Skip to content


Syed Abbas HussaIn Nagri Vs. State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal Nos. 167 of 1967, 9, 10, 11, 253, of 1968 and 24, 95, 102 and 178 of 1969
Judge
Reported inAIR1971AP1
ActsConstitution of India - Articles 162, 309, 311 and 311(2); States Reorganization Act, 1956 - Sections 115(7), 116 and 119; Civil Services-Hyderabad Cadre and Recruitment Rules, 1955; Hyderabad General Recruitment Rules, 1955 - Rules 2 and 3; ;Andhra Pradesh Public Service Commission Regulations 1963 - Regulation 15; ;Andhra Pradesh Public Service Commission Rules, 1963 - Rule 4(2); Andra Pradesh Civil Services (Classification, Control and Appeal) Rules - Rule 8(3); Andhra Pradesh State ad Subordinate Services Rules - Rule 10(5)
AppellantSyed Abbas HussaIn Nagri
RespondentState of Andhra Pradesh and anr.
Appellant AdvocateP. Babulu Reddy, ;Jaleel Ahmed, ;Aziz Ahmad, ;D.M. Deshmukh, ;K.V. Sarma, ;T. Ananta Babu, ;Upendralal Waghray, ;A. Gangadhara Rao and ;N. Chandra Mouli, Advs.
Respondent AdvocateC. Apparao, ;M.Venkateswaralu, for Adv. General ;S.V. Kondapi, ;B. Jaganndha Sastry and ;V. Venkataramanajh, Advs.
Excerpt:
service - promotion - articles 162, 309, 311 and 311(2) of constitution of india, sections 115 (5), 116 and 119 of states reorganisation act, 1956, civil services-hyderabad cadre and recruitment rules, 1955, rules 2 and 3 of hyderabad general recruitment rules, regulation 15 of andhra pradesh public service commission regulations, 1963, rule 4 (2) of andhra pradesh public service commission rules, 1963, andhra pradesh civil services (classification, control and appeal) rules and andhra pradesh state and subordinate services rules - appellants working as tahsildars in erstwhile state of hyderabad - state of andhra pradesh temporarily promoted them as deputy collectors in exercise of powers under article 162 - public service commission (psc) gave opinion that appellants unsuitable for.....vaidya, j.1. the appellant in all these writ appeals are personnel who were in the service of the state of hyderabad as it was existing prior to 1-11-1956 and were allotted t the state of andhra pradesh from 1-11-56. the appellants in w.a.no.167 of 1967. and 9,10 and 11 of 1968 were tahsildars on 1-11-56 and were promoted as deputy collectors after that date. they filed writ petitions out of which these writ appeal arise on their being reverted to the post of tahsildars. writ appeal no. 167 of 1967 arises out of writ petition no. 2067 of 1966. writ appeals 9,10 and 11 of 1968 air out of writ petitions 2082 of 1966. 60/67 and 244/67 respectively. the writ petitions were dismissed by a common judgment rendered by our a common judgment rendered by our learned brother chinnappa reddy. j. the.....
Judgment:

Vaidya, J.

1. The appellant in all these writ appeals are personnel who were in the service of the State of Hyderabad as it was existing prior to 1-11-1956 and were allotted t the State of Andhra Pradesh from 1-11-56. The Appellants in W.A.No.167 of 1967. and 9,10 and 11 of 1968 were Tahsildars on 1-11-56 and were promoted as Deputy Collectors after that date. They filed writ petitions out of which these writ appeal arise on their being reverted to the post of Tahsildars. Writ Appeal No. 167 of 1967 arises out of Writ Petition No. 2067 of 1966. Writ Appeals 9,10 and 11 of 1968 air out of Writ petitions 2082 of 1966. 60/67 and 244/67 respectively. The Writ petitions were dismissed by a common judgment rendered by our a common judgment rendered by our learned brother Chinnappa Reddy. J. The appellation Writ Appeal No. 253 of 1968 was a Nayab Tahsildar (Deputy Tahsildar) on 1-11-1956 and was later promoted as Tahsildar. he filed writ petition No. 825 f 1967 out of which the aforesaid appeal arises challenging the orders of reversion made against him. His writ petition was dismissed by our learned brother Chinnappa Reddy. J. The appellant in Writ Appeal No. 24 of 1969 was an Upper Division Clerk in the Electricity Department on 1-11-56 and was promoted to the post of Accountant (non-gazetted) on 14th May. 1956 and was later promoted as Deputy Chief Accountant on 3-3-1962. His writ Petition No. 59 of 1967 is directed against the order of reversion from the post of deputy Chief Accountant to the post of accountant. The writ petition was dismissed by our learned brother Kuppuswamy. J. the appellants in writ Appeals 95,d 102 and 178 of 1969 were Accountants and Second Grade Clerks as on 1-11-1956 in the Sales Tax Department. They were promoted as Assistant Commercial Tax Officers after that date and their writ Petitions Nos.-1788. 1784 of 1968 were directed against the orders of reversion to the post of accountants and Second Grande Clerks which were dismissed by our learned brother Kuppuswami, J.

2. These Writ Appeals came up for hearing before our learned brothers Venkatesam and A.D.V. Reddy . JJ. who referred them to a Full Bench, By the order of reference the following questions have been referred.

'(1) Does the State of Andhra Pradesh possess inherent or Constitutional Executive Power to promote Tahsildars of the erstwhile State of Hyderabad, temporarily or provisionally, as Deputy Collectors in the State of Andhra Pradesh, till integrated rules for promotion of Tahsildars of both the Telangana and Andhra Regions are made by the State of Andhra Pradesh.

(2) Does the Rule of first promotion of Tahsildars of Telangana region as Dy Collectors in the State of A.P. according to the Hyderabad Cadre and Recruitment Rules 1955 imply either that there can be no temporary or provisional promotion of such Tahildars after 1-11-56 or that a promotion expressly made temporarily or provisionally after 1-11-56 without a process of selection would amount to a permanent promotion.

(3) Should the Public Service Commission be consulted when a Tahsildar of the erstwhile State of Hyderabad is promoted either temporarily or permanently after 1-11-56 as a Deputy Collector in the State of A.P.

(4) Even if the consultation is not necessary whether the consultation of the Public Service Commission would vitiate the reversion.

(5) What is the effect of the Public Service Commission not being consulted for the continuance of personnel either under the Hyderabad Public Service Commission Rule or Andhra Pradesh Public Rules or Andhra Pradesh Public Service Commission Rules in the case of posts falling within their pur-view; or the Commission not acting as per Rule 4(2) of the Andhra Pradesh Public Service Commission Rules of 1963.;

3. As regards question No.5, it has been observed in the order of reference that there was no pleadings in the affidavits filed by the petitioners in regard to the said question. The order of reference further says:

'The papers in all these cases will be placed before the Honourable the Chief Justice for constituting a Full Bench for answering the questions a fares, themselves, in the light of the answer to the above questions and any other incidental contentions that may be raised.'

4. Before we take up consideration of the questions referred, it is necessary to make a reference to few facts. Before the enforcement of the States Reorganization Act, 1956. the State of Hyderabad conceited of three regions; Telangana. Marathwada and Karataka. By virtue of section 3(1) of the States Reorganization Act, certain territories of theorist while State of Hyderabad were added to the State of Andhra and State of Andhra so constituted was named the State of Andhra Pradesh. The territories so transferred are commonly known as Teagna region . In order to provide for smooth take-over of services existing in one State by another State. certain provisions were made in Part X of the States Regorganisation Act. By virtue of sub-sections (2) and (3) of Section 115. certain personnel of the Hyderabad State were allotted to the state of Andhra Pradesh and sub-section (5) of this section made provisions for rest-while establishment of one or more Advisory Committees by the Central Govt. for assisting it in regard to (a) integration of services in the State of Andhra Pradesh (b) ensuring a fair and equitable treatment to all persons affected and proper consideration of any representation made by such persons. It is a matter of history that the advisory Committees were constituted by the Central Government and the question of integration of services and eualisation of posts has been under consideration the State Govt. and the Central Government for the past so many years. but unfortunately as far as Tahsildrs are concerned we are told that no final common gradation lists of the integrated service have been prepared to third date. We have also been told that the provisional common gradation life of Tahsildrs prepared in the year 1964 has again been amended and is yet to be finalised. The States Rerganisation Act by sub-section (7) of Section 115 provided.

'Nothing in this Section shall be deemed to affect the appointed day the operation of the provisions of Chapter I of part XIV of the Constitution in relation to the determination of the conditions of service of persons serving inconnecting with the affairs often Union or any State;

Provided that the conditions of service applicable immediately before the appointed day the operation to the case of any persons referred to in sub-section (1) or sub-section (2) shall not be varied to this disadvantage except with the previous approval of the Central Government.'

By this sub-section the conditions of service existing in the erstwhile State of By dread were guarantied to the Telangana personal by providing that those conditions shall not be varied to their disadvantage except with the previous approval of the Central government Section 116(1) of the States Reorganization Act provided that every person who was holding or discharging the duties of any post of office in connection with the affairs of an existing State in any area which on 1-11-1956 fell within another existing State, shall quench of the provisions of the States Reorganization Act such post or office ceased to existing State in that day continue to hold the same post or office in the other existing State in which such area in included on that day and shall be deemed as from that day to have been duly appointed to such a post of office by the Government of other appropriate authority in such State. Sub-section (2) of this section provides that nothing in this section shall be deemed to prevent a competent authority after the appointed day, from passing interrelation to any such person and order affecting his continence in such post or office. Section 117 of the said Act authors the Central Government to give such direction to the State Government as may appear to it to be necessary for the purpose of giving effect to the provisions of part of X of the Act and the State Government sale comply with such directions. The public Service commission of the State of Hyderabad ceased to exist from 1-11-1956 by virtue of Sub-section (2) of Section 118 of the Act. Section 119 which finds a place in Part IX of the Act reads:-

'The provisions of Part of II any change in the territories to which any law if or immediately before the appointed day extends or applies, and territorial referenced in any such law to an existing State shall, until otherwise provided by a competent be construed as meaning the terrorist within the State immediately before the appointed day.' It is, in the light of the provisions of the States Reorganization Act referred to above, the provisions of the Constitution of India and the Rules applicable to the Services concerned to which we will refer to India course, the questions referred to us have to be answered.

5. Shri Jaleel Ahmad who advanced before us the leading argument, contended that by virtue of the provision of the proviso to sub-section (7) of Section 115 of the States Reorganization Act, the conditions of service of the Hyderabad personnel who were allotted to the State of Andhra Pradesh continued after the formation of the State of Andhra Pradesh and those conditions could not be varied to their disadvantage without the previous approval of the Central Government. He further contended that though the orders of promotion of all the appellants in the appeals say that they were temporarily promoted, their promotions should be considered to the regular as they were promoted in clear vacancies of permanent posts Hyderabad Rules applying to the various service personnel id not contain any provision of temporary promotion. The Rules provided of a temporary post and a temporary appointment and not for a temporary promotion. That being the case, the appellants should be considered to have been regularly promoted creating in them a right to the office to which they were promoted and their reversion from that post is illegal as it amounts to reduction in rank. It is also contended that the reasons given for reversion cast a stigma on them reducing their chances of future promotion and thus amount to a reduction in rank. Admittedly the orders of reversion have been issued against these appellants without conforming to the procedure laid down in the Classification. Control and Appeal Rules and Article 311 of the Constitution of India. These reversions are therefore bad and the orders are liable to be struck down. He also raised the question that the public Service Commission did not comply with R.4 (2) of the Rules before declaring that the appellants were unsuitable for the job. He further contended that the Government blindly accepted the opinion of the Public Service Commission and did not exercise its independent judgment as to the suitability or otherwise of the appellants.

6. The learned Advocate General contended that in the situation arising after the formation of State of Andhra Pradesh on 1-11-1956 it was not possible for the Government to make any promotions in accordance with the Rules then existing assuming that any such rules were existing as on that day it was not possible to determine who were the persons entitled to such promotions from the integrated personnel from Andhra and Telangana. In such circumstances the Government was obliged to take action under Article 162 of the Constitution till the equalisation of posts was effected and a common gradation list was drawn up. Later the Government with a view to regularising the promotions made by it under the powers esteem in it under Article 162 of the Constitution referred the cases of the promotes to the public Service Commission took the decision to either retain or event the personnel so promoted. In the circumstances in which the promotions were made by the Government and the fact that the orders of promotions socially say that the promotes were temporary, no right to the post was created in the appellants. No reason has been given by the government in the orders of reversion and the counter affidavits filed by the Government state that the appellants were found unsuitable or unfit. According to the learned Advocate General, the ground of reversion given in the counter affidavit should not be taken into consideration, and even if taken into consideration. it does not amount to any stigma and does not in any manner affect the future chances of promotions of the appellants. The question therefore of the application of the Classification. Control and Appeal Rules or invoking Article 311 of Constitution does not arise. He also contended that in order to consider the argument raised by the appellants in regard to R.4 (2) of the Rules of Procedure of Andhra Pradesh Public Service Commission Rules it is necessary to have the necessary pleadings for the same. The affidavits filed by the appellants, in the writ petitions do not make any such pleadings and further when the action of the Public Service Commission is being contested, the Public Service Commission not having been made a party, no argument under Rule 4(2) can be entertained not exercise its independent judgment as to the suitability or otherwise of the appellants. It took into consideration the opinion expressed by the Public Service Commission and then reached its own decision as to the reversion of the appellants.

7. Shri Upendrala Waghray, advancing the main argument for the A.C. T.Os contended that as far as the A.C.T.O. was region wise and therefore there was no question of preparing any integrated or common gradation list for the whole of Andhra Pradesh. The writ appellants and the respondents in the writ appeals all belong to single region within Telangaa and the question of considering the chances of promotion of personnel from the Andhra side, did not at all arise. The question therefore of resorting to the provisions of Article 162 of the Constitution of India for making any promotion in these case did not arise. The promotions to the post of A.C.T.O. being a Ist stage promotion, it was entirely governed by the provisions of the Hyderabad Rules and the appellants were entitled to the promotion. He further contended that the Government by its new Rules made by G.O.Ms. 170 dated 30-1-1962 made eligible Third Grade Clerks along with 2nd Grade Clerks and U.D.Cs. for purpose of promotion to the post of A.C.T.O. The learned counsel contends that the inclusion of the Third Grade Clerks among the Second Grade Clerks, has adversely affected the appellants' chances of promotion and has thus dis advantageously affected their condition of service as far as the first stage of promotion goes. Admittedly, the State Government has not obtained any prior approval of the Central Government to the Rules made in G.O.Ms. so far as it affect the condition of services of the appellants is void and has no force. He also pointed out that by virtue of the inclusion of Third Grade Clerks for consideration to the post of A.C.T.O. peculiar anomaly has arisen inasmuch as the persons who were once serving as Assistants and who were under the control of the appellants have become their superior officers and the appellants now have to serve under them or under their control.

8. Mr. Shiv Shanker the learned Third Government Pleader contended that even though there is no specific provision for temporary appointments in the Hyderabad Rules; there is a definite indication that temporary appointment could be made under those Rules and a person could be appointed temporarily even in a clear vacancy. His contention is that there is no prohibition in the Hyderabad Rules for temporary appointments and the State Government therefore was entitled to appoint temporally. He further contended that power to appoint temporarily also.

9. We have heretofore indicated the broad outline of the arguments advanced by the learned counsel for both sides in the various writ appeals and we will advert to their arguments in detail as we deal with the questions referred to us and also other questions that arise out of the writ appeals.

10. We will now proceed to consider the question referred to us.

11. The first question deals with the power of the State of Andhra Pradesh to promote the Tahsildars of the erstwhile State of Hyderabad temporarily provisionally as Deputy Collectors in the State of Andhra Pradesh till the integrate rules for the promotion of Tahsildars of both Telangana and Andhra regions are made by the State of Andhra Pradesh. On 1-11-1956 when the State of Andhra Pradesh was formed, there were two sets of Rules that were applicable to the Government servants that were working in the Teanganna region and had been allotted to the State of Andhra pradesh under the provisions of States Reorganization Act, were prior to the formation of Andhra Pradesh, being governed by the Hyderabad Rules; where-as the personnel working in the Andhra region were governed by the Rules prevailing in that region.

12. At the time the State of Andhra Pradesh was formed there was no integrated list of the personnel from both the regions fixing their inter seniority. Not only the inter se seniority of the personnel from both regions had to be fixed. but in some cases it was necessary to equate the posts held by the personnel from the two regions. As far as Tahsildars are concerned, in the State of Hyderabad, the Tahisldar's post was a gazette post; whereas in the State of Andhra, the Tahsildar's post was a non-gazetted one. That being so, the question of equation of post would also arise. Inter se seniority of the personnel from the two regions not being known, the Government at that stage could not have selected persons for promotion to posts of Deputy Collectors. Ordinarily even in cases where the test of merit-cum-seniority is adopted merit of persons who are seniors are first taken into consideration. At that time therefore it was not possible for the State Government either to promote personnel from the Telangana region in accordance with the Rules obtaining in that region in accordance with the Rules obtaining in that region. It was argued by the learned Advocate General referring to the provisions of Section 119 of the States Reorganization Act that this section did not save the Hyderabad Rules relating to Telangana personnel and they ceased to be applicable to them. He even went to the extent of contending that even the Andhra Rules ceased to be applicable as the promotions were to be made in the State of Andhra. His contention is that service rules apply to personnel and not to a particular territory and what is saved by S.119 of the States Reorganization Act is territorial extent of laws. His contention is that laws which governed a particular terrority continued to be operative in that territory by virtue of the provisions of S.119 of the Act; but law which were applicable to particular personnel though in a particular territory. did not continue to apply to the personnel of that territory. We find it very difficult to agree with this contention of the learned Advocate General. Laws prevalent in a particular territory, apply to persons who live in that territory. The Services Rules though applicable to a particular personnel are applicable to the personnel of tat particular territory where the laws are made. It therefore cannot be said that service Rules are only connected with personnel and have nothing to do with territory. The Service Rules in the State of Hyderabad applied to the Telangana personnel because those personnel were in service in a territory which formed part of the State of Hyderabad. Therefore, it cannot be said that the laws contemplated in Section 119 of the States Reorganization Act do not take in the Service Rules. Further, it has to be remembered that on 1-11-1956 the Service Rules that were applicable in the State of Hyderabad had been made by the Raj Pramukh of Hyderabad under the proviso to Article 309 of the Constitution of India. Article 313 of the Constitution provides that all laws inforce immediately before the commencement of the Constitution and applicable to any public service or any post which continued to exist after the commencement of the Constitution as service or post under a State shall continue inforce so far as consistent with the provisions of the Constitution unit other provisions is made into his behalf under the Constitution. The other provision contemplated under Article 313 of the Constitution is either the laws made by the Legislature governing the States services under Art. 309 of the Constitution or the Rules made by the Governor or Raj Pramukh, as the case may be under the proviso to Article 309 of the Constitution. Once Rules are made under the proviso to Article 309 of the Constitution by the Governor or Raj Pramukh those Rules being a provision made under the Constitution will supersede all laws in force immediately before the commencement of the Constitution in relation to a particular State Service. This clearly shows that the Rules made by the Governor or Raj pramukh under Article 309 of the Constitution is a law inasmuch as it supersede all the laws in force including the statutory law made in regard to the State Service prior to the Commencement of the Constitution Therefore the Rules made under Article 309 of the Constitution region on the date the States Reorganization Act came into force. continued to be infroce in that territory and the personnel who were governed by those Rules continued to be so governed. This conclusion also receives support from the proviso to sub-section (7) of sec. 115 of the States Reorganization Act. The proviso says that the condition of service applicable immediately before the appointed day to the case of any person belonging to a state service shall not be varied to his disadvantages exit with Government. The very restriction on the variation of the condition of service applicable immediately before 1-11-1956 without the prior approval of the Central Government does show that those conditions of service continue to apply to the personnel from the Telangana region allotted to the State of Andhra Pradesh. If the conditions of service were not to continue after such allotment, there was no meaning in providing that the conditions of service could not be varied to the disadvantage except with the previous approval of the Central Government. The proviso clearly means that the conditions of service will continue to govern such personnel and can be varied by the State of Andhra Pradesh without the approval of the Central Government if such variation is to the advantage of such personnel and with the prior approval of the Central Government if such variation is to their disadvantage. The conditions of service are governed by the Service Rules prescribing those condition. It cannot therefore be said that the service Rules that were applicable to the Telangna personnel did not continue after the formation of the State of Andhra Pradesh. The State of Andhra Pradesh was empowered to vary those Rules to the disadvantage of the personnel with the prior approval of the Central Government and to the advantage of that personnel without any such prior approval the reason being very obvious.

13. As far as the case of personnel from the State of Andhra is concerned, it has to be remembered that by virtue of the provisions of Section 3 of the States Reorganization Act, the State of Andhra pradesh is not a new State; but certain areas from the erstwhile Hyderabad State were added to the State of Andhra and the tepitory so formed was named as States of Andhra Pradesh. The State of Andhra Pradesh being not a new State, the continuation of the Rules of service applicable to the personnel in Andhra Region does not pose any problem. In our view the personnel from the two regions continued to be governed by the Service Rules in so far are their conditions of service were concerned , until integrated Rules were made in consonance with the provisions of Section 115 of the States Reorganization Act.

The learned Advocate General contended that by virtue of Section 116(1) of the Act, the Telangana personal were deemed(to be duly appointed by the State of Andhra Pradesh after !-11-56 Sub-section (2)of that section_empowered the competent authority to pass orders is relation to such Persons affecting their continuance in posts or office. The contention is that this this gave a wide power to the State of Andhra Pradesh to make Rules affecting their conditions of service. No doubt the State of Andhra Pradesh aid the power to make Rules affecting the condition of service of he Telangana Personnel; but those rules `ad to be subservient to Section 115 proviso of the States Reorganization Act, Further, the State Government has been empowered by sub-section (2) to pass orders regarding the continuance of any particular teleangana personnel in such post which he was occupying after the formation of the State of Andhra Pradesh. That lose not in so many words empower the State Government to vary his conditions of service s as to affect him dis-advantageously.

14. The position therefore that emerges from this discussion is that on 1-11-1956 the conditions of service(of the personnel from Telangana region continued to be(governed by the Hyderabad rules and the conditions of service from Andhra Region continued to be covered by the Andhra Rules. But as the two services had not been integrated and as no common gradation list had been drawn on that day, it was not possible for the 'Government to apply by of those Rules for purposes of making promotions as and when vacancies arose. It cannot be legitimately said that unless common gradation list was prepared and the integrated rules were made, no promotion should be made by the State Government. The Governance of the State has to be carried on during the interregnum and promotions if necessary have to be made during that period. The promotions made during that interregnum could not be under any of the Rules obtained in the State of Andhra Pradesh at that time. The State Government has necessarily to take resort to Article 162 of the Constitution of India.

15. Our view that proviso to Section 115 of the States Reorganisation Act pre-suppose the existence of he conditions of service, is supported by a decision of the Supreme Court in Raghvendra Rao v.Dy. Commr., South Kanara, AIR 1965 SC 136. Their Lordships laid down:-

'The broad purpose underlying the proviso to Section 115 of the States $ Reorganization Act was to ensure that that conditions of service should not be changed except with the prior approval of the Central Government. In other words, before embarking or varying he conditions of service, the State Government should obtain the concurrence of the Central Government.'

The argument f the learned Advocate General in relation to Section 519 of the States Reorganization Act was considered by Division Bench of this Court, in an unreported decision in Writ Petn. No. 4811 of 1968 (AP) an` batch rendered by the than Chief Judge and Ramachandras Rao. J. Their $ Lordships were considering the conditions of service of Civil Surgeon laid down by Fireman of H.EH. the Nizam. By reference to Section 119 of(the States reorganisation Act, the learned Judges Held: 'As we have held, H.E.H. the Nizam's Fireman regulating the conditions or service of the erstwhile personnel of the Hyderabad State, namely, those of Telangana is a law made by a legislature or a competent authority. those conditions of service cannot be altered without the previous approval of The Central Government. If no such previous approval of the Central Government is obtained, any rule made under the proviso to Article 309 or for that matter even a law made by the Legislature under that Article would not be valid.'

16. The learned Judges also held that a rule made under the proviso tog Article 309 of the Constitution in as much as until a law is made by the Legislature it has the force of law, 'is just as much a as any custom or usage having the force of law.'

17. Another Division Bench consisting of Gopalrao Ekbote and Sriramulu, JJ. held relying upon two decisions of the Supreme Court in C.A.No.811 of 1968 rendered on 9-4-1969 that the conditions of service !applicable immediately before 1-11-1956 to the case Of any person allotted from the Telangana regimen to the State of Andhra Pradesh shall not be varied to his disadvantage except with the(pervious approval of the Central Govt.

18. We will now proceed to examine the scope of Article 162 of the Constitution is so far as it concerns services. Article 162 provides that the executive power of the State shall extend to matters with respect to which the Legislature of the State has power to make laws. By virtue of Item 41 in List 11 of the Seventh Schedule of the Constitution, a Legislature of the State(has the power to make lass in regard to State public services. The executive power of the State being co-extendive with that of the State Legislature, the State Government has the executive power in regard to State Services. The scope of Article 162 came up for consideration before the Supreme Court in Nagarajan v. State of Mysore, AIR 1966 SC 1942. Their Lordships considered the argument that till rules are made n recruitment can be made to any service. This argument was advanced on the basis of the method of recruitment to the Mysore State Civil Services which provided that it shall be made by a competitive examination or by promotion. It was further provided that the method of recruitment and qualifications for each state civil service shall be as set forth in the rules of recruitment of such services specially made in that behalf. The contention advanced was rejected and it was observed;

'First it is not obligatory under proviso to Article 309 to make rules of recruitment etc. before a service can be constituted or a post created or filed. This is not to day that it is not desirable that ordinary rules should be made on all matters which are susceptible of being bodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of List II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur v. State of Punjab, : [1955]2SCR225 that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of the these laws. We see nothing in the terms of Article 309 of the Constitution, which abridges the power of the executive to act under Article 162 of the constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an at on the matter, the executive must abide by that Act or rule and it cannot inexercise of the executive power under Art. 162 of the Constitution ignore or act contrary to that rule or Act.:'

The Supreme Court again in Sant Ram Sharma v. State of Rajasthan, : (1968)IILLJ830SC was considering the argument that in the absence of any statutory rules governing the promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restriction for found in the Rules already framed. The Supreme Court observed:-

'We are unable to accept this argument as correct. It is true that there is no specific principles of promotion of junior or senior grade officers to selection grade pots. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions f the officers concerned to selection grade posts. It is true that Government cannot amide or super statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gap and supplement the rules and disused instructions not inconsistent with the rules already framed.'

The Supreme Court in Ramaswamy v. I.G. of Police, AIR 1966 SC 275 considered the question of Sub-inspectors of police of the Hyderabad State who had been allotted to the State of Mysore in the States Reorganisation. These Sub-Inspectors of Police had been put on the eligibility list for the posts of Circle Inspectors prepared before the States Reorganisation Act, 1956 in accordance with the provisions of the Hyderabad District Police Act (10 of 1329F) and the Hyderabad District Police Manual. After Their allotment to the State of Mysore, they were promoted on and hoc basis to the posts of Circle Inspector because the permanent incumbents had either gone on leave or were on deputation. On their return, the ad hoc Circle Inspectors were reverted to their sub-stantive posts of Sub-Inspectors. It was contended by them that they should not have been reverted without first revert and that their revision amounted to reductions in rank. The contention of the petitioners that they had any right under the eligibility list or that after they had actually been promoted they had a right to continue in the posts of Circle Inspectors, was negative. While considering the point that in any case till the final integration of service was made, the State Government was not entitled to take into account the provisional list of Sub-Inspectors and could only proceed to give promotions and to make transfere region wise according to the eligibility lists of former sets from which the territories came to the new State, it was observed that there was nothing in law which prevented the State Government from proceeding according to the provisional list after such list was prepared subject of course to this that if the provisional list in any way altered when the final list is prepared, the State Government world give effect to the final list. The Supreme Court observed:-

'The contention of the petitioners that the State Government should have continued to make promotions and transfers region wise only even after the provisional list was made, therefore, must fail. It may be added that the State Government would be entitled and bound after the appointed day to treat the State as one whole unit and make such orders of transfer, as it though fit, treating the whole state as one Unit.' The aforesaid decisions of the Supreme Court leave no doubt as to the executive power of the State under Art. 162 of the Constitution to issue administrative instructions or make provisions for the State Services in the absence of any Rules made in that behalf. It is the argument of the learned counsel for the appellants that the Hyderabad Rules which were applicable to Telangana personnel did not make any provision for making temporary promotions in clear vacancies. Hyderabad Civil Services Rules did not make any provision for a temporary appointment to a permanent post. The said rules made provisions for appointment to temporary post which has been defined in Rule 7 (50)as 'a post carrying a definite rate of pay sanctioned for a limited time.' It is argued tat the posts of Deputy Collectors are not temporary posts sanctioned for a limited time. The appointments to those posts could not be temporary appointments. As we have already stated the State of Andhra Pradesh was faced with a situation on 1-11-1956 in which it could not have made any promotions to the posts of Dy. Collectors under the Rules obtaining for the telangana personnel or the andhra personnel. It had to make add Dhaka promotions and those promotions could be made by the State Government under the executive power vested in it under Article 162 of the Constitution of India.

19. Yet there is another aspect of the case which can also be considered. The State Government having the power to appoint, has necessarily the implied power to appoint temporarily also. Of course that power is subject to the rules made for purposes of appointments and promotions to a particular state service. But if the Rules of the particular State Service do not provide for a situation, the State Government has certainly the implied power to make temporary appointments. The Supreme Court in S.D.O, Faizabad v. S.N. Singh, : [1970]1SCR151 while considering the provisions of the U.P. Panchayat Raj Act observed:-

'It is well recognied the where an Act confers a jurisdiction, it impolitely also grants the power of doing all such acts. or employing such means as are essentially necessary to its execution. But before implying the existence of such a power the Court must be satisfied that the existence of that power is absolutely essential for the discharge of the power conferred and not merely that it is convenient to have such a power.'

Applying the test laid down by the Supreme Court, to the case before us, we find that it was absolutely necessary to make temporary appointments for carry on the administration of the State as no appointment could be made under the two sets of Rules obtaining in the State of Andhra Pradesh on and after 1-11-1956d and there was no integrated list or common gradation list. Our answer therefore to question No. 1 is in the affirmative.

20. The second question poses the problem as to whether the rule of first promotion of Tahsildar of Telangana region as Dy. Collector in the State of Andhra Pradesh according to the Hyderabad Cadre and Recruitment Rules of 1955 in ply either (a) that there can be no temporary or provisional promotion of such Tahsildars after 1-11-56 of (b) that the promotion though expressly made temporary or provisional after 1-1-56 their selection would amount as a permanent promotion. In order to consider this question it is necessary to refer to the Hyderabad Cadre and Recruitment Rules 1955 relating to Tahsildars. By Notification No.194-GAD 19 RD-SRC-52 D/- 15-9-1955, the Rajramukh of the then State of Hyderabad gave sanction for the establishment of the State Service Cadres in respect of the Hyderabad Administrative Service. The notification fixes the strength of each of the said Cadres and the number and character of the post borne thereon. The Hyderabad Administrative Service, according to the notification consists of two classes-Class 1 posts and Class II posts. Class I posts are further sub-divided into senior scale and junior scale. The post of the Deputy Collector i.e., Divisional Officers is borne on the junior scale. The post of the Tahsildar is borne on class II posts. By notification No.195-GAD-19-RD-SRC 52 dt. 15.6.195 the Rajpramukh upon him by the proviso to Article 309 of the Constitution of India made rules retaliating the method of recruitment and prescribing the qualification in respect of the State and Subordinate Services pertaining to the Hyderabad Administrative Service. The Administrative Service is divided into two classes i.e., (a) State Service and (b) Subordinate service. The method or recruitment prescribed for all class I (junior scale posts) was by promotion by selection from case II officers The qualification preserved was, for promotion preserved was, for promotion a candidate should not be more than 45 years of age: but the age limit may be relaxed upto 50 years in case of exceptional merit. It has to be noted that as all class I junior scale posts had to be recruited by promotion by selection from Class II officers. the recruitment to the Deputy Collectors, according to the aforesaid Rules, was by promotion by selection from the Tahsildar. It has aslo to be noted that the only qualification prescribed is that the candidate should not be more than 45 years of age, which are limit may be relaxed upto 50 years incases of persons with exceptional merit.

21. The Cadre and Recruitment Rules, referred to above, do not lay down the manner in which selection from class II officers for promotion has to be made. That is provided fro by the Hyderabad General Recruitment Rules made under Article 309 of the Constitution of India by the Rajparamukh of Hyderabad and promulgated by notification No. 279-GAD-19-GEN-SRC 52 dt. 9-1-5. Rule 2 of these rules gives the various definitions. Clause (c) thereof reads:-

'Selection 'Means the selection after consulting the Commission, in respect of posts which are note excluded from the purview of the Commission, or selection by the advisory or selection committee if any, appointed for the purpose under the direction of Government or selection by the Appointing Authority in his discretion when no Advisory or selection committee has been appointed provided always that the provisions of these rules as regards method of recruitment and qualifications in respect of the class of pot for which the selection is made are fulfilled.'

Rules 3 further provides that the recruitment to the State and subordinate services shall be made in the competitive examination or by promotion or by selection. The method or recruitment and qualifications for each State and Sub-ordinate Service shall be as set forth in the particular recruitment rules of the various services issued separately. Rule 4 provides that appointments to the State and Subordinate Services shall be made subject to the provisions of the Rules, Sub-rule (3) of this rule lays down:-

'In the case of promotion, by selection from among the persons eligible for promotion. person according to merit alone it is a selection post and in other case on the basis of seniority, subject to the fitness of the candidate to discharge the duties of the post.'

It is not necessary to refer to other Rules.

22. According to these Rules in cases of promotion, to selection posts, promotion can be by selection according to merit alone; but in cases of posts which are not selection posts, promotion can be on the basis of seniority subject to the fitness of the candidate to discharge the duties of the post. There is nothing on record to should that the deposit of the Deputy Collector is a selection post. The recruitment therefore to the post of Deputy Collector can be by promotion from amongst the Tahsildars by selection on the basis of seniority subject to the fitness of the candidate to discharge the duty of that post. According to the feinting of the word d' selection' it has to be (1) in respect of posts which are not excluded from the pur-view of the Commission after consulting the Commission: (2) in cases advisory or selection committee is appointed for the purpose under the direction of the Government selection by such Advisory visors or selection committee; (3) when no Advise or selection by the appointing authority in its discretion.

23. It is not the case of the Government that any Advisory or sleet Committee had been appointed under the Hyderabad Rules for purposes of making selection to the posts of Deputy Collectors. The only two modes that remain for consideration are (1) by consultation with the Public Service Commission and (2) by selection by the appointing authority in its discretion. Consultation with the Public Service Commission has been made compulsory in respect of posts which are not exclude from the purview of the Commission. It is therefore necessary to see whether the post of the Deputy Collector was excluded from the purview of the Hyderabad Public Service Commission. If it is not excluded, than the selection object be only after for in sulting the Commission. According to Regulation (5) of the Hyderabad Public Service Commission (Consultation) Regulation, 1952 it was not necessary to consult the Commission in regard to any of the matters mentioned in sub-clauses (a) and (b) of Clauses 3 of Article 320 of the Constitution of India i.e., in regard to the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers. in the case of services and posts specified in the scheduled to the said Regulations. The schedule to the said Regulations does not consist of the post of deputy Collector. According to these Rules therefore the post of Deputy Collector is not one which has been excluded from the purview of the public services Commission and therefore according to the definition of the word 'selection' in Recruitment Rules, consultation with the Public Service Commission would be necessary But Regulation 6 of the said Regulation reads:-

'It shall not be necessary to consult the commission with regard to the promotion of an officer effort the lower scale to the higher scale within the same class of service.'

By Rule 6 it was provided that in regard to a promotion from a lower scale to the higher scale of the same class of service, Public Service Commission need not be consulted. But Rule 6 is not applicable in the circumstances of the case, as according to the Cadre and Recruitment Rules. 1955 the posts of deputy Collector and Tahsidar are borne in the different classes within the same service: the posted ofd the Deputy Collector being a classed I post and the post of Tahsildar being a class II post, In case of promotion from junior scale in class I to the senior scale in Class I Rule 6 would have been applicable and no consultation with the Public Service Commission was necessary. The position before 1-11-1956 therefore was that the promotion to the post of Deputy Collector from Tahsildar could only have been after consultation with the Public Service Commission. But the matter does not rest there.

24. After formation of the State of Andrea Prades, the State of Hyderabad was abolished and its three regions were emerged into other States. By virtue of sub-section (2) of Section 118 of the States Reorganisation Act the Hyderabad Public Service Commission i.e. A.P. State Public Service Commissioner which was governed by the Madras Public Service Commission Regulations, 1950 published with notification of the composite Madras Government in Public (Services) Department No. 36 dated 26-12-1950 and the ad-hoc Regulations issued in G.O. Ms. No. 776 dated 2nd June 1954 till the A.P. Public Service Commission Regulations were made in the yea 1963. As far as the question of consultation with the Public Service Commission is concerned the provision of the Regulation of 1963 is in pair nature with the earlier Regulations mentioned above. We will therefore refer to the provisions of the Public Service Commission Regulation of 1963.

25. Even for promotions under the Hyderabad Rules, the Public Service Commission of the State of Hyderabad could not have been consulted as it was abolished under Section 118 of the States Reorganisation Act. The only Public Service Commission that would be consulted was A.P. Public Service Commission of the State of Hyderabad could not have been consulted as it was abolished under Section 118 of the States Reorganisation Act. The only Public Service Commission that would be consulted was A.P. Public Service Commission. Regulation 15 (d) of the A.P. Public Service Commission Regulation provides that it shall not be necessary for the Commission to be consulted:-

'In regard to the suitability of candidates for promotion within the same service or for transfer from one subordinate service to another such service.'

According to the Hyderabad Cadre and recruitment Rules, the post of the Deputy Collector and the Tahsildar are borne on the Sate Service of the Hyderabad Administrative Service. The only difference being that the post of Deputy Collector was Class I junior scale post; whereas the post of Tahisdar was class II post. Therefore by virtue of the provisions of Regulation 15 (d) of the A.P. Public Service Commission Regulation, it was not necessary to consult the Commission in regard to the suitability ofd can did dated for promotion from Class II to Class I i.e., from the post of Tahsildar to the post of Deputy Collector. The position therefore obtaining in the State of Andhra Pradesh after 1-11-56 was that for promotion of the Telanagana Tahsildars t the post of Deputy Collector , consultation with the Public Service Commission was no longer necessary.

26. While dealing with question No.1, we have already held that in the situationd obtaining in the State of Andhra Pradesh on 1-11-1956 as regards the appointments of deputy Collector from Tadhsildars inasmuch as no integrated list or common gradation list of Tahsildars had been prepared, the State of Andrea Pradesh could not have given any promotions either under the Hyderabad Rules to the Relangana personnel or under the Andhra Rules to the Andhra personnel. In the circumstances then obtaining the promotion had necessarily to be on ad hoc basis which can only be temporary or provisional subject to review on preparation of the final common gradation list. In the circumstances it cannot therefore be said that there could not have been any temporary or provisional promotion to the post of Deputy Collector from Tahsildars. It is bitterly complained by the appellants that the prepared upto this date and seven the provision allgradtion list and evened the provisional gradation list which had been prepared has been given the go by and it looks as. if as far the Tahsildars are concerned, the position in 1970 is as was obtaining on 1-11-1956. The complaint is very much justified; but the delay, however regretable, in the preparation of the common gradation list does not alter the legal position ad does not take away the right of the Government to act under Art. 162 of the Constitution of India in circumstances mentioned by us above. It is not only highly desirable but it is essential that the Government takes urgent steps to complete the preparation of the common gradation list so that this long standing grievance is removed and some of the Tahsildars, who are likely to retire within a few years, at least get the benefit of promotion as Deputy Collectors,

27. The second part of this question proceeds on the assumption that the promotion expressly made that the promotion expressly made temporary or provisional after 1-1-1956 is without the process of selection. We have already observed that as far as the promotion of Tahsildar to the post of Deputy Collector is concerned there was no question of rearing the matter to the Public Service commission after 1-11-1956. The promotion being one by selection, can only be by the appointing authority. Evidently the appointment made without selection can never be considered as irregular appointment and if such an appointment is termed as temporary or provisional, it can never amount to a permanent promotion. It cases where the promotion is made after undergoing the process necessary for regular promotion but if such promotion is termed as temporary or provisional, such a promotion cannot be held temporary or provisional merely because it is so termed. The learned counsel for the appellant Deputy Collectors argued that their promotions though termed as temporary or provisional, were made in a regular manner after selection. We will advert to the matter later. At this stage we will answer the question No.2 is that there can be ad hoc promotion of Tahsildars governed by the Hyderabad Rules after 1-11-1956 and promotions expressly made temporary or provisional after 1-11-1956 without the process of selection cannot amount to permanent promotions,.

28. The third question is in regard to the necessity of consulting the Public Service Commission when promoting a Tahsildar of the erstwhile State of Hyderabad either temporary or permanently after 1-11-1956 to the post of Deputy Collector in the State of Andhra Pradesh. While considering question No.2 we have observed that though according to the Hyderabad Rules, consultation with the public Service Commission was necessary, yet as the Hyderabad Public Service Commission ceased to exist from 1-11-1956 and in accordance with Regulation 15 (d) of the Andhra Pradesh Public Service Commission Regulations, no consultation is necessary for promoting Tahsildar to the post of Deputy Collector as the posts are borne in the same service. As far as the temporary promotion is concerned the question of consultation with the Public Service Commission does not arise at all. Our answer to question No.3 is in the negative.

29. Question No.4 deals with the effect of consolation with the Public Service Commission in cases where no such consultation is necessary. The provisions of Regulation 15(d). of the Andhra Pradesh Public Service Commission Regulation says that it shall not be necessary for the Commission to be concandiates for promotion within the same service or for transfer from one subordinate service to another State Service. It does not lay down any embargo upon any consultation. Mere consultation with the Public Service Commission will not vitiate the reversion unless the Government while effecting reversion and coming to the consolation that the person reverted is unsuitable to the cost, had to exercised its own independent judgment and has surrendered its opinion to the opinion of the Public Service Commission. Even in cases where consultation with the Public Service Commission is necessary, the Government has to take its own independent decision as to the suitability of the candidate. In either case it cannot surrendered it judgment to the judgment of the Public Service Commission. Incases of consultation with the public Service Commission the Government has to take the opinion of the Public Service Commission into consideration and come to its own conclusion. A foreshore in a case where consultation with the Public Service Commission is not necessary, the Government has to from its own opinion in regard to the suitability of its candidate to a particular post. It is argued by the learned counsel for the appellants that in cases of the Deputy Collectors, the Government did not exercise its independent opinion but surrendered its judgment to the opinion of the Public Service commission and therefore the reversion is illegal. We will deal with this aspect of the case later.

30. The Supreme Court in State of U.P. v. Manbodhan Lal, : (1958)IILLJ273SC held that the provisions of Article 320 of the Constitution are not mandatory and non-compliance with those provisions does not afford a cause of action to civil servant in a Court of law. But once relevant Regulations have been made under the proviso to Article 320, they are meant to be followed in letter and spirit In cases where regulations for consultation have been made 'it is incumbent upon the executive Government when it proposes to take any disciplinary action against a public servant to consult the Commissions to whether action proposed to bee taken was justified and was not in excess of the requirements of the situation.' The Supreme Court further observed:-

'It is clear that the requirement of the consultation with the Commission does not extend to take advice of the Commission on those matters binding on the Government. In the absence of such binding character, it is difficult to see how non-compliance with the provisions of Article 320 could have the effect of nullifying the final order passed by the Government.'

Again their Lordships of the Supreme Court in U.R. Bharat v. Union of India , : AIR1962SC1344 held that provisions of Article 320 of the Constitution of India are not mandatory and do not confer any rights on the public servant and the Public Service Commission or any irregularity in consultation does not afford him a cause of action in a court of law.

31. Our answer to question No.4 is that more consultation with the Public Service Commission where such consultation is not necessary would not vitiate the reversion unless the aggrieve party is able to show that the Government while effecting reversion did not from an independent opinion of its own and had surrendered its judgment to the opinion of the Public Service Commission.

32. The first part of question No.5 is concerned with the effect of the Public Service Commission not being consulted for the continuance of the personnel either under the Hyderabad Public Service Commission Rules or the Andhra Pradesh Public Service Commission Rules in case of a post falling within its purview In our opinion the question of consultation with the Hyderabad Public Service Commission does not arise after 1-11-1956 as that Public Service Commission had ceased to exist by virtue of Section 118 of the States Reorganisation Act. We have already held that in view of the provisions of Regulation 15 (d) of the Andhra Pradesh Publish Service Regulation. there was no question of any consultation with the Andrea Pradesh Public Service Commission. The first part of question No.5 does not therefore arise.

33. The second part of the question deals with the effect if the Commission does not act as per Rule 4 (2) of the Andhra Pradesh Public Service Commission Rules 1963. As we have reached the conclusion that there was no necessity for consultation with the Public Service Commission, the question of the Commission acting under R.4 (2) reads as follows:-

'When considering the suitability of candidates under this rule if the commission feels any doubt about a candidate's fitness for the post or when there is difference of opinion between it and the head of the department it shall summon the candidate foreign interview. In the latter case it shall invite the head of the department concerned to be present or to appoint a representative to be present or to appoint a representative to be present and the head of the department or his representative so present may take part in the deliberations of the Commission but shall not be entitled to vote. It shall not be open to the head of the department or his representative to advance at such deliberations any grounds which are not already on record, or which should the Commission so require, he is not prepared to reduce to writing. A precise of the discussion duly attested by the head of the department or his representative, as the case may be shall be maintained.'

When a challenge is made under Rule 4(2) that the Commission has not followed the proper procedure prescribed in it, the Public Service Commission becomes a necessary party to the proceedings. In the instant case, the Public Service Commission has not been made a party and therefore we have no material as to whether the Commission while expressing its opinion on the suitability or otherwise of the candidates referred to it followed the procedure laid down in sub-rule (2) of Rule 4. The Appellants therefore are not entitled to raise this question. Our answer to question No.5 is that in the circumstances of the case before us, the question does not arise.

34. Having answered the questions referred to us, by the Division Bench, we will now proceed to consider individually the writ appeals filed before us.

35. As ready indicated, these Writ Appeals can be divided into separate categories. The appellants in W.A. No.167 of 1967 and W.As.Nos. 9, 10 and 11 of 1968 were Tahsildars on 1-11-1956 who were promoted as Deputy Collectors after that date and these Writ Appeals from one category. The second category consists of W.A. No. 253 of 1968 where the appellant was a Nayab Tahsildar. i.e., Deputy Tahsildar on 1-11-1956 and was later promoted as Tahsildar. In the third dated or the appellant in Wd.A. 34 ofd 1969 was the Uppar Division Clerk in the Electricity Department on 1-11-1956 and was promoted to the post of Accountant (non-gazetted)on 14-5-1959 and was later promotes Deputy Chief Accountant on 3-3-1062. The asset category consists of the appellants in W.As. 95. 102 and 178 of 1969 who were Accountants and Second Grade Clerks as on 1-11-56 in the Sales Tax Department. They were promoted as Assistant Commercial Tax Officers after that date.

Writ Appeal 167 of 1967 and Writ Appeals 9,10 and 11 of 1968:

The Appellants in W.A. 167/67 Abbas Hussain Naqui was first promotes Deputy Collector temporarily and posted to Bhongir Division by a notification No. 23, Revenue dated 17-10-1957. The Appellant in W.A. No.9 of 1968 is Abdur Rashid Khan who was temporally promoted as Deputy Collector under Rule 10 (a) (1) (I) of the A.P. State and Subordinate Services Rules by notification No.123 on 8-12-1959. The appellant in W.A. 10 of 1968 Shah Alam Khan was temporarily appointed as Deputy Collector under R.10 (a) (1) (I) of the A.P.State and subordinate Services Rules by notification No.125 dated 12-11-1960. The Appellant in W.A.No. 11 ofd 1968d Mohdi Ali khan was appointed as Deputy Collector under Rule 10 (a) (1) (I) of the A.P.State and Subordinate Services Rules by Notification No.28 dated 30-3-1960. The appellants in all the aforesaid four writ appeals continued to work as Deputy Collectors and also earned increments till their reversions in the year 1966.

36. In view of our answer to question no. 1, it cannot be said that these appellants could not have been appointed by the State Government as Deputy Collectors on an ad hoc basis. According to our answer to the first part of question No.2, they could have been promoted on an ad hoc or provisional basis after 1-11-1956. While answering the second part of question No.2 we have observed that if the appointments have been made after observations of the Rules for such appointments, the mere terming the appointment as temporary or provisional would no make them temporary or provisional the circumstances authorising such temporary or provisional appointment area sent. It therefore remains to be seen whether the appellants in these writ appeals were regularly appointed or promoted as Deputy Collectors. It is not disputed before us that the promotion of Telangana Tahsildar to the post of Deputy Collector is governed by the provisions of Hyderabad Rules as it is the first stage of promotion. In this context we need refer only to a few of the Circulars and G.Os. issued by the State Government. The first such G.O.is Ms. 497 dated 7-4-1960. It directs 'all employees of the erstwhile Government of Hyderabad will be governed by the Hyderabad Cadre and recruitment posts one stage above those held by them prior to 1-11-1956.'

Again in G.O. Ms. 588 dated 16th May 1961 it was directed:-

'The Andhra Probationary Rules will not apply to the Employees of the rest while Government of Hyderabad who are promoted according to the Hyderabad Cadre and Recruitment Rules to posts one stage above those held by them prior to 1-11-1956 (i.e. first promotion after 1-11-1956). They will, how ever, have to under go probation only if it is prescribed in the Hyderabad Cadre and Recruitment Rules.'

As the first stage of promotion is governed by the Hyderabad Cadre and recruitment Rues, there is no question of obtaining the consent of the Central Government under the proviso to Section 115 of the States Reorganisation Act. In the appeals before us the question whether the second stage of promotion should also be according to Hyderabad Rules as no specific prior approval restricting the applicability of the Hyderabad Rules to the first stage of promotions has not be obtained, was not raised before us. We therefore leave that question open.

37. We have already referred to the Rules obtaining in the State of Hyderabad in regard to the appointment of Deputy Collectors from the Tahsildars. This appointment has to be made by selection from Tahsildars. We have already stated that after 1-1-56 it was not necessary to refer the matter to the A.P. Public Service Commission. The selection therefore could have been by the appointing authority. It therefore remains to be seen whether there was any selection of the appellants. Reliance is placed by the earned counsel for the appellants on G.O.Ms. 2084 dated 30-11-1961. Sub-Para (ii) of Para 3 states:

'that the services in the cadre of Deputy Collectors of the Tahsildars already promoted temporarily during the period from 1-11-1956 to 31-12-1960 on the basis of the selection lists of both there goings be regularised without reference to their seniority position in the common gradation lists, on selection basis (merit-cum-seniority) in consultation with the A.P.P.S.C..)'

Stress is laid on the expression 'select lists' and it is argued that the persons who were promoted temporarily during 1-11-1956 to 31-12-1960 were on the basis of selection. It is contended the basis of Selection It is contended on the side of the Government that the expression 'select lists' does not mean the lists prepared after selection of the candidates by only means the lists prepared for purposes of promotion. In addition to the expression 'select list' occurring in this sub-Para, there is no other evidence to show that the promotions were made after considering the merits of the candidates and taking a decision in the matter. It is argued by Mr.Babulu Reddy the learned counsel for the Appellant in W.A. 167/67 that though the appellant was No.3 in the provisional list of the seniority of the Tahsildars, he was promoted earlier than No.2. His contention is that this definitely shows that a selection was made and that he was not promoted merely on seniority basis. He further contended that the appellant had been promoted as Deputy Collector as far as 17-10-1949 and was reverted in the month of March. 1952. But by the proceedings of the Government dated 2-8-1955 it is clear that if he earned three good reports commencing from d1954, his case will be considered for promotion as Deputy Collector. He was promoted on 17-10-1957 as he had earned three good reports in the mean while. According to the learned counsel, all this goes to show that the promotions of the appellant in Writ Appeal 167/67 was based on selection and not merely on seniority.

Merely because the appellant though No.3 in the list, was given preference to No.2 in the provisional common gradation list of the Tahsildars, is not sufficient to hod that his promotion was based on selection. The Government proceedings dated 22-8-1955 only meant that the name of the appellant will be considered for the post of Deputy Collector if he earned 3 good resorts after 1954 thereby meaning that if he failed earn such good reports. his made would not at all be considered for promotion. This does not also take in selection from the available candidates. The very word 'selection' implies that the relative merits of the candidates according to the seniority was considered and appointment made. There is nothing on record to show that the appointments of the appellants were made in that manner. In view of the absence of Sony such material, it cannot be said that the appellants were promoted regularly to the posts of Deputy Collectors in accordance with the Hyderabad Rules.

Further, we have already remarked that the appointments of these persons were only ad hoc appointments and the question of applying Hyderabad Rules of these appointments does not arise. Some of the appointments as already indicated, have been made under Rule 10 (a) (1) (I) of the Andhra Pradesh State ad Subordinate Services Rules. Recourse can be had to that Rule if it is necessary in the public interest to fill urgently a vacancy in the post of the filling up of such vacancy in accordance with the Rules in likely to result in undue delay. We have already observed that after 1-11-1956 there being not in existence any integrated list or commongradtion list, it was necessary in the public interest to fill emergently the posts of Deputy to fill emergently the posts of Deputy Collectors that had become vacant. As the Rules obtaining in Hyderabad as in Andhra could not be applied at that stage. it was not possible for the Government to make appointments to fill up such vacancies in accordance with the Rules. Vacancies could have been filed up according to Rules only after the preparation of common gradation list which would take sufficiently long time -nay it has already taken more than 13 years. Filling up the posts according to either Rules could have therefore resulted inundue delay and it was eminently a fit case for action either under Rule 10 or Rule 37 if the State and Subordinate Services Rules if those Rules are applicable; if these rules are held no applicable in the circumstances, indicated by us, it was a case where ad hoc appointments had to be made. The contention therefore of the learned counsel for the appellants cannot be accepted that because the appellants had been appointed regularly, they were permantely appointed or that there wee no circumstances under which temporary or ad hoc appointments could have been made.

38. Our attention was drawn to certain decided cases on the strength of which it was argued that if the appointment is continued for a long period, it cannot be presumed to be a temporary or provisional appointment. The Supreme Court in Nimbi v. Union of India, : (1968)ILLJ264SC was considering the case of a person who was appointed in an officiating capacity. It was stated in the affidavit filed by the Government that as the vacancy could not be filed up by a particular method, recruitment from the on market was resorted to and all officers thus recruited to the service were initially appointed in the junior scale of the Indian Police Service. The result was that there was some senior posts that had to be filled and some State Police Service Officers who had not been selected to the service through any of the available recruitment methods were inview of the existing paucity of officers, allowed to officiate on senior posts as a stop-gap arrangement. Adverting to this statement of the Government, it was observed that such a stop-gap arrangement cannot last for 8 years and it has been shown that the appellants was appointed temporally in the place of some persons as subsequently he had never been reverted. This case is clearly distinguishable from the case before us. There was no question of any common gradation list to be prepared till the preparation of which the appointments could not be made in the regular manner. It was in the peculiar circumstances obtaining in that case that the Supreme Court came to the conclusion that it was not a stop-gap arrangement. It does not lay down any general principal that if a temporary or provisional appointment continued for a number of years, it should be considered as permanent appointment.

39. In State of Punjab v. Dharam Singh, : [1968]3SCR1 their Lordships considered a case of a person who had been on probation. According to the service Rules obtaining the period of probation could not have been extended beyond a certain fixed period of time. After the conclusion of the period of probation fixed, the person was continued in the post. In these circumstances it was argued that as no express order of confirmation was made, he should be deemed to continue in that post as a probationer by implication. The Supreme Court held that as the period of probation could not be extended beyond the particular limit, and as the person had passed that limit he could not be deemed to continue in the post as a probationer even though an express order of confirmation had not been passed. It was observed:-

'In such a case it is permissible to draw an internee that the employee allowed to continued in the post on compilation of the maximum period of probation has been confirmed in the post by implication.'

Clearly this case does not apply to the case before us and it was in view of the particular Rule in regard to probation that the Supreme Court held that the particular implication could be drawn.

40. Reliance was also placed on some of the decisions of this Court in this context. The first such decision that was relied upon is a decision of P.Jaganmohan Reddy, J. (as he then was) in Writ Petn. No. 289 of 1962 (AP). There was an appeal from this decision and in that appeal the Writ petition was dismissed as withdrawn. The decision therefore does not exist in law. Another decision that was relied upon in decision in Writ Petn. No. 1254 of 1957 (AP) rendered by our learned brother Kupuswami, J. on 10th October, 1968. He placed reliance on Writ Petn. No. 289 of 1962 (AP) and came to the conclusion that the appointments in that case though termed 'temporary'. were permanent. A reading of the decision shows that in that case appointments were made regularly under the Hyderabad rules and the learned Judge came to the conclusion that though termed 'temporary' but as they were made on regular basis, they should be considered as permanent.

41. Our learned brother Krishna Rao. J was considering a case of persons temporarily promoted under R.10 (a) (1) (I) of the Andhra Pradesh State and Subordinate Services Rules in Writ Petn. No. 2321 of 1969, D/- 27-10-1969 (AP). In that case the learned Judge observed that the Rules cited could be resorted to only if the circumstances permit the application of that Rule, On the facts of the case, he came to the conclusion that the circumstances did not permit the application of Rule 10 (a) (1) (I) and therefore the appointments though called temporary, were permanent. Reliance was also placed on a decision of one of us in Writ petn. No. 290 of 1969 (AP) rendered on 29th July, 1969. In that case also the question of applicability of Rule 10 (a) (1) (I) came up for consideration and it was held that the was no occasion to take any action under the provisions of Rule 10 (a) (1) (i).It was further observed that the appointments were made in accordance with the Rules then subsisting and therefore it was held that though the appointments were termed as temporary they should be considered as permanent.

42. In our opinion none of the aforesaid decisions help the appellants in any manner. We have already held that the appointment of the appellant as Deputy Collector was not in accordance with the Hyderabad Rules and that these appointments were made on an ad hoc basis and the circumstances prevailing then, did entitle the Government to make such ad hoc appointments.

43. We therefore conclude that though the appellants continued in the posts of Deputy Collectors for a condsierably long time, the mere continuance does not make their appointments permanent.

44. It has then argued that there was no provision in the Hyderabad Rules for regularising the appointments of the appellants. We have already stated that the appointments of the appellants were not made under the Hyderabad Rules. They were ad hoc appointments made by the Government under the powers vested into under Article 162 of the Constitution of India. There being no Rules in existence in regard to such appointments, it was for the Government to decide the manner in which they would requires these appointments. The Government by its G.O.Ms. 2084 dated 30th November 1961 took the decision that the appointments should be regularised 'without reference to their seniority position in the common gradation list, on selection basis (merit-cum-seniority) in consultation with the Andhra Pradesh Public Service Commission.' This decision was followed by the Government by referring the cases of all the promotes during the period 1-11-1956 to 31-12-1960 including those of the Writ Appellants to the AP. Public Service Commission. The A.P. Public Service Commission gave its opinion that the appellants were not suitable for being regularised as Deputy Collectors. As the Government had decided that the posts of these persons be regularised inconsultation with the Public Service Commission, it cannot be said that it acted illegally incepting the opinion expressed by the Public Service Commission. The Government has denied that while reverting the appellants it surndered its judgment to the opinion of the Public Service Commission and asserted that it considered the case of the appellants on their merits in the light of the opinion expressed by the Public Service Commission. We do not see any reason to reject this assertion of the Government.

It was argued by the learned counsel for the appellants that it is very strange that persons who were working as Deputy Collectors , in some cases for a period of 7-8 years were suddenly found unsuitable by the Government. The mere fact that the appellants were working as Deputy Collector for a long period does not mean that they were retained in the post being found suitable for the job. As already stated, the Government did consider their cases and it cannot be said that the Government surrendered its judgment and merely accepted the opinion of the Public Service Commission.

45. It was also argued that the Public Service Commission before coming to the conclusion that the appellants were not suitable for the posts of Deputy Collectors, should have acted according to the provisions of Rule 4 (2) of the Rules of Procedure of the A.P. Public Service Commission. We have already observed that that matter cannot be gone into as the A.P. Public Service Commission is not a party before us and therefore we cannot come to any conclusion as to whether the provisions of Rule 4 (2) have been observed or not.

46.There remains yet another point to be considered in relation to these appeals which to some extent is common to other appeals. It is the question of the applicability of Article 311 of the constitution of India. The appellants contentions that their reversions to the posts of Tahsildrs in effect amount of a reduction in rank inasmuch as it casts a stigma on their career, and affects their future chances of promotion. In order to determine whether the reversion of the appellants amounts to reduction in rank, it is necessary to consider the authorities cited before us it this context. The leading case on the subject is Dhingra's case, (Purshotam Lal Dhingra v. Union of India). : (1958)ILLJ544SC . It is now settled law that the provisions of Article 311 of the Constitution are applicable if termination of service or reduction in rank is sought by way of punishment. In order to the termination or reversion amounts to penalty, certain tests were laid down first such test was:-

'When a servant has right to a post or to a rank either under the terms of the contract of employment. express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment for it operates as a forfeiture of his right to hold that post or that rank and do get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a Post, permanent or temporary either on probation or on an officiating basis an whole temporary service has not penned into a qusi-permarary Service Rules. termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment.'

Similarly,

'If the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Art 311 is not attracted.'

But if the Government

'Choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, in efficiently or other dis qualification, then it is a punishment and the requirements of Article 311 must be complied with.'

The reduction in rank may be 'by way of punishment or it may be an innocuous thing. If the Government servant has right to a particular rank, then the very reduction from the rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has by contract express or implied or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entail so provides for the forfeiture of his pay or allowances of the loss of his seniority insubstantitive rank or the stoppage or post ponement of his future chains of promotion then that circumstance may indicate that although inform the Government has purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract or employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression 'terminated or disagreed' is not conclusive. In spite of the use of such innocuous expressions the court has to apply the two tests mentioned above, namely (1) whether the servant had a right to the post or the rank or (2) whether he had been visited with evil consequence of the kind herein before referred to? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311 which give protection to Government servant has been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.'

47. The Supreme Court considered the question of reduction in rank in Madhav v. State of Mysore. : [1962]1SCR886 . After referring to : (1958)ILLJ544SC it was held;

'Mere deprivation of higher emoluments as a consequences of reversion cannot amount to evil consequences referred to in the second test in Dhingra's case, they must mean something more than deprivation of higher emoluments. That being so, they include , for example, the forfeiture of substantive pay, loss of seniority etc.'

But in the case before the Supreme Court the appellant had lost his seniority as a Mamlatdar which was his substantive post. It was therefore held that it was not a simple case of reversion a case which would come within the test laid down in Dhingra's case. : (1958)ILLJ544SC .

48. In P.C. Wadhwa v. Union of India, : (1964)ILLJ395SC the Supreme Court held that the reversion in that case entails loss of seniority and post-ponement of future chances of promotion. While coming to this finding it was observed:

'When a person is reverted to his substantive rank, the question on penal consequences in the matter of forfeiture of pay or loss or seniority must be considered in the context of his substantive rank and not with reference to his officiating rank from which he is reverted, for every reversion must necessarily mean that the pay will be reduced to the pay of the will be reduced to the pay of the substantive rank. A matter of his kind had to be looked at from the point of view of substance rather than of from . . . Therefore what is to be considered in a case of this nature is the effect of all the relevant factors present therein. If an a case of this nature is the effect of all the relevant factors present therein. If on a consideration of those factors the conclusion is that the reduction is by way of punishment involving penal consequences to the officer, even though the Government has a right to pass the order of reduction the provisions of Article 311 of the Constitution are attracted and the Officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him.'

In another case, the Supreme Court in Jagdish Mitter v. Union of India, . : (1964)ILLJ418SC , after reiterating the various tests, held that when the order of reversion is to the effect that the servant was found undesirable to be retained in Government service and that such order expressly cast stigma don the servant, it was an order of dismissal and not a mended order of dismissal and not a mere order of discharge. While coming to this conclusion, it was observed:

'To say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first case, a stigma, attaches to the servant, while in the second case, termination of service is due to the consideration that a temporary servant need not be continued, and in that sense, no stigma attached to him. Any one who reads the order in a reasonable, and that must necessarily import an element of punishment which was the basis of the order and was its integral part. When an authority ants to terminate the services of a temporary servant. It can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, did would be idled to suggest that the order is a simple order of discharge'.

Their Lordships of the Supreme Court in State of U. P. v. Madan Mohhan Nadgar, ofd U. P. v. 1690 were considering the case of a person who had beaded asked to retire stating that held had outlived his utility. It was held that the order of compulsory retirement cast an aspersion and attached a stigma to the Officer.

49. In Debauch Chandra Das v. Union of India, : [1970]1SCR220 the appellant who was a state Cadre Officer of the Indian Administrative Service was promoted to the tenure post under the Government of India. Before the expire of the tenure period, he was reverted to the State Service - the reason for such reversion being given as unsatisfactory performance. Before issuing the order of reversion, he was asked to elect between reverting to the State Service or going on leave preparatory to retirement or serving under the Government of India in a post lower than that of a Secretary. After referring to the three alternatives given to him, their Lordships observed at the end of a Para 14:-

'The fact that it was found necessary to break into his tenure period close to it not must be read in conjunction with the three alternatives and they clearly demonstrate that the intention was to reduce him in rank by sheet pressure of denying him the Secretaryship. No Secretary, we were told, has so far been sent back in this manner and this emphasises the element of penalty and his retention in Government of India on a lower post thus was a reduction in rank'.

The Supreme Court has thus laid down that if the Government servant has got a right to the post and if he is reverted to a lower rank, it is a clear cased of reduction in rank. In cases where he has no right to the post the reversion would amount to reduction in rank. if such reversion casts a stigma on him or results in evil consequence. The Supreme Court in Dhingra's case, : (1958)ILLJ544SC has enumerated the nature of this penal or evil consequences. If the order entails or provided for for feature of pay or allowances or the loss of seniority in the substantive rank or stoppage or postponement of his future chances of promotion, such cases may indicates that the reversion has resulted in evil consequences.

50. Applying the test laid down by the Supreme Court, we have to determine whether in the cases before us though the appellants were reverted to the substantive post of Tahsildar. such reversion amounts to a reduction in rank. We have already held that they had no right to the post and the referred their reversion does not amount to a reduction in rank. It has therefore to be seen next whether such reversion has cast ad stigma or has resulted din evil consequences to them. It is argued by the learned counsel for the appellants that when a person is reverted. after working for a number of years, as unsuitable to the post it certainly cast stigma on his career. We do not agree with this contention. In the cases cited before us, the government servant was reverted either on the ground that he was undesirable to be retained in the post or his conduct was unsatisfactory or he had outlived his utility. All these are clear cases where a stigma is cast upon the Government servant. Can it be said that because a person is found unsuitable for the job, a stigma is cast upon him? Unsuitability for the job may arise out of a number of circumstances which may or may not include his efficiency, his conduct or his desirability for the post concerned. The word 'unsuitable' is a very wide word which takes in other cases than cases of inefficiency, undesirability, unsatisfactory conducted etc. That being so, we cannot hold that if a Government servant is found unsuitable for a job, any stigma is cast upon him.

51. Our attention was drawn by the learned Advocate General to the provisions of Article 320 of the Constitution of India in support of his argument that unsuitability cannot be a stigma on a public servant. That Article provides that the Public Service Commission shall be consulted don the principles to be followed din making appointments, promotions and transfers an the suitability of candidates for such appointments, promotions or transfers. He also relied upon a decision of the Calcutta High Court inn Ranjit Kumar Chakraborty v. State of West Bengal, : (1968)IILLJ210Cal where a Division Bench held that if a temporary Govt. servant is discharged on account of unsuitability and such a discharge is not by way of punishment, it does not attract the provisions of Article 311 of the Constitution.

52. It was argued by Shri Krishna for the appellants that the A. P. Civil Services (Classification, Control and Appeal)d Rules (hereinafter referred to aside the Classification Rules) lay down cases inn which reversion would not amount to a reduction within the meaning of the Rule. Sub-rule (1) of Rule 8 specified penalties that can be imposed on the Govt. servant, one such penalty being reduction to a lower rank in the seniority list or to a lower post whether is the same service or in another service, State or Subordinate, door to a lower stage in a time scale. Sub-rule (3) of this Rule reads:-

'The reversion of a person from a department in which he is on deputation to his parent department, or to a post not lower than the post on which he holds a lien or a suspended lien, shall not amount to reduction within the meaning of this rule:

Provided that such reversion is not by way of punishment for any misconduct or unsatisfactory work but is for administrative reasons unconnected with his work or conduct'.

The first question that arises for consideration is whether this sub-rule (3) is limited to persons on deputation or is applicable to all Government servants who are reverted. two constructions of the Rude have been suggest to us. The learned counsel for the appellants argues that the Rule provides for a cased of reversion of a Government servant to a post not lower than the post on which he holds a lien or suspended lineal while the learned counsel for the Government argues that the Rule is limited only to a Government servant on deputation. We do not think it necessary to go into this controversy as we are of the opinion that even if this Rule is considered to be a general one and also relates to Government servants who are not on deputation, it does not help the appellants in the instant case. It says that the reversion of a person to a post not lower than the Post no which he holds a lien or suspended lien, shall not amount to reduction if such reversion is not by way of punishment for any misconduct or unsatisfactory work; but is for administrative reasons unconnected with his work or conduct. By virtue of this Rule only a reversion which is by way of Punishment for misconduct or unsatisfactory work, amounts to reduction within the meaning of this Rule and such reversion is to a post not lower than the post on which the Government servant holds a lien or suspended lien. In other words if a person is reverted to a substantive post by way of punishment for any misconduct or unsatisfactory work, it will be a case of imposing penalty or reduction in rank. It is argued that not only all the reversions which are by way of punishment for misconduct or unsatisfactory work. amount to reduction in rank, but also those reversions which are not for administrative reasons unconnected with his work or conduct. d We are off the opinion that what is necessary for the purposes of determining whether the reversion amounts to imposing a penalty of reduction in rank, is that such reversion is by way of punishment for any misconduct or unsatisfactory work. The second part of the proviso only clarified the position that if reversion is for administrative reasons, unconnected with the work or conduct of a Government servant and is not by way of punishment for misconduct or unsatisfactory work, that it will not amount to reduction in rank. As reversion of a person, to his substantive post because of unsuitability cannot be considered by way of punishment for any misconduct or unsatisfactory work, we are of the opinion that it does not amount to the penalty or reduction in rank. Reversion on the ground of unsuitability may be for administrative reasons unconnjeted with the work or conduct of the Government servant.

53. It then remains to be seen whether any evil consequences have resulted to the appellants because of the revision. It has not been shown to us that while reverting them any order has been passed which would affect the seniority in the substantive post of the Tahsildar. It cannot be said that because the persons junior to the appellants have been continued as Dy. Collectors, that affects the seniority of the appellants in their substantive rank of Tahsildar. It is argued that their future chances of promotion have been adversely affected and therefore the reversion has resulted in evil consequences. In support of this argument our attention was specifically drawn to para 3 of G. O. Ms. 2084 dated 30-11-1961. That Para reads:

'The issues raised by the Board of Revenue were again examined carefully in great detail in consultation with the Government of India. Inn suppression of all the earlier decisions in this regarded the Government have deiced:

(I) that a common gradation list of Andhra Tahsildars as on 1-11-1956 with referenced to the dates and commencement of probation as Tahsildars, be prepared in the first intense and thereafter a common gradation list of Tahsildars of both the regions as on 1-11-1956 on the basis ofd C.d. G. Lit of d' andhra Tahsildars and the existing list of Telangana Tahsildars be prepared. The C. G. List so prepared should be circulated to the Officers concerned, inviting their objections if any;

(ii) that the services in the cadre of Dy. Collectors of the Tahsildars already promoted temporarily during the period from 1-11-56 to 31-12-60 on the basis of the select lists of both the regions be regularised without reference to their seniority position in the common gradation list, on selection basis (merit-cum-seniority) in consultation with the A. P. Public Service Commission;

(iii) that the inter se seniority of the candidates mentioned in item (ii) above be determined with reference to the dates of their appointments as Dy. Collectors and continuous officiating in that cadre;

(iv) that the common gradation list referred to in item (I) above, excluding the candidates mentioned in item (ii) above, be followed for future appointments as Deputy collectors'.

It is argued on the basis of sub-Para (iv) that as the appellants belonged to category of Dy. Collectors promoted during 1011056 to 31-12-60 i.e., the category mentioned in sub-Para (ii) their names will not be included in the common gradation list referred to din sub-para (I) and therefore they will not be considered for future appointments as Dy. Collectors. Sub-Para (I) states that the common gradation list of Andhra Tahsildars as on 1-11-56 and the existing list of Telangana Tahsildars be prepared on certain principles laid down in this sub-Para. Sub-Para (ii) say that the services in the cadres of Dy. Collectors of the Tahsildars already promoted between 1-11-56 to 31-12-60 be regularised. A reading of the sub-Para (I) shows that a common gradation list of Tahsildars of both the regions as on 1-11-1956 will be prepared. Persons who are regularised under sub-Para (ii) will not be considered for promotion under sub-Para (iv) as their promotions had already been regularised. Persons whose promotions could not be regularised. in accordance with sub-Para (ii) will find a place in the common gradation list. It cannot be said that because they were promoted as Dy. Collectors during a particular period, they were not Tahsildars on 1-11-56 and therefore they would not find any place in the common gradation list prepared under sub-Para ( I). A reading of Para 3 of this G. O. shows that all the persons whose names appear in the common gradation list of Tahsildars prepared udder sub-Para (I) will be considered for future promotions except those persons whose promotes as Deputy Collectors were regularised under sub-part (2). Thus sub-Para (iv) does not lead to the conclusion that the appellants will not be considered for future promotions as their promotions as Deputy Collectors were not regularised under sub-Para (ii).

Further it has to be noted that all the promotions made prior to the preparation of common gradation list are temporary and will have to be reviewed after the common gradation list is prepared. Further it was represented to used by the learned Advocate General that the promotions are all on ad hoc basis and provisional. In these circumstances, we cannot hold that the future chances of promotions of the appellants will be jeopardised by their reversion from the post of Deputy Collector to the post of Tahsildar. They wild handed their seniority and their names will be considered when future occasions raised. The mere fact that they have lost the emoluments of the post of Deputy Collector are not sufficient to hold that the reversion has resulted in evil consequences to them as held by the Supreme Court. On a review of all the material on record we hold that the reversion of the appellants to the Post of Tahsildar neither casts any stigma nor results in any evil consequences to them and therefore the question of the applicability of Article 311 of the Constitution does not arise. In the result we dismiss the writ appeals of these four appellants.

54. W. P. No. 24 of 1969: - In this appeal the appellant who was promoted as Deputy Chief Accountant under Rule 10 (a) (1) (I) on 3-3-1962 was reverted odd his substantive post of Accountant (non-gazetteer). The only question that was argued in respect of this appellant by the learned counsel Mr. Jalil Ahmed was that the Public Service Commission while finding him unfit, did not follow the procedure laid down in Rule 4 (2) of its Rules of Procedure. Admittedly the promotion from the post of Accountant to the post of Dy. Chief Accountant is from the Subordinate Service to the State Service and is not exempt under Regulation 15 (d) of the A. P. Public Service Commission Regulations. We have already held that no objection under Rule 4 (2) can be entertained if the Public Service Commission is not a party . In the cased before us, the Public Service Commission has not been made a party. We therefore cannot entertain this objection.

55. It was also argued that the Government while following the opinion of the Public Service Commission did not exercise its independent judgment and surrendered its judgment to the opinion of the Public Service Commission. We do not find sufficient material on record to come to the conclusion that the Government did not exercise its independent opinion. Reliance is placed by the learned counsel for the appellant on a letter of appreciation issued by the Superintending Engineer on 27-8-1965 to show that the appellant is a competent person. Be that as it may, it is not sufficient to show that the Government was entirely guided by the opinion of the Public Service Commission and did not exercise its mind while reverting the appellant.

56. It now remains to be seen whether the appellant's reversion amounts to reduction in rank. The order of reversion does not give any reasons. But the Government has stated in Para 7 of the counter that the appellant was reverted because he was not found fit by the Public Service Commission. In our opinion this casts a stigma on the appellant and is reversion amounts to reduction in rank. The order of reversion therefore could not have been issued without following the procedure laid down even Article 311 of the Constitution of India which admittedly has to been doing. W therefore find that the order of reversion is bad and we quash the same. In the result Writ Appeal No. 24 of 1969 is allowed.

57. W. A. No. 253 of 1968: - The appellant in this case wash working as a Revenue Inspector from 1946 and was promoted as permanent Dy. Tahsildar on 5-10-1953 and was working as such on 1-11-1956. On 28-12-1961 he was selected for appointment as temporary Tahsildar and he was posted in a clear vacancy on 3-1-1962. He was reverted as Dy. Tahsildar on 17-9-1964. The promotion of the Appellant from the post of Dy. Tahsildar to that of the Tahsildar has to be according to the Hyderabad Rules as it is first stage of promotion. Under the Hydrabad Rules the Post of Tahsildar is a Class-II post Ind the State Service and that of Nayeb Tahsildar a post in the Subordinate Service. The Cadre and Recruitment Rules for the Tahsildars lay down that for promotion of Nayeb Tahsildars, the Board of Revenue should prepare a panel of Nayeb Tahsildars eligible for promotion in consultation with the Revenue Department and the Public Service Colmmission. According to these Rules, consultation with the Public Service Commission is necessary and Rule 15 (d) of the A. P. Public Service Commission Regulation down not take this case out of cases wherein the Public Service Commission shall not be consulted as the promotion is not within the same service as it is from Subordinate Service to the State Service. But reliance is placed on G. O. Ms. 520 dated d4-4-1960 whereby it was proved that its shall not be necessary to consult the Public Service Commission in respect of pots of Tahsildars in the A. P. Civil Services Executive Branch regarding all matters mentioned in sub-clauses (a) and (b) of Cl. (3) of Art. 320 of the Constitution of India. But this G. O. was revoked by G. O. Ms. 1453 dated 15-11-61. The position therefore on 20-12-1961 when the appellant was selected for posting as temporary Tahsildar was that consultation with the Public Service Commission was necessary. Admittedly the appellant was not appointed as temporary Tahsildar after consultation with the Public Service Commission. Before reverting him the opinion of the Public Service Commission was taken and the counter of the Government states that he was reverted because he was found unsuitable. d While considering the cases of Dy. Collectors we have held that if a person is deverted don the ground of unsuitability it does not cast any stigma upon him. There is nothing to show that any evil consequences have resulted to the appellant because of this reversion. The applicability of Art. 311 of the Constitution therefore does not arise.

58. It wash also argued by the learned counsel for the appellant that the appellant has been reverted by the Board of Revenue which is not competent to impose penalty of reduction of rank as the appointing authority is the Government. But from the record we find that the appellant's order of appointment has also been made by the Board of Revenue. In these circumstances it is not for the appellant to raise the ground that he has been reverted by an authority who is not the appointing authority. This Writ Appeal also fails and is dismissed.

59. W. A. Nos. 95, 102 and 178 of 1969: - The appellants in Writ Appeal No. 95 of 1969 are from the Hyderabad Division; while the appellants in Writ Appeal 102 of 1969 are from Wrangle Division and Writ appellants in Writ Appeal 178 of 1969 are from Nizamabad Division. The appellants in all the writ appeals were working as Accountants and Second Grade Clerks and had been confirmed in that position prior to 1-11-1956. In the Hyderabad Sales Tax Department and the Subordinate Services consisted of Surveyors and Accountants. After the formation of Andhra Pradesh, in the reorganization f the Sales Tax Department. Telangana was divided into three divisions viz., Hyderabad , Nizama bad and Wrangle. The post of Surveyors in the Hyderabad Sales Tax Department was equated with that of the Assistant Commercial Tax Officer (hereinafter referred to as A. C. T. O.) and that of the Accountants and 2nd grade Clerks with that of the U. D.d Cs. (Upper Division Clerks). Under the Hyderabad Rules made under the proviso to Article 309 of the Constitution and notified by notification No. 301/GAD.SRC/19-FDE/52 dated 20-1-55 laying down the rules regulating the method of recruitment and prescribing the qualifications in respect of the State and Subordinate Services pertaining to Sales Tax Branch of the Hyderabad General Service provided under B-Subordinate Service two posts-Surveyors and Accountant. Recruitment to the post of Surveyors was by direct recruitment to the extent of 50% and 50% by promotion from the ranks of Accountants and 2nd Grade Clerks. Under the Column 'qualification' what was stated was that the promoted officials can be confirmed only after they passed either Departmental examination prescribed for the Sales Tax Offices and the surveyors. Recruitment to the post of Accountants was 50% by direct recruitment and 50% by promotion from 3rd grade Clerks who had passed the Accountants Examination conducted by the Finance Department. Thus it is very clear that under the Hyderabad Rules it was only the Accountants and 2nd Grade Clerks who were eligible for promotion as Surveyors-now equated with the post of A.C.T. Os. the 3r Grade Clerks were eligible for promotion as Accountants only if they had passed the Accountant's Examination conducted by the Final e Department. The State Government by G. O. Ms. 170 dated 30-1-1962 notified Special Rules made by the Governor of Andhra Pradesh under the proviso to Article 309 of the Constitution of India in regard to the A. P. Commercial Taxes Subordinate Service. According to R. 1 this Subordinate Service consisted only of the A. C. T. Os. Rule 2 provided for the appointment to the post of A. C. T. O. There were three sources for appointment; one was from among the clerks employed in the Commercial Taxes Department; (2) by transfer among the suitable members of the A. P. Revenue Subordinate Service in the category of Tahsildar; and (3) by direct recruitment. Out of they substantive vacancies, 40% were to be filled up or reserved to bed filled up by direct recruitment and the remaining vacancies by transfer. Rule 3 (a) provided that the appointment of A. C. T. O. by Transferee shall be made from the list of approved candidates prepared for each year by the Board of Revenue for each division of the Deputy Commissioner of Commercial Taxes. Rule 4 prescribes the appointing Authority as the Deputy Commissioner of Commercial Taxes. Rule 6 prescribes qualification. By virtue of Clause (b) of Rule 6 it was proved that no person shall be eligible to have his name included in the list f approved candidates for appointment as Assistant Commercial Tax Officer if he has not acquired the requisite qualification for inclusion Ind dusted list on the date on which the proposal for inclusion in such list are due to the Board of Revenue from the Deputy Commissioners of the Divisions concerned. d Sub-rule (2) of Rule 6 prescribes the appointment of A. C. T. O. by transfer from Andhra Pradesh Ministerial Service or the A., P. Secretariat Service. The clerks in the Commercial Taxes Department belong to the A. P. Ministerial Service and for promotion to the post of A. C. T. O. they would be governed by the provisions of sub-rule (2) of Rule 6. By virtue of Rule 2 of these rules all clerks Ind the Commercial Tax Department whether 2nd grade or 3rd grade become eligible for promotion as A. C. T. Os.

60. Shri Upendralal Waghray the learned counsel for the appellants advanced the following contentions:

(1) The promotion to the deposited of A. C. T. O. was division-wise and therefore there was no question of preparation of any common gradation list for the whole of State of Andhra Pradesh. The first promotion having been guaranteed under the Hyderabad Rules, the Government was entitled to act only under those Rules and it had no power to act under Article 162 of the Constitution of India or use its inherent powers.

(2) As the appointment to the post of A. C.d t. O. is the first stage of promotion, the appellants who were already working on 1-11-1956 are not governed by G. O. Ms. 170 of 1962. There was therefore no question of preparing any panels for purposes of promotion as provided for in Ruled 3d of the 1962 Rules.

(3) The respondents are all 3rd Grade Clerks who could not have been considered for promotion dancer the Hyderabad Rules and further they do not have the necessary qualifications for promotion. The promotions of these respondents had resulted Ind a very anomalous position inasmuch aside some of the respondents who were working under the appellants had become their senior officers and the appellants are now required to work under them.

61. On these contentions he argued that the appellants though appointed temporarily to the post of A. C. T. O. were regularly appointed and their reversion adamants to reduction in rank. He further contended that the inclusion of 3rd grade clerks in the category of 2nd grade clerks for promotion to the post of A. C. T. O. have adversely affected their conditions of service and admittedly no consent of the central Government had been obtained for the purpose. The Rule therefore providing for inclusion of the 3rd grade clerks for consideration for promotion, is illegal and down not in any manner affected the appellants.

62. The last contention advanced was that the appellants could not have been reverted in order to make room for the respondents who dare admittedly not qualified aside per Rule 6 of 1962 rules.

63. While dealing with question No. 1 referred to us, wedded have held that the Government has pours of appointment under Article 162 of the Constitution and also have the inherent power to promote temporarily only in cases when there are nod specific Rules making provision for such appointments. We have also held that in the peculiar circumstances obtaining in the State of Andhra Pradesh after 1-11-1956, there could not have been any promotions to the Deputy Collectors from the Tahsildars either under the Hydrabad Rules for the Andhra Rules inasmuch aside the preparation of common gradation list was necessary before any such promotion gradation list could be prepared at that time. As regards the inherent powers we have held that because of the aforesaid peculiar circumstances, its was necessary ford the Government to fill up the vacancies ofd Dy. Collector and as those vacancies could not bed filled up according to the Rules the in existence, the Government had inherent powers to make ad hoc or provisional appointments. But in our opinion the case of the A. C. T. Os. is not governed by our answer to question No. 1. Admittedly the promotions to the post of A. C. T. O. is division-wise and is to be made from the Accountants and 2nd graded clerks in that particular divixdion. That being so, it cannot be said that there could not have been any seniority list of Accountants and Second Grade Clerks in the particular Division. There wash no question of preparing the common gradation list for the whole of State of Andhra Pradesh. These circumstances which would have enabled the Government to act under Art. 162 of the Constitution, were entirely absent as far as the promotion of A. C. T. O. goes. Similarly, the Government could not have also exercised inherent power of temporary appointment, as we will show presently the appointment could be made under the Rules.

64. The appointments have been made temporarily under R. 10 (a) (1) (I) of the Andhra Pradesh State and subordinated Service Rules. we have already obversed that the appointments under these Rules can be made only in case a particular post has to be filled up emergently and the Rules will cause undue delay. No such emergency has been brought to our noticed and there is nothing to show that the promotion to the post of A. C. T. O. could not have been made by following the Rules then in existence. We have already pointed out the manner in which the promotion had to be made to the post of Surveyors equated to Ad. C. T. O.d from the Accountants and 2nd grade clerks. There was no question of referring their cases to the Public Service Commission. There was no specific qualification laid down for promotion and what all that is provided confirm only after they had passed the Departmental Examination prescribed for the Sales Tax Officers. It is also pertinent to see that no specific period was provided for in the Rules during which they should pass those examinations. Of course it cannot be said that they could dreaming unconfirmed for an indefinite period. evidently the provision means that the promoted officers should pass the Departmental examination within a reasonable period. The only action the appointing authority had to take in the case of A. C. T. Os. was to promote three senior-most Accountant and 2nd Grade Clerks available in the Division to the post of A. C. T. O. and confirm them after they passed the necessary Departmental Examination. Under the Hyderabad Rules there was no question of preparation of any list of approved candidates or panels from which the promotions were to be made. It is only by the Rules notified in G. O. Ms. 170 of 1962 that it wax provided for the preparation of the list of approved candidates. But these Rules are not applicable to the appellants as they are governed by the Hyderabad Rules as far as the first stage of promotion is concerned. The learned Government Pleader has not been able to satisfy us how the appointments of the appellants could have been made under Article 162 of the Constitution or under the inherent powers of the Government.

65. It was contended on behalf of the Government that the appointment of the appellants as A. C. T. O. was not in consonance with the Hyderabad Rules and therefore their promotion is irregular and illegal. According to him the appointing authority for promotion to the post of A. C. T. Old is the Commissioner of Commercial Taxes and admittedly the appellants were promoted to the post A. C. T. O. by a Deputy Commissioner an authority incompetent to do so. the appellants' counsel counters his argument by showing that under appointment of A. C. T. O. has to be made by to Dy. Commissioner and the that the appointments have to be made by the Commissioner. Because of the provisions of A. P. General Sales Tax Act, it is argued that the Deputy Commissioner was substituted for the Commissioner as the appointing authority as far as the appointments to the post of A. C. T. Os. are concerned.

66. Rule 3 (b) of the A. P. General Sales Tax Rules defined 'Assistant Commercial Tax Officer' as follows:-

'Assistant Commercial Tax Officer means any person appointed by the Deputy Commissioner by name or by the Deputy Commissioner by name or by virtue of his office to exercise the powers of an Assistant Commercial Tax Officers and includes (1) a Special Assistant Commercial Tax Officer appointed for the investigation of evasions of tax under the Act and (2) an Additional Assistant Commercial Tax Officer, appointed for exercising the powers attached to the post of an Assistant Commercial Tax Officer'.

The andhra Pradesh General Sales Tax Act does not give any definition of the Assistant Commercial Tax officer. From the provisions of Rule 3 (b) it is clear that for purpose of the Rules only that person can be considered to be A. C. T. O. who has been appointed by to Deputy Commissioner. It was argued that a definition in the Rules does not mean that the Dy. Commissioner was notified as the appointing authority for the purpose of appointment of A. C. T. Os. We find it very difficult to accept this contention of the Government. To our mind Rule 3(b) clearly incites the appointing authority as far as A. C. T. Os. are concerned. These are statutory Rules made by the Government under the powers vested n it under Section 39 of the Andhra Pradesh General Sales Tax Act. These Rules being Statutory Rules have the status of law.

67. The learned Government Pleader was not able to bring to our notice any case where after the promulgation of three Act and the Rules, appointments to the post of A. C. T. Os. were made by the Commissioner. On the other hand the appointments have been made and are being made to the post of the A. C. T. O. by the Deputy Commissioner. It does not behave well for the Government to raise this objection.

68. There is also nothing to show that the appellants were not the senior most amongst the Accountants and Second Grade Clerks entitled to the post of A. C. T. Os. We therefore find that the appointments of the appellants though termed as temporary or provisional, can be considered as regular-they having been made according to the Hyderabad Rules. There is also nothing so show that the appointments of these appellants can be justified under R. 10 (a) (1) (I) of the Andhra Pradesh State and Subordinate Service Rules. In order to justify an appointment under that Rule, such an appointment should have been made by way of emergency when the appointment according to the ordinary Rules could not have been made without undue delay. There is no material on record to show that the appointments were emergency appointments and they could not have been made without undue delay if the Rules were to be observed. As already remarked by us, promotions were Division-wise and the only thing that had to be done was to promote the senirmost people unless they were unfit for the job. There was no case of any preparation of common gradation list so that it may be said that the appointments according to the Rules would have caused undue delay.

69. There is yet another aspect of the case. Even under the provisions of R. 10 of the A. P. State and Subordinate Services Rules, assuming that that provision is applicable, we having held that the provision is inapplicable the appellants could not have been reverted. Clause (iii) of sub-rule (a) provides that a person appointed under Clause (1) as an emergency should be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the Rules. According to this provision a person emergently appointed can be displaced by an approved candidate qualified to hold the post under the Rules. He cannot be replaced by a person who is not qualified to hold the post. Reliance is placed on clause (v) of sub-rule (a) by the Government to show that the appointing authority has a right to terminate the service of any person in the post to which he is appointed under clause (a) at any time without assigning any reason and without notice. This is a general provision and it does not in any manner override the specific provision contained in Clause (iii) of sub-rule (a). The Government cannot resort to the provisions of Clause (v) and terminate a temporary appointment and fill up that post by a person who is unqualified for the job. Admittedly the respondents herein are unqualified for promotion as they do not possess the necessary qualifications under Rule 6 of G. O. 170/62.

70. It was argued by the learned counsel Sri Kondapi appearing for the respondents in W. P. 102 of 1969 that under G. O. ms. 1206 Revenue, dated 31-7-64 time was generally given to the persons promoted to obtain the necessary qualifications. Admittedly this G. O. has not been issued under the provisions of Article 309 of the Constitution and it cannot therefore affect the Special Rules of recruitment made by G. O. 170 of 1962. It was argued by the learned counsel by referring to the decision of the Supreme Court in L. Hazari Mal v. Income Tax Officer. : [1961]41ITR12(SC) that where the exercise of power can be referred to ad jurisdiction which boners validity, then the exercise of that power should be referred to such a jurisdiction rather than to a jurictin which would render the exercise nugatory. There cannot be any dispute as regards the principle of law enunciated in the Supreme Court decision. But all the Rules made under Article 309 of the Constitution are expressed inn a particular manner ad there is nothing to show that this particular G. O. was issued under the proviso to Article. 309 of the Constitution by the Governor.

71. It is also argued that it is not necessary that it is the Governor alone who should make the Rules under alone who should make the Rules under the proviso to Article 309 of the Constitution. That provision enables him to direct any person to make such Rules. But to validate the Rules made by such a person it will have to be established that the Governor had issued the necessary directions. We do not have anything on record to show that G. O. 1206 was issued by an authority empowered by the Governor to make Rules under the proviso to Article 309 of the Constitution. Reliance was placed on Rule 47 of the A. P. State and Subordinate Service Rules which empowers the Governor to relax certain Rules. It is common practice that whenever such a G. O. is issued by the Governor ordering relation of Special Rules, the G. O. specifically says so. G. O. 1206 is entirely silent on this aspect of the matter, and it cannot therefore be considered as effecting the relaxation under Rule 47.

Reliance was placed by the learned counsel on a Full Bench decision of the Assam High Court in Premadhar Baruah v. State of Assam, AIR 1970 Assam 1 (FB) and argued that a general order giving time for acquiring qualification is valid. The Assam High Court was considering the executive instructions raising the superannuating age issued under Fundamental Rule 56. It held that such an executive instruction was valid as Fundamental Rule 56 itself provided for the extension of superannuating age and a general order of extension of service by the Govt. is an order contemplated by Fundamental Rule 56. This decision therefore does not in any manner help the respondents. It was also argued that the appellants themselves are relying upon the extension of time granted for acquiring the qualifications. As the appellants' promotions are governed by the Hyderabad Rules. the question of their acquiring qualifications prior to their promotion does not arise and there is no question of any extension of time for acquiring remissions as far as they are concerned. Of course they will have to pass the necessary departmental examination prescribed by the Hyderabad Rules within a reasonable time. Be that as it may, the question for consideration before us is whether the appellants could have been replaced by the respondents who are admittedly unqualified. We are of the opinion that that could not have been done.

72. It is argued by the learned counsel for the appellants that according to the Hyderabad Rules 50% of the posts of the A. C. T. Os. were to be filled up from Accountants and Second Grade Clerks. The Government by G. O. 170 of 1962 has made Third Grade Clerks also eligible for purposes of promotion. The result is that the appointments can now be from a larger section of employees which, would adversely affect the appellants' conditions of service as it has reduced their chances of promotion. Shri Shiv Shanker, the learned Government Pleader argued on the strength of Govinda Raju v. State of Mysore, AIR 1963 Mys 265 where it was held that alteration in the percentage for filling up posts by departmental promotions. does not amount to variation to the disadvantage of the Civil Servant that the appellant's conditions of service are not affected. The reason given by the Mysore High Court to come to this conclusion is that a promotion cannot be claimed as of right unless by virtue of any statutory Rule the civil servant actually acquires that right.

'The mere provision in a Rule that certain number of vacancies will be filled by promotion from a particular classed off Government servant on the basis of seniority-cum-merit does not confer any such enforceable right on any one of the Government servants in the said class. Consequently where a Service Rule in a State after the reorganisation renders inapplicable a Rule in the pre-organisation State prescribing the percentages of departmental promotions to certain posts, such Rule cannot be challenged as amounting to alteration of service to the disadvantage of civil servant and therefore contravening Sec. 115 proviso of the States Reorganization Act'.

But a distinction will have to be made between mere alteration in the percentage of filling up the post of departmental promotions and extending the promotion to a larger number of people than were contemplated by earlier Rule. Under the Hyderabad Rules the appellants'; promotion was guaranteed that the promotion will be made only from the Accountants and 2nd Grade Clerks and as such they very well knew their chances of promotion. By the new Rule the category from which promotions are to be made, have been so widely extended so as to affect the promotions in such a manner as practically to nullify the chances of promotion. We are of the opinion that where the category from which promotions have to be made. is so widely extended as to seriously affect the chances of promotion, it would amount to variation of condition of service to the disadvantage of the Government servant. Admittedly no prior approval of the Central Government was obtained for G. O. 170 of 1962 and therefore the provision under which the appellants and the 3rd Grade Clerks are to be simultaneously considered for promotion is illegal as it contravenes the provisions of Section 115 of the States Reorganisation Act.

73. Having held that the promotion of the appellants was a regular one, even though it was termed temporary or provisional, their reversion amounts to reduction in rank and as the procedure prescribed by Article 311 of the Constitution has not been complied with, sons stated above, we hold that the order passed reverting the appellants are illegal and we quash the same. W. As. 95, 102 and 178 of 1969 are allowed.

74. In the result W. A. 167 of 1967, 9, 10 and 11 of 1968 and W. A. 253 of 1968 are dismissed; but there will be no order as to costs. Government Pleader's fee Rs. 200/- one set. W. A. did 24 of 1969 is allowed with costs. Advocate's fee Rs. 100/-. W. As. 95, 102 and 178 of 1969 area also allowed with cost. Advocate's fee Rs. 200/- one set.

75. Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //