Holding

The amendment of 28‑April‑1980 applies only to vacancies arising after that date and does not affect vacancies that arose earlier.

Summary

The State of Andhra Pradesh sought to fill 51 Assistant Engineer vacancies that had arisen in 1978‑79 by direct recruitment under the Andhra Pradesh Panchayat Raj Engineering Service (Special) Rules, 1963. An amendment to the Rules on 28 April 1980 changed the recruitment formula to 37½% of substantive vacancies "arising" to be filled by direct recruitment, leading officers to contend that the amendment applied to the earlier vacancies, limiting direct recruitment to only eight posts. The State argued the amendment was prospective and did not affect vacancies that existed before its date. The Andhra Pradesh Administrative Tribunal held the amendment applied to all vacancies and barred recruitment against temporary posts. The Supreme Court set aside that decision, holding that the word "arising" confines the amendment’s operation to vacancies created after 28‑April‑1980 and therefore it does not affect the 51 vacancies that arose earlier. Consequently, the State could lawfully recruit for those vacancies, and the appeal was dismissed with the case remanded to the Tribunal for further consideration.

Issues considered

Whether the amendment to the Andhra Pradesh Panchayat Raj Engineering Service (Special) Rules dated 28‑April‑1980 applies to vacancies that arose before that date.
Whether the amendment restricts direct recruitment to only substantive vacancies arising after its commencement.

Legislation cited

Subjects

direct recruitmenttemporary vacanciessubstantive vacanciesprospective amendmentinterpretation of "arising"service rulesAndhra Pradesh

Judgment

P. GANESHWAR RAO & ORS.
A
v.
STATE OF ANDHRA PRADESH & ORS.

SEPTEMBER 5, 1988

[E.S. VENKATARAMIAH AND N.D. OJHA, JJ.] B

Andhra Pradesh Panchayat Raj Engineering Service (Special)
Rules, 1963-Recruitment to . post of Assistant Engineers-State
Government Notification dated April 28, 198{}-Amendment of the
rule-Whether prospective-Held not applicable to vacancies which
had arisen before the said date.
c
The Public Service Commission invited applications for direct
recruitment against 51 vacancies of Assistant Engineers in the Andhra
Pradesh Panchayat Raj E!'gineering Service. The number of vacancies
was arrived at under the provisions of.the Andhra Pradesh Panchayat
Raj Engineering Service (Special) Rules 1963, on the basis of the total D
number of substantive as well as temporary vacancies which had arisen
in the years 1978 and 1979. Explanation (c) in the Special Rules relating
to the method of recruitment of Assistant Engineers, prior to its atitend-
ment on 28.4.1980, provided that "out of every 8 vacancies among
Assistant Engineers, the 2nd, 5th and 8th vacancies shall be filled in by
direct recruitment .... ". The amended Explanation (c) provided that E
"37-1/2 of the substantive vacancies arising in the category of Assistant
Engineers shall be filled by direct recruitment .... "

Some of the officers who were working as In-charge Assistant
Engineers or Junior Engineers in the Panchayat Raj Department
Engineering Service made representations to the State Government F
raisilig objection ttl the number of vacancies notified for direct recruit~
ment, contending that the 51 vacancies notified could not be filled up
any longer by direct recruitment as, according to them, after the
\ amendment of the Rules on 28.4.1980, 37-1/2 per cent of only substan-
tive vacancies could be filled up by direct recruitment, while the vacan-
cies 'notified had taken into consideration temporary vacancies also. G
When their representation failed to elicit any positive reply from the
State Government, they instituted a petition before the Andhra Pradesh
Administrative Tribunal.

Before the Tribunal the State Government pleaded that the
• amendment made on 28'.4.1980 to the- Special Rufos was only prospec- H
805
I

806 SUPREME COURT REPORTS I1988] Supp. 2 S.C.R.
A live in effect and had no effect on the vacancies whicli had arisen prior
to that date. The Tribunal rejected .the contention of the State
Government.

Setting aside the judgment of the Tribunal and remanding the case
to it again, this Court,
B
HELD: (1) It is clear from the Special Rules as they were in force
prior to the amendment on 28.4.1980 that it was open to the State
Government to till 37-1/2 per cent of the vacancies (both substantive
and temporary) in the cadre of Assistant Engineers by direct recruit-
ment. [SUF]
c
(2) The crucial words in the Explanation which was introduced
by way of amendment in the Special Rules on 28.4.1980 were "37-1/2
per cent of the substantive vacancies arising in the category of Assistant
Engineers shall be tilled by direct recmitment." The introduction of the
word 'arising' in the above clause made it applicable only to those
D vacancies which came into existence subsequent to the date of
amendment, [811H; 812A-B]

'(3) This Court does not !ind any indication in the amendment
that was made on 28.4.1980 that it would be applicable to the vacancies
which had arisen prior to the date of the amendment even by necessary
E implication. [812E-F]

(4) The amendment made on 28.4.1980 therefore does not apply
to the vacancies which had arisen prior to the date of the amend-
ment. [813F]
F Eramma v. Verrupanna & Ors., [1966] 2 SCR 626 and Y. V.
Rangaiah and Others v. J. Sreenivasa Rao & Ors., [1983] 3 SCC 264,
referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2069
of 1982.
G
From the Judgment and Order dated 23.4.1982 of the Andhra
Pradesh Administration Tribunal in Representation Petition No. 508
of 1982.

Mrs . C. Markandeya for the Appellants.
H
P.G. RAO v. STATE OF A.P. [VENKATARAMIAH, J.] 807

B. Kanta Rao and G.N. Rao for the Respondents.
A
The Judgment of the Court was delivered by

VENKATARAMIAH, J. This appeal by special leave is filed
against the Judgment dated· 23.4.1982 of the Andhra Pradesh
Administrative Tribunal in Representation Petition No. 508 of 1982 issuing a B
direction to the State Government to refrain from making any direct
recruitment against temporary vacancies -in the cadre of Assistant
Engineers under the Andhra Pradesh Panchayat Raj Engineering
Service (Special) Rules (hereinafter referred to as 'the Special Rules')
as amended by G .0. Ms. No. 227 dated 28.4.1980 and issuing certain
other ancillary directions. The facts of the case are as follows.
c
Recruitment to the Andhra Pradesh State and Subordinate
Services was governed by the Andhra Pradesh State and Subordinate
Services Rules, 1962 (hereinafter referred to as 'the General Rules').
Rule 6 of the General Rules which dealt with the method of recruit-
ment provided that where the normal method of recruitment to any D
service, class or category was neither solely by direct recruitment nor
solely by transfer but was both by direct recruitment and by transfer, the .
proportion or order in which the special rules concerned may require
vacancies to be filled by persons recruited direct or by those recruited
by transfer shall be applicable only to substantive vacancies in the
permanent cadre. In those Rules the expression 'special rules' meant E
the rules in Part III of the General Rules applicable to each service or
class of service and included ad hoc rules applicable to temporary
posts. On 23.3.1963 the Governor of Andhra Pradesh promulgated in
exercise of his ·powers conferred by proviso to Article 309 of the Con-
stitution of India the Special Rules providing for the constitution of
and the method of recruitment to the Andhra Pradesh Panchayati Raj F
Engineering Service and the Special Rules were given retrospective
effect from November 1, 1960. Under the Special-Rules the Andhra
Pradesh Panchayati Raj Engineering Service was to consist of four
categories of officers, namely, Chief Engineer, Superintending
Engineer, Executive Engineer and Assistant Engineer. The post of
' Assistant Engineer was required to be filled ,up as follows: G

"4. Assistant (1) By direct recruitment,
Engineer or
(2) By transfer from among
(a) Junior Engineer; or
H
808 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A (b) Supervisors of the Andhra
Pradesh Panchayati Raj
Engineering Subordinate
Service .

. . . . . . . . . . . . . . . . . . .. . . . . . . . . . .·.· .................... .
B
(c) Out of every 8 vacancies among Assistant
Engineers, 3 shall be filled up or reserved to be filled up·by
direct recruits on the results of the competitive examina-
tions and the remaining 5 by transferees.

Note: Rules 6, 8(a)(i) and 29(b) of the General Rules
c for the Andhra Pradesh State and Subordinate Services
shall not apply to the appointment of Assistant Engineers
by direct recruitment in the Andhra Pradesh Panchayati
Raj Engineering Service.

D

By Notification bearing G.O.Ms. No. 125 dated 28.5.1973
Explanation (c) in the Special Rules relating to the method of recruit-
ment of Assistant Engineers was substituted by a new explanation
which read as follows:
E
"(c) Out of every 8 vacancies among Assistant
Engineers, the 2nd, 5th and 8th vacancies shall be filled in
by direct recruits on the results of the competitive examina-
tion and the rest of the vacancies by transfer."

F Thus by the year 1978 the posts of Assistant Engineers (now
designated as Deputy Executive Engineers) were to be filled up either
by direct recruitment or by transfer from among Junior Engineers or
Supervisors or Draftsmen Ist Grade of Andhra Pradesh Panchayati
Raj Subordinate Service and if no qualified or suitable candidates
were available for recruitment as stated above by transfer from any
G other service or on tenure basis. Out of every eight vacancies in posts
of Assistant Engineers the 2nd, 5th and 8th vacancy had to be filled in
by direct recruits on the result of the competitive examination and the
rest of the vacancies by transfer. The Special Rules further provided
that rules 6, 8(a)(i) and 29(b) of the General Rules would not apply to
the appointment of Assistant Engineers by direct recruitment in the
H Andhra Pradesh Panchayati Raj Engineering Service and thereby it
P.G. RAO v. STATE OF A.P. [VENKATARAMlAH, J.] 809

became permissible to the State Government to take into considera-
A
tion the number of temporary vacancies also in addition to the sub-
stantive vacancies in aqy year for purposes of recruitment. Three ou(
of eight vacancies (which included both substantive and temporary
vacancies) could be filled up by direct recruitment. In other words
37-1/2 per cent of the total number of vacancies (both substantive and
temporary vacancies) in the cadre of Assistant Engineers could be B
filled by direct recruitment. ·The Chief Engineer of the Andhra
Pradesh Panchayati Raj Engineering Service reported to the State
Government in his letter dated 25. 11. 1979 that the total number of
posts of Assistant Engineers (Permanent and Temporary) excluding
the cyclone posts available were 203 by the end of May, 1979. Out of
the said 203 posts the number of posts available for direct recruitment
was 75 (203 x 3/8) and that out of them 38 vacancies of Assistant c
Engineers had either been filled in by direct recruitment or notified to
the Public Service Commission for selection and that the balance
number of vacancies available for direct recruitment were 37 for the
years 1978 and 1979. Out of these 37 remaining vacancies, as 23 posts
had been filled by Assistant Engineers selected in direct recruitment, D
an estimate of 15 vacancies of Assistant Engineers was furnished to the
Public Service Commission on 3.6.1978. For the recruitment years
1978 and 1979 the estimate of vacancies were due with the Public
Service Commission in the first week of May, 1978 and of May, 1979.
In accordance with the above rule then in force the State Government
took the decision in February, 1980 to notify 18 vacancies for the E
recruitment year 1978 and 18 vacancies for the recruitment year 1979.
The Chief Engineer was informed of the decision of the State Govern-
ment to recruit the above said 18 plus 18, j.e., 36 vacancies in addition
to the 15 vacancies already notified to the Public Service Commission
and was asked to sent the zone-wise break up of vacancies keeping in .
view the rules of special repre~entation for Scheduled Castes, F
Scheduled Tribes, Backward Classes etc. After the receipt of the pro-
posals from the Chief Engineer on 6.8.1981 the estimate of vacancies
for the years 1978 and. 1979 was also sent to the Public Service
Commission for recruitment of Assistant Engineers. In the meanwhile
the Public Service Commission had published an advertisem!'llt in or
abo.ut September, 1980 inviting applications for recruitment of G
Assistant Engineers directly specifying 8.1.1981 as the last date for
submitting the applications. In that notification the Public Service
Commission had intimated that 15 vacancies were available for recruit-
ment as pet the first communication received by it from the State
Government. When the process of recruitment was in progress some
of the offic~, who were working as In-charge Assistant Engineers or H
810 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A Junior Ji;ngineers in the Panchayati Raj Department Engineering
Service made representations to the State Government raising objec-
tion !ff the· proposed direct recruitment of 51 Assistant Engineers on
the basis of the total number of substantive and temporary vacancies
which had arisen in the years 1978 and 1979 relying upon an amend-
ment which had been made to the Special Rules by G.O.Ms. No. 227
B dated 28.4.1980 by which Explanation (c) and the proviso thereunder
in the Special Rules had been substituted by the following explanation
and proviso:

"37-1/2 of the substatitive vacancies arising in the
category of Assistant Engineers shall be filled by direct
recruitment on the results of the competitive examination
c and the remaining 62, 1/2 by promotion or transfer as indi-
cated under explanation (d) below ..... "

Their contention was that the 51 vacancies which had been
notified to the Public Service Commission for direct recruitment could
0 not be filled up any longer by direct recruitment as according to them
after the amendment of the Rules on 28.4.1980 only 37-1/2 per cent of
the substantive vacancies could be filled up by direct recruitment.
They contended that the 51 vacancies which had been notified to the
Public Service Commission had been arrived at by taking into consi-
deration temporary vacancies also and that was not permissible after
E the amendment. They further urged that under the Special Rules, as
amended on 28.4.1980, only 8 vacancies could be filled up by direct
r~cruitment. When the above representation made by them did not
elicit any positive reply from the State Government, they instituted
Representation Petition No. 508 of 1982 on the file of the Andhra
Pradesh Administrative Tribunal for injunction restraining the State
p Government and the Public Service Commission from recruiting 51
persons as direct recruits to the cadre of Assistant Engineers. 'file
petition was opposed by the State Government. It pleaded that the
amendment made on 28.4.1980 to the Special Rules was only prospec-
tive in effect and had no effect on the vacancies which had arisen prior
to the date on which the amendment was made and, therefore, it was
a open to the State Government to fill by direct recruitment 37-1/2 per
cent of the total number of vacancies (substantive as well as tem-
porary) in the cadre of Assistant Engineers which had arisen before
the amendment. The Tribunal rejected\ the contention of the State
G()vernment and held that it was not perrilissible for the State Govern-
ment -to make recruitment to the 51 vacancies afterthe Special Rules '
I-! were amended on 28.4.1980 irrespective of the fact that the vacancies
P.G. RAO v. STATE OF A.P. [VENKATARAMIAH, J.] 811

in question had arisen prior to the date of the amendment. Accord- A
ingly the Tribunal directed the State Government .and the Public
Service Commission to refrain from making any direct recruitment
against the temporary vacancies in the Andhra Pradesh Panchayati
Raj Engineering Service contrary to the Special Rules as they stood
amended from 28.4.1980. Aggrieved by the decision of the Tribunal
some of the candidates, who had been selected by the Public Service B
Commission as Assistant Engineers, filed a special leave petition in
this Court under Article 136 of the Constitution of India requesting
this Court to grant special leave to appeal against the judgment of the
Tribunal. On 4.6.1982 this Court granted special leave to appeal
against the judgment of t.he Tribunal and also stayed the operation of
the judgment of the Tribunal. Thereafter the State Government issued
a notification bearing G.O.Ms. No. 525 dated 30.10.1982 appointing C
t.he appellants, respondent No. 4 and 48 others as Assistant Engineers
(now called Deputy Executive Engineers) on temporary basis under
rule lO(a)(i)(l) of the General Rules. 44 of the 51 candidates so
appointed joined service as Deputy Executive Engineers. All those
who joined the service accordingly have continued to be in the service D
of the State of Andhra Pradesh till now.

It is not necessary for purposes of this judgment to decide all the
contentions which had been raised by the petitioners who had filed the
representation petition before the Andhra Prai!esh Administrative
Tribunal since the Tribunal has allowed the petition only on one E
ground, namely, that the recruitment in question was governed by the
Special Rules as amended on 28.4.1980 and not by the rules which
were in force when the vacancies in question arose.

It is clear from the Special Rules as they were in force prior to
the amendment on 28.4.1980 that it was open to the State Government F
to fill 37-1/2 ·per cent of the vacancies (both substantive and tem-
porary) in the cadre of Assistant Engineers by direct recruitment. It is
also not in dispute that during the years 1978 and 1979 the position of
the vacancies was such that it was permissible for the State Govern-
ment to appoint 51 Assistant Engineers by direct recruitment. The
only question which has now to be considered is whether the amend- G
ment made on 28.4.1980 to the Special Rules applied only to the
vacancies that arose after the date on which the amendment came into
force or whether it applied to the vacancies which had arisen before
• the said date also. The crucial words in the Explanation which was
introduced by way of amendment in the Special Rules on 28.4.1980
were "37-1/2 per cent of the substantive vacancies arising in the cat~- H
812 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

gory of Assistant Engineers shall be filled by the direct recruitment".
A If the above clause haci read "37-1/2 per cent of the substantive vacan-
cies in the category of Assistant Engineers shall be filled by the direct
recruitment" perhaps there would not have been much room for dis-
cussion. The said clause then would have applied even to the vacancies
which had arisen prior to the date of the amendment but which had not
B been filled up before that date. We feel that there is much force in the
submission made on behalf of the appellants and the State Govern-
ment that the introduction of the word 'arising' in the above clause
made it applicable only to those vacancies which came into existence
subsequent to the date of amendment.

In Eramma v. Verrupanna & Ors., [1966] 2 S.C.R. 626 the words
c "the property of a male Hindu dying intestate shall devolve according
to the provisions of this Chapter" in section 8 of the Hindu Succession
Act, 1956 came up for consideration. In that case this Court held that
the words "the property of a male Hindu dying intestate shall devolve"
occurring in section 8 made it very clear that the property whose
D devolution was provided {or by that section must be the property of a
person who had died after the commencement of the Hindu Succession
Act and it could not be the property which belonged to a Hindu male
who had died before the said Act came into force. The effect of the use
of the word 'arising' in the Special Rules qualifying the word 'vacan-
cies' is also the same. The clause which was introduced in the Special
E Rules by the amendment made on 28.4.1980 cannot, therefore, be
interpreted as having any effect on the vacancies which had arisen
prior to the date of the amendment. We do not find any indication in
the amendment that was made on 28.4.1980 that it would be applicable
to the vacancies which had arisen prior to the date of the amendment
even by necessary implication. In the instant case the State Govern-
F ment had taken the decision even before the amendment came into
force to fill up the vacancies by direct recruitment according to the law
prevailing then. Had it been the intention of the State Government,
while promulgating the amendment that the amendment should be
applicable to the vacancies which had arisen prior to the date of the
amendment simultaneously the State Government would have addres-
G sed a letter to the Public Service Commission to make recruitment in
accordance with the Special Rules as amended on 28.4.1980. No such
action was taken by the State Government in this case.

We may at this stage refer to another decision of this Court in •
Y. V. Rangaiah and Others etc. v. J. Sreenivasa Rao and Others, [ 1983 I
H 3 S.C.C. 264 in which in a similar situation this Court has observed in
Paragraph 9 at page 289 thus:
P.G. RAO v. STATE OF A.P. [VENKATARAMIAH, J.[ 813

"The vacancies which occurred prior to the amended A
rules would be governed by the old rules and not by the
amended rules. It is admitted by counsel for both the
parties ·that henceforth promotion to the post of Sub-
Registrar Grade II will be according to the new rules on the
zonal basis and not on the State-wide basis and, therefore,
there was no question of challenging the new rules. But the B
question is of filling the vacancies that occurred prior to ihe
amended rules. We have· not the slightest doubt that the
posts which fell vacant prior to the amended rules would be
governed by the old rules and not by the new rules."

The facts of the case before us are in no way different from the C
facts involved in the above decision.

In view of the foregoing we are of the view that the observations
made by the Tribunal i6 the following effect, namely:
,
"In this case the •rules for recruitment have been D
changed on 28.4.1980. Hence, prima facie it would not be
legal to rnake direct recruitment against temporary vacan-
cies, even if the vacancies were at ·an earlier date ear-
marked for direct recruits .. ·......... ·... In these circum-
stances, there is, in my opinion, no scope for direct recruit-
ment against temporary vacancies after 28.4.1980, i.e., the E
date on which the rules were amended as stated above."

are unsustainable. We hold that the amendment made on 28.4.1980
does not apply to the vacancies which had arisen prior to the date of
the ·amendment.
F
We accordingly set aside the judgment of the Tribunal and
remand the case to it again to decide in the light of the above ol:iserva-
tions the other contentions which had been raised by the persons who
had filed the Representation Petition before the Tribunal and to dis-
pose of the case on the basis of the findings to be recorded by it on
those contentions. G

The appeal is accordingly disposed of. There is no order as to
costs.

R.S.S. Appea!"disposed of.
H