged in the present Writ Petition that in view of their long and unblemished service, they were entitled for regularisation. That contention found favour with the High Court. The Supreme Court while allowing the appeal filed by the employer-Hindustan Shipyard Ltd., observed :
"In view of the Rules prescribed by the appellant-Corporation, a regulansation of the respondent-Medical Officers on the post of Medical Officer can be made only after they are considered and found suitable for such appointment by a duly constituted Selection Committee. As a result of the direction for regularisation given by the High Court, the requirement in the Rules regarding selection by a Selection Committee for the purpose of regular appointment on the post of Medical Officer has been dispensed with. This, in our opinion, was impermissible."
The Supreme Court then observed :
"The only direction that can be given in the matter of regularisation is that the respondent-Medical Officers should be considered by a duly constituted Selection Committee as per the Rules for the purpose of regular appointment on the post of Medical Officer and the appellant-Corporation should constitute a Selection Committee for that purpose."
26. In E. Ramakrishnan v. State of Kerala, the Supreme Court repelled the contention of the appellants therein that their services ought to be regularised in view of the long standing service of 14 years they had put in as Field-Workers in Health Department. The Supreme Court observed :
"Admittedly, the posts are to be filled up through selection by PSC recruitment norms. Necessarily, therefore, the requisition was sent for selection by PSC recruitment norms. Necessanly, therefore, the requisition was sent for selection through the PSC and candidates came to be selected. Under those circumstances, be candidates, who were found eligible and selected and recommended for appointment by the PSC, were required to be appointed. The Court rightly had exercised the power in declining to regularise the services of the petitioners."
The Supreme Court further observed :
".... the Government cannot take any decision contrary to the Constitution (Article 320) to regularise the services of the candidates dehors the recruitment rules and the statutory process for selection through the PSC."
27. In the present case, as already noticed, the petitioners had ample opportunity to get themselves selected by passing the examination held by the PSC- The petitioners could not pass the written examination on more than one occasion. Hence, in the light of the principle firmly laid down in the catena of decisions referred to above, it is not possible to accept the petitioners' claim that they must be deemed to have attained the status of regular District Munsifs merely because they have been continuously working.
28. Now, we will consider the argument whether continuous officiation or performance of duties as District Munsifs for long periods would transform the petitioner' appointments as regular or substantive appointments and the petitioners can found their rights for regutarisation merely on the basis of length of service. Reliance is placed mainly on the decision of the Supreme Court in N.S.K. Nayar v. Union of India, and the observations in Narender Chadha v. Union of India, . In N.S. Nqyar's case (supra), it was observed :
"The object of having Rule 27(b) of the Rules is to provide a source of appointment to meet an administrative exigency of short tenure. It could never be the intention of the framers of the rule to permit the appointments under the said Rule to go on for 10 to 15 years. The appointments for such a long period cannot be considered to be purely temporary/officiating or to hold charge. Taking work out of the petitioners in the STS post for 10/15 years and denying them the right of regularisation and the consequent benefits in the said grade, is wholly arbitrary and is violative of Article 16 of the Constitution of India."
29. In Narender Chadha's case (supra) the Supreme Court observed :
"It is true that the petitioners were not promoted by following the actual procedure prescribed under Rule 8(1)(a)(ii) but the fact remains that they have been working in posts included in Grade IV from the date on which they were appointed to those posts. The appointments are made in the name of the President by the competent authority. They have been continuously holding these posts. They are being paid all along the salary and allowances payable to incumbents of such posts. They have not been asked to go back to the posts from which they were promoted at any time since the dates of their appointment. The orders of promotion issued in some cases show that they are promoted in the direct line of their promotion. It is expressly admitted that the petitioners have been allowed to hold posts included in Grade IV of the aforesaid services, though on an ad hoc basis. It is, therefore, idleto contend that the petitioners are not holding the posts in Grade IV of the two services in question. It is significant that neither the Government has issued orders of reversion to their former posts nor has anybody so far questioned the right of the petitioners to continue in the posts which they are now holding. It would be unjust to hold at this distance of time that on the facts and in the circumstances of this case the petitioners are not holding the posts in Grade IV. The above contention is, therefore, without substance. But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reverted from that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the Service at all, particularly where the Government is endowed with the power to relax the Rules to avoid unjust results."
30. The observations extracted above, though seemingly in favour of the petitioners, do not in our view help the petitioners. The context in which those observations were made, makes all the difference for the applicability of the ratio therein to the case on hand.
31. In N.S.K, Ncryar's case (supra), the petitioners were members of Telegraph Engineering Service Class II Their next channel of promotion was to J.T.S. (Junior Time Scale Post in Group-A). Rule 27 (b), however, provides that posts in STS - which is a grade higher than JTS - may be filled as a temporary measure in an officiating capacity to hold charge by promoting members of T.E.S. (Telegraph Engineering Service) Class II, who were on approved list for promotion to J.T.S. The Supreme Court observed that it was difficult to fill all the posts in STS from amongst the officers in JTS and as such there was an administrative compulsion to fill the STS posts by promoting the members of TES, Class II. Hence, the Government resorted to appointments under Rule 27(b). The question was whether the petitioners who were holding the posts of Class II Engineers can count their seniority in STS posts and if so from what date. The Supreme Court stressed on the fact that a Class II Officer who is on the approved list for promotion is competent and eligible to work in JTS and STS. The Supreme Court, therefore, felt that the denial of the right of regularisation and seniority in STS cadre despite the long service they had put in was wholly arbitrary and violative of Article 16 of the Constitution. Ultimately, the Supreme Court held that the promotee officers who worked in STS for a continuous period of five years shall be deemed to be regular members of STS, Group A and entitled to count their seniority from the date of completion of five years of service.
32. Rule 27(b) has no parallel in the Rules with which we are concerned. The Class II Engineers were in the approved list for promotion as JTS though they did not work in JTS. It is noted at Paragraph 5 of the judgment that the nature of duties of Class II Officers and JTS Officers was the same. It was in those circumstances the hopping promotion which the Class II Engineers got to STS was treated as regular promotion after a lapse of five years which was fixed on rough and ready basis and seniority was assigned on that footing. In the present case, the petitioners' appointment by transfer as JSCMs could not have become regular for obvious reasons elaborated supra and they could not be regarded as members of the service by the date of their temporary promotions as District Munsifs.
33. Coming to Narender Chadha 's case (supra), it was observed that "on the facts and in the circumstances of this case", it would be unjust to hold, "that the petitioners are not holding the posts in Grade IV." Having given this finding, the crucial question was formulated thus :
"The only question agitated before us relates to the seniority as between the petitioners and the direct recruits and such a question can arise only when there is no dispute regarding the entry of the officers concerned into the same grade."
34. Thus, the basic issue was about seniority. The Supreme Court further observed :
"In the instant case, there is no impediment even under the Rules to treat these petitioners and others who are similarly situated as persons duly appointed to the posts in Grade IV because of the enabling provision contained in Rule 16 thereof. Rule 16 enables the Government to relax the rules in order to ensure satisfactory working or remove inequitable results."
35. Apart from the special facts and circumstances of that case, there is no rule similar to Rule 5 which lays down the precondition of passing the examination held by the Public Service Commission for the purpose of preparation of approved list. The only requirement in the relevant rules referred to by the Supreme Court was the preparation of list of Officers who put in service of four years on regular basis on the basis of merit and seniority in consultation with the Commission, As already noted, the petitioners appeared for the examination, but failed more than once. They cannot now turn round and say that irrespective of passing the examination and going through the selection by A.P.P.S.C. they should be recognised as regularly appointed District Munsifs by reason of their long service. Moreover, on the facts of this case, implied relaxation of Rules cannot be inferred. For all these reasons, we do not think that the petitioners can seek aid from the observations in Narendra Chadha's case (supra) in order to claim status of regular members of service.
36. The other cases cited by the learned Counsel for the petitioner which deal with the seniority between temporary promotecs and direct recruits do not furnish good analogy to the instant case in which the problem is quite different.
37. The above discussion leads us to the inescapable conclusion that the petitioners have no legal right to claim the status of regular members of service in the cadre of District Munsifs merely by virtue of their long and continuous service. That was also the view taken by the Division Bench in Writ Petition No.19722 of 1987.
38. There was a debate on the question whether the Governor can exercise the power of relaxation of the Rules under Rule 29 of the A.P. Judicial Service Special Rules. The learned Counsel appearing for the High Court Mr. V. V.S. Rao, relying upon certain decisions of the Supreme Court viz., J & K Public Service Commission's case (supra) Keshav Chanda Joshi's case (supra) argued that the Rules prescribing the process and qualification for recruitment cannot be relaxed and only the conditions of service can be relaxed. However, the other view point which we must take note of is that the rule of relaxation considered in those cases is not similar to Rule 29. The learned Counsel for the petitioner placed reliance in Government of A.P. v. D. Janardhcwa Rao, and R. R. Verma v. Union of India, AIR 1980 SC 146, to counter the contentions of the learned Counsel for the respondents in this regard. However, it is not necessary for us to go into this controversy. At this stage we are not inclined to grant any direction to consider the question of relaxation of rules for the purpose of safeguarding the interests of the petitioners. We are told that the petitioners who are in service now are not likely to get reversions before they retire. However, should any unforeseen situation arise making it difficult for the High Court to continue the petitioners in the cadre of District Munsifs Junior Civil Judges, it is open to the High Court to consider the question of recommending to the Government for relaxation of Rules in order to mete out justice to the petitioners.
39. It is true that pursuant to the observations made by this Court in W.P.No.19722 of 1987, the High Court recommended relaxation of rules in favour of eight senior most officers. The High Court did not consider it proper at that time to recommend the names of the petitioners for relaxation as there were no sufficient vacancies falling in the pool of promotees. The petitioners have not questioned the action of the High Court in recommending relaxation to eight petitioners and the Government taking the decision accordingly. The petitioners waited till the disposal of earlier writ petition and then started a fresh round of litigation raising the same issues. In these circumstances, we do not think it is appropriate and proper to give any positive direction as regards relaxation of rules.
40. We, therefore, dismiss the writ petition subject to the observations made in the judgment.