PVT PHILIPversusP. NARASIMHA REDDY AND ORS.

A                                 P.V.T. ;>H[L[P
                                         v.
                     P. NARASIMHA REDDY AND ORS.

                                  JULY 13, 1993

B                 [P.B. SAWANT AND DR. A.S. ANAND, JJ.]

          A.P. State and Subordinate Services Rules :

          Rule JO(a){l)(i), 23(a) and 47-Regularisation-Appellant appointed
C as Temporary lailor-Further appointed as District Probation Of-
    ficer-Stipulation that he may be transferred as Jailor in case of neces-
    siry-Retransferred and temporarily appointed as Jailo,-Rules relaxed in
    favour of appellant-Services regularised from the date of initial appoint-
    ment-Validity of

D          The appellant was an Ex-Air Force Officer and was a graduate in
    Commerce and Law. He was appointed as Jailor temporarily under Rule
    10(a) (l)(i) of the Andhra Pradesh State and Snbordinate Services Rules
    (hereinafter referred to as the 'Rules'). On the closure of the temporary
    jail, be was appointed as District Probation Officer (D.P.O) Grade II. It
E   was, however, made clear in the said appointment letter that whenever
    occasion demanded, the appellant was likely to be posted as Welfare
    Officer/Jailor/Brotber and Deputy Superintendent of certified schools.

        After a few months the appellant was transferred and posted tem-
  porarily as Jailor. In the meanwhile, one Jailor, reverted as Deputy Jailor
F made a representation to the Government against his reversion and res-
  toration of his seniority in the cadre of Jailors over two other Jailors. The
  Government rejected the said representation. However, on appeal, the
  Government reconsidered and set aside the order of reversion and res-
  tored him to the post of the Jailor. As a result of this, the appellant was
G again sent back as the D.P.0 Grade II.

       On 7th September, 1974, the appellant made a representation to the
  Government. The Government advised the I.G. (Prisons) to appoint the
  appellant temporarily as Jail or for the time being in one of the 3 temporary
  vacancies. The I.G. (Prisons) treate.d the appellant as a leave-reserve
H D.P.O. Grade II on other duty at District Jail, and appointed him to the
                                        100
                          PVT. PHILIP '" P.N. REDDY                         101

    post of Jailor temporarily subject to the condition that his services were     A
    liable to be terminated at any time wfrhout notice and without assigning
r   any reasons. He was appointed in the vacancy caused due to the retirement
    of a Jailor.

          By his order of lst September, 1976, the Governor in exercise of his
    powers under Rule 47 of the State Sub-ordinate Services Rules, relaxed         B
    Rule 6(b) of the said Rules and rule 9 of the A.P. Jail Subordinate Services
    Rules in favour of the appellant for his regular appointment as a Jailor.
    The Government made it clear that the regularisation of the appellant as
j
    a Jailor was w.e.f. 27th June, 1969 when the order posting him as a Jailor
    was passed.                                                                    C
           The appellant was temporarily promoted as Deputy Superintendent
    of Jails. On the recommendation of the State Public Service Commission,
    the State Government regularised the services of the appellant as Deputy
    Superintendent of Jails w.e.f. 20th August, 1977, and further declared that
    the appellant had completed his probation as Deputy Superintendent of          D
    Jails on 19th August, 1978.

           The Government further temporarily promoted the appellant to the
     post of the Superintendent of Jails alongwith S other Deputy Superinten-
    dents of Jails including respondents 1 to 3. In the seniority list, the
                                                                                   E
    appellant was shown senior to respondents 1 to 3 both in the post of the
    Deputy Superintendents as well as in the post of the Sup•rintendent of
    Jails. Against the seniority given to the appellant over them, respondents
    1 to 3 made representations to the Government, which were rejected.
    Respondents 1 to 3 filed a petition before Administrative Tribunal and the
    Tribunal remanded the proceedings to the Government for reconsidera-           F
    tion pointing out that the Government order did not mention the date from
    which the relaxation was given. The Government on reconsideration of all
    the facts and circumstances justified the regularisation of the services of
    the appellant and clarified that the regu!arisation would be effective from
    27.6.1969, the date on which he was posted as Jailor. Against this order, G
    an appeal was preferred to the Tribunal and it was dismissed. Hence this
    appeal.

         Allowing the appeal, this Court

         HELD : 1.1 The appellant's service record shows that in fact he bad H
    102                   SUPREME COURT REPORTS (1993[ SUPP. 1 S.C.R.

A served as a Jailor for more than 5 years and had Fulfilled the qualiFying
    period or service under the rule for promotion to the post or the Deputy
    Superintendent or Jails. The relevant rule does not in terms require that
    the service as a Jailor should be a regular service. It merly requires
    experience as a Jailor for a minimum period or five years. [111-F]

B        1.2. There is nothing in Rule 23(a) or the Andhra Pradesh State and
  Subordinate Services Rules which prohibits regularisation from the ear-
  liest date of the appointment to the post notwithstanding any intervening
  developments. Further, iF in the peculiar facts or the present case, the
  Government thought it fit to give the benefit or the said Rule to the
C appellant w.e.r. 27th June, 1969 when he was first appointed to the post of
  a Jailor, the Government's decision could hardly be faulted. But more
  important in this connecton are the provisions or rule 47 or the Rules
  which give wide powers to the Governor to deal with the case of any person
  in such manner as may appear to him to be just and equitable. There is
D no dispute that the Governor used his powers under the said Rule 47 in
  the present case when he issued the order on 1st September, 1976 by
  relaxing Rule 6(b) of the general rules and Rule 9 of the A.P. State Jail
  Subordinate Services Rules for the regular appointment of the appellant
  with effect from his initial appointment as a Jailor on 27th June, 1969 as
  clarified by his subsequent order dated 23rd December, 1987. [112-D-G]
E
          1.3. The instant case was a proper case for tl1e Gove1-11or to exercise
    his powers under Rule 47. Both equity and justice lay in favour of the
    appellant. His superior, viz., the I.G. (Prisons) and the Government all
    along wanted to treat him as a Jailor. In Fact, he served as a Jailor for
F   more than the requisite qualifying period with merit and distinction and
    to the great satisfaction on the authorities. He is an Ex-Air Force Officer
    and he had put in not less than 10 years and 10 months service as such.
    He was fully qualified to hold the post or the Jailor. On the closure or the
    Jailor he was transferred or appointed as D.P.O., which carried a higher
    salary than that of the Jailor. The anxiety shown by the authorities to
G utilise his services as a Jailor was so much that even while appointing him
    as the D.P.O., since no post or a Jailor_was available at that time, they
    added a special clause in the order or appointment making his services
    transferable as a Jailor whenever needed, notwithstanding the fact that the
    post of the Jail or and that of the D.P.O. were not transferable. His services
H   as a Jailor were never terminated even when he was appointed as a D.P.O.
              P.V.T. PHILIP v. P.N.REDDY [SAWANT,J.]                  103

Within about 8 months of his appointment as a D.P.O., he was taken back A
as a Jailor, and but fur the small gap necessitated by the non- availability
of the post of the Jailor, he continued to serve as a Jailor throughout. As
against this, respondents 1 to 3 came in the service as direct recruits for
the first time as Deputy Superintendents of Jails in 1979 when by that time
the appellant had completed his service as the Deputy Superintendent of B
jails for no less than two years. In the circumstances the orders passed by
the Governor on 1st September, 1976 and 23rd December, 1987 in exercise
of his powers under Rule 47 have cured whatever defects might have been
there earlier, in the matter of the regular appointment of the appellant as
a Jailor. Thus the appellant shall rank senior to respondents 1 to 3 both
as Deputy Superintendent of Jails and as Superintendent of Jails.            C
                                                        (113-G-H; 114-A-E)
       Rabi11dra Nath v. Union of India, AIR (1979) SC 470; S.S. Megha v.
U11io11 of India, AIR (1981) S.C. 1485; Govt. of A11dhra Pradesh & 01'. v.
Sri D. Ja11ardhana Rao AndAnr., (1977) 1 SCR 702 andR.P. Khanna & Ors.
v. SA.F. Abbas & 01'., (1972) 3 SCR 548, relied on.                        D
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3202-04
of 1993.

    From the Judgment and Order dated 1.9.92 of the Andhra Pradesh
Administrative Tribunal in 0.A.Nos.10217 & 10219 of 1990.                   E
      K.K. Venugopal, V.A. Bobde, K.V. Viswanathan and K.R. Nambiar
for the Appellant.

      K. Madhava Reddy, Vimal Dav, B. Rajeshwar Rao and G. Prabhakar
for the Respondents.                                                         F
      The Judgment of the Court was delivered by

      SAWANT, J. Leave granted.

      Although the facts are many, the only question involved in the G
present case is whether the appellant is entitled to the benefit of bis service
as Jailor from 26/27th June, 1969 to 30th September, 1969 as a qualifying
period of service for being appointed to the post of the Deputy Superin-
tendent of Jails on 30th July, 1977. The said service has also a bearing on
his seniority as a Deputy Superintendent of Jails over respondents 1 to 3
who were directly appointed as Deputy Superintendent of Jails on 25th H
    104                   SUPREME COURT REPORTS [1993) SUPP. 1 S.C.R.

A September, 1979 and completed their probation in 1981.

        The admitted facts are that the appellant is an Ex-Air Force officer
  and possesses a Commerce and a Law Degree. By the order of 24th June,
  1969, he was appointed as Jailor in the scale of Rs. 180-375 temporarily
B under Rule lO(a)(l)(i) of the Andhra Pradesh State and Subordinate
  Service Rules (hereinafter referred to as the 'Rules') and he assumed office
  on 26th June, 1969 as Jailor at Camp M Jail, Yrragadda, as is evidenced
  by the order of June 27, 1969. On the date he assumed office, the tem-
  porary Jail at Yrragadda was in existence and it was closed only w.e.f. 9th
  September, 1969 as stated in the order of the Inspector General of Prisons
C dated 18th September, 1969.


          On 6th August, 1969 the I.G. (Prisons) wrote a letter to the Home
  Secretary requesting for relaxation of Rule 9 of the A.P. Jail Subordinate
D Services· Rules which required training for a period of 9 months for a direct
  recruit to the post of the Jailor. In this letter, the LG. (Prisons) pointed
  out that the post of the Jailor was sanctioned temporarily to man the Camp
  .Tail in question where the appellant was posted. There was a need of
  persons who could maintain discipline in jails and such persons could be
  available only from the military services. Instead of , therefore, recruiting
E fresh hands and placing them under training, in view of the urgency, he
  had directly appointed, through the Employment Exchange, the appellant
  who had the requisite educational qualifications, was within the, prescribed
  age limit and who had also worked as a non-commissioned officer in the
  Indian Air Force for 10 years and 10 months. He was directly appointed
F to the post without imparting training as it was considered unnecessary. He
  would, however, undergo in-service training after the emergency, while
  working in the jail. It was also added that though the appellant was at that
  time working against a temporary post, he would later on be absorbed
  against a clear vacalicy. It appears th~t on account of the closure of the
  Camp Jail where the appellant was posted, the relaxation of Rule 9 became
G unnecessary since the appellant was in the meanwhile, by order dated
  October 3, 1969 appointed as District Probation Officer (D.P.O) Grade II
  w.e.f. 6th October, 1969 with a pay scale of Rs. 200-400. It was, however,
  made clear in the said appointment letter that whenever occasion
  demanded, the appellant was likely to be posted as Welfare Of-
H ficer/Jailor/Brother and Deputy Superintendent of certified schools.
               P.V.T PHILIP v. P.N. REDDY [SA WANT, J.[                 105

       It appears that barely 8 months thereafter, by the order dated          A
16.6.1970, the appellant was transferred and posted temporarily as Jailor
at Maulaali Agricultural Colony J~il. On 2nd November, 1971, the I.G.
(Prisons) wrote a letter to the Home Secretary or' the State Government
pointing out that the appellant was directly recruited as Jailor temporarily
during the Telangana agitation and later, on account of the abolition of the
temporary post of the Deputy Superintendent of Jails and consequent
                                                                               B
reversions, he was absorbed as D.P.O. Grade II w.e.f. 6th October, 1969
to 29th June, 1970. However, since his initial appointment was to the post
of Jailor, he was taken back as Jailor when a clear vacancy arose treating
him as a direct recruit to the post of the Jailor w.e.f. 27th June, 1969. He
also pointed out that his period of training on appointment as D.P.O.          c
Grade II in between, was treated as service on other duties and he was
being continued as Jailor. It was, therefore, asserted in the letter that in
the circumstances, his appointment to the post of the Jailor was not
irregular. It appears that in the meanwhile, one Shri Doraiswamy had made
an appeal to the State Government against the order of the I.G. (Prisons)
                                                                           D
dated 24th October, 1970 reverting him from the post of the Jailor to that
of the Deputy Jailor and for restoration of his seniority in the cadre of
Jailors over two other jailors viz., S/Shri K. Vasantha Reo and M. Rama
Rao. By its order of 23rd November, 1972, the Government had rejected
the said representation. However, this order was reconsidered by the
Government in appeal and by its later order of 10th May, 1974 the              E
Government set aside the order of reversion and restored Shri Doraiswamy
to the post of the Jailor. As a result, the appellant was again sent back as
the D.P.0. Grade II. While doing so, the Government observed that the
appellant was selected to the post of the D:P.O. Grade II during 1969 and
he wi« temporarily appointed as J ailor in the same year although "the jails   F
)Vfog and the probation wing are two separate entities and inter-transfers
are not permissible." It was also observed that the appellant was allowed
io continue as Jailor overlooking Shri Doraiswarny's claim which was not
i.1 order, and the appellant's continuance as Jailor was against the rules
when he belonged to the Probation wing. It would be apparent that the
statement made in this order that the appellant was recruited as a D.P.O.      G
Grade II is inconsistent with the order dated 24th June, 1969 appointing
the appellant as a Jailor. However, the fact remains that consequent upon
the aforesaid order of the Government, the appellant was reverted as
D.P.O. grade II by an order of 2nd September, 1974. On 7th September,
                                                                               H
    106                   SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A 1974, the appellant made a representation to the Government. The LG.
  (Prisons) forwared the said representation to the Home Secretary of the
  State Government with his own comments and giving a detailed profile of
  the appellant's service, pointing out in particular that the appellant was
  initially appointed as a Jailor though against a temporary post, and not as
B a D.P.O and that he was also paid the salary of Jailor straightaway and not
  the pay admissible during the training period for the said post; that even
  when the was appointed as D.P.O., his services as Jailer were not ter-
  minated by any formal order, and that even the order of appointment to
  the post of D.P.O. mentioned that his services could be transferred as a
  Jailor at any time according to the exigencies of the admini<tration, and
C that the appellant was given the unmistakable impression that the Depart-
  ment desired to treat him as a Jailer on deputation. The LG. (Prisions),
  therefore, in the said letter, pleaded that the appellant's services as a Jailer
  should be regularised. By its letter of 29th April, 1975 the Government
  informed the LG. (Prisons) that he should consider the question of con-
D tinuing the appellant as a Jailer considering his past experience and his
  suitability and efficiency in .the said post, without, however, affecting the
  order dated 10th May, 1974 passed in favour of Shri Doraiswamy. It
  appears that from 2nd September, 1974 the appellant went on leave.
  Ultimately, the Government by its letter of 30th Septem~er, 1975 advised
  the LG. (Prisons) to appoint the appellant temporarily as Jailer, for the
E time being in one of the 3 temporary vacancies. In view of the said letter
  of the Government, the LG. (Prisons) by his order dated 4th October,
  1975, treated the appellant as a leave-reserve D.P.O. Grade II on other
  duty at District Jail, and appointed him to the post of the Jailor temporarily
  subject to the condition that his services were liable to be terminated at
F any time without notice and without assiging any reasons. He was so
  appointed as a Jailer in the vacancy caused due to the retirement of Shri
  Doraiswamy.

          By his order of 1st September, 1976, the Governor in exercise of his
G powers under Rule 47 of the State Subordinate Services Rules relaxed Rule
    6(b) of the said Rules and Rule 9 of the AP. Jail Subordinate Services
    Rules in favour of the appellant for his regular appointment as a Jailor.
    nos order, however, did not state, in terms, as to from which date the
    regularisation of the appellant's services as a Jailor was made. Hence, by
    their detailed order of 23rd December, 1987 in which the history of the
H   appellant's service was traced right from the day he was appointed as the
                P.V.T. PHILIP v. P.N. REDDY [SAWANT, J.]                    107

Jailor under order dated 24th June, 1969, the Government made it clear             A
that the regularisation of the appellant as a J ailor was w.e.f. 27th June, 1969
when the order posting him as a Jailor was passed. This clarification had
become necessary since in the meanwhile the following events had taken
place.

     By their order of 30th July, 1977 the State Government temporarily
                                                                                   B
promoted the appellant as Deputy Superintendent of Jails alongwith
another jailor, Shri M. Rama Rao. By his order order of 16th March, 1983,
     .                                                                 '
the LG. (Prisons) on the recommendation of the State Public Service
Commission, regularised the services of the appellant as Deputy Superin-
tendent of Jails w.e.f. 20th August, 1977. By his order of 22nd March, 1983,       c
the LG. (Prisons) declared that the appellant had completed his period of
probation as Deputy Superintendent of Jails on 19th August, 1978.

       By their order of 8th June, 1983, the Government temporarily
promoted the appellant to the post of the Superintendent of Jails alongwith D
other 5 Deputy Superintendents of Jails who included respondents 1 to 3.
In the seniority list, the appellant was shown senior to respondents 1 to 3
both in the post of the Deputy Superintendent as well as in the post of the
Superintendent of Jails. Against the Seniority given to the appellant over
them, respondents 1 to 3 made representations to the Government, and by
their order of 15th February, 1990, the Government rejected the repre- E
sentations. While rejecting the representations, the Government asserted
that since there was a vacancy in the post of Jailor on 27th June, 1969,
there was nothing wrong in appointing the appellant temporarily to the said
post from that date. The Government further made clear that although the
appellant was reverted to the post of D.P.O. Grade II subsequently, and F
the posts of Jailor and D.P.O. were not interchangeable, the fact remained
that the services of the appellant as a J ailor were never terminated. The
Government also stated that since the appellant was an experienced Ex-Air
Force officer besides being educationally qualified, the Government con·
sidered that his services would be more useful as Jailor right from his
temporary appointment to that post on 27th June, 1969. The Government G
further stated that the appellant had from time to time made repre-
sentations to regularise his services as a Jailor and hence the Government
had relaxed the rules in his favour by its order of 1st September, 1976. It
was only by a mistake that the date from which the relaxation was given
was not mentioned in the said order. That order further neither affected H
    108                    SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.

A the conditions of service of any member of the service nor caused any
   undue hardship to anyone. No representation was also made against the
   said order at that time, On the other hand, if the relaxation was not made
   in favour of the appellant, he would have been been definitely subjected to
   great hardship as all the service rendered by him from 27th June, 1969
B would have gone unacc~unted for. The Government further stated that
   they were not expected to keep in view the interests of future entrants in
   service while providing such relaxation of rules in favour of any in-service
   per.on. The Government pointed out that respondents 1 to 3 were not in
   service on 1st September, 1976 and, therefore, could not argue that they
   were adversely affected by the relaxation given to the appellant. The
C Government. contended that the only omission on the part of the Govern-
   ment was that they had not mentioned the date from which the relaxation
   should be given and that they had to make good that omission after it was
   pointed out by the Andhra. Pradesh Administrative Tribunal in its order
   dated 10th February, 1987 in R.P. No.1299 of 1986 which was filed by the
D respondents 1 to 3 against the rejection of their representation by the
   Government on 30th January, 1986. The Government further pointed out
   that had the date been mentioned in the original order of 1st September,
   1976, respondents 1 to 3 would not have had any locus standi to challenge
  _it since they had entered the service only in the year 1979. The appointment
E of the appellant was made about 20 year ago and a review of the appoint-
   ment at that distance of time was not desirable as it would be contrary to
   the law declared by the Supreme Court in Rabindra Nath v. Union of India,
   AIR (1979) SC 470, reiterated in S.S. Megha v. Union of India, AIR (1981)
   SC 1485. The Government also pointed out that by virtue of the relaxation
F given to the appellant, only he could be promoted as a Deputy Superinten-
   dent of Jails though temporarily on 20th August, 1977, the date on which
   respondents 1 to 3 were not iii service at all. They also pointed out that
   the appellant could have been regularly promoted to the said post from
   20th August, 1977 or his services could have been regularised from that
   date but for .the fact that the post was u'nder the purview.of the State Public'
G Service Commission and pending approval by the Commission, no person
   could be promoted regularly. Since the C<Jmmission could give concur-
   rence only on 29th February, 1982, the appellant's services in the cadre of
   the Deputy Superintendents of Jails could not be regularised till 25th
   February, 1981 The Government by the same order again made it clear
H that the orders issued on 1st·Septenlher, 1976 in the matter of relaxation
               P.V.T.PHILIP v. P.N.REDDY(SAWANT,J.]                     109

of rules and regularisation of the appointment of the appellant as a Jailor,   A
would be operative from 27th, 1969.

        The contentions raised by Shri Madhava Reddy, learned counsel
 appearing for the respondents against the seniority given to the appellant
 over respondents 1 to 3 in the post of the Deputy Superintendent may be B
 summarised as follows. He contended that the post of the Jailor and that
 of the D.P.O. belonged to two different cadres. The appellant's initial
 appointment as Jailor did not survive after the post of the jailor came to
 be abolished consequent upon the closure of the Camp Jail w.e.f. Septem-
 ber 1969. Although there is no formal order terminating the services of the
 appellant as a Jailor, the very fact that by the order of 3nd October, 1969, C
 the appellant was appointed as D.P.O. Grade II and had to undergo
 probation period of that post, shows that his earlier service as a Jailor had
 come to an end and he was freshly employed as a D.P.O. He continued as
 D.P.O. from 6th October, 1969 to 29th June, 1970 when he was absorbed
 as such D.P.O. as is stated in the order dated 2nd November, 1971 passed D
by the l.G. (Prisons}. Although, from 16th June, 1970 till 4th October, 1975
he was posted to work as Jailor, his substantial appointment was as a
 D.P.O. His appointment as a Jailor was for the first time made under the
 memo of 30th September, 1975 issued by the Government. The learned
 counsel also relied upon the order dated 11th July, 1975 which stated that
in accordance with the order of July 11, 1975, the appellant reported as E
'Leave Reserve Probation Officer Grade II" on 11th July, 1975 in his office
and he was directed to report immediately before the Superintendent,
District Jail, Secundrabad to assist him in connection with the emergency.
The second contention of the learned counsel was that according to the
rules governing the appointment to the post of the Deputy Superintende.nt F
of Jails, the said appointment could be made either by transfer (promotion)
or direct recruitment and the promotee-candidate had to serve as a Jailor
                                                                          1
for a minimum period of 5 years. Since the appellant had started his first
service as a Jailor for the first time on 30th September, 1975, he had not
even completed 2 years of service as Jailor on 30th July, 1977, i.e., the date
he was appointed as a temporary Deputy Superintenent of Jails. The last G
contention of the learned counsel was that Rule 23(a) under which the
relaxation was made was not available in the present case for regularisation
of the appellant's service from the 26/27th June, 1969. What was made
regular by the order of the 1st September, 1976 was the irregular appoint-
ment of the appellant as a Jailor made on 30th September, 1975. The H
        110                   SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

    A regularisation ~ould not be made from 26(27th June, ·1%9 since the appel-
        lant was appomted as a D.P.O. thereafter by the order of 3rd October,
        1969. According to the learned counsel, it is too late in the day to contend
        that his initial appointment was as a Jailor, since the appellant had ceased
        to be so, after he was appointed as ~ D.P.O.

    B                                                                                  I
             The facts narrated earlier clearly bring out some prominent features
      of the appellant's service. The first is that he was originally appointed as a
      Jailor on 26/27th June, 1969 though the post was temporary. Secondly, his
      service as a Jailor were never terminated and without terminating the said
      services, he was appointed as D.P.O. Grade II by an order of 3rd October,
                                                                                       I
    C 1969. The post of D.P.O. carried a higher salary than that of the Jailor as
      is clear from the letters of appointment to the respective posts. Although
      the posts of Jailor and that of D.P.O. were not interchangeable, the
      appellant's appointment order as D.P.O., made it clear that he was liable
      to be transferred as a Jailor whenever the exigencies of the service so
·   D required. Within about 8 months, by the order of 16th June, 1970, he was
      transferred and appointed to discharge the duties of a Jailor notwithstand-
      ing the fact that he was technically holding the post of the D.P.O. He
      continued to discharge the duties of the Jailor thereafter and he was ·
      appointed formally in one of the three temporary vacancies of Jailor by the
      order of 30th September, 1975. The said appointment was thereafter
    E regularised by the order dated 1st September, 1976. This order, however,
      did. not make it clear as to from what date his services as a Jailor were
      regolarised. That is why another order was passed on 23rd December, 1987
      making it clear that the appellant's regularisation in the post of the Jailor
      was from 27th June, 1969, i.e. the date on which he was initially posted as
    F a Jailor. Although the Government did not have any doubt with regard to
       the date from which his services as a Jailor were regolarised by the order
      of 1st September, 1976, the subsequent order of 23rd December, 1987
      became necessary in view of the decision of the State Tribunal on 10th
      February, 1987 whereby the Tribunal had remanded the proceedings
      beforn them, to the Government for reconsideration of the whole issue
    G afresh. It may be mentioned here that the said proceedings were filed by
       respondents 1 to 3 herein and the main contention raised in the said
      proceedings was with regard to the date from which the appellant's services
       stood regolarised as Jailor. The chronology of the facts given earlier leaves
       n() doubt that except for an interval of about 18 months, the Government .
    H had, from 27th June, 1969, all along treated the appellant a& a Jailor and
                P.V.T. PHILIP v. P.N. REDDY [SAWANT,J.]                      111

 taken work from him as such till he W<!S promoted to the post of the Deputy A
 Superintendent of Jails by the order of the 30th July, 1977. The Govern-
 ment itself had never disputed the said fact. On the other hand, they had
 throughout been asserting it and it is for this reason that they had thought
 it necessary to regularise the appellant's services as a Jailor from the date
 of this initial appointment to it on 27th June, 1969. All that Rule 3(a) of B
 the Ad hoc Rules then in existence in respect of the appointment to the
 temporary post of the Deputy Superintendent of Jails required was 5 years'
 service as a Jailor as one of the requisite qualifications for being promoted
 to the said post. There is no dispute that the appellant fulfilled the other
 qualifications for th~ post. The Rule specifically stated that the candidate
 "must have served as a Jailor ........... .for not less than 5 years". On the facts C
 narrated above, it can hardly be disputed and is not disputed before us that
 the appellant had served as Jailor for more than 5 years when he was
 promoted to the post of Deputy Superntendent of Jails on 30th July, 1977.
 The dispute is not with regard to the actual service as a J ailor but with
 regard to "the regular" service as a Jailor. What is contended on behalf of D
 the respondent employees is that although the appellant was initially
 recuited as a Jailor on 27th June, 1969, he had ceased to be so w.e.f. 3rd
 October, 1969 when he was appointed to the post of D.P.O. and till he was
 brought back and appointed temporarily as Jailor in one of the three
 temporary vacancies by the order of 30th September, 1975, he was not in
 the cadre of Jailors. Thus from 3rd October, 1969 till 30th September, 1975, E
·i.e., for about a period of six years he had ceased to be a regular Jailor and
 hence when he was appointed as a Deputy Superintendent of Jails on 30th
 July, 1977, he had not served as a regular Jailor for more than about two
 years. We have sufficiently detailed the appellant's service record which
 shows that in fact he had served as a Jailor for more than 5 years and had F
 fulfilled the qualifying period of service under the rule for promotion to
 the post of the Deputy Superintendent of Jails. The Rule does not in terms
 require that the service as a Jailor should be a regular service. It merely
 requires experience as a Jailor for a minimum period of five years.

      We are further of the view that there is no legal impediment in              G
regularising the appellant's services as a Jailor w.e.f. 26/27th June, 1969.
Rule 23(a) of the Rules reads as follows:

         "23(a). Date of commencement of.probation of persons first ap-
         pointed temporarily - if a person·, having been appointed tern- H
    112                   SUPREME COURT REPORTS (1993) SUPP. 1 S.C.R.

A            porarily under sub-rule (a) or sub-rule (c) or rule 10 to a post
             borne on the cadre of any service, class or category or having been
             appointed to any service, class or category otherwise than in
             accordance with the rules governing appointment theret.o is sub-
             sequently appointed to any service, class or category in accordance
             with the rules, he shall commence his probation from the date of
B
             such subsequent appointment or from such earlier date as the
             appointing authority may determine."

        The rule thus states that if a person has been appointed temporarily
  under Rule lO(a) of the said Rules to till an emergent vacancy and is
C subsequently appointed to the same service in accordance with the Rules,
  he shall commence his probation from the date of such subsequent ap-
  pointment or from such earlier date as the appointing authority may
  determine. According to the learned counsel for respondents 1 to 3, two
  events prevent the regularisation of the appellants' service as a Jailor w.e.f.
D 27th June, 1969, viz., his appointment as a D.P.O. on and from 3rd October,
  1969 and his subsequent temporary appointment as a Jail or on 30th Sep-
  tember, 1975. We do not find anything in Rule 23(a) which prohibits
  regularisation from the earliest date of the appointment to the post not-
  withstanding any intervening developments. Further, if in the peculiar facts
  of the present case, the Government thought it fit to give the benefit of the
E said Rule to the appellant w.e.f. the 27th June, 1969 when he was first
  appointed to the post of a Jailor, the Government's decision could hardly
  be faulted. But more important in this connection are the provisions of
  Rule 47 of the Rules which give wide powers to the Governor to deal with
  the case of any person in such manner as may appear to him to be just and
F equitable. There is no dispute that the Governor used his powers under
  the said Rule 47 in the present case when he issued the order on ls!
  September, 1976 by relaxing Rule 6(b) of the general rules and Rule 9 of
  the AP. State Jail Subordinate Services Rules for the regular appointment
  of the appellant w.e.f. his initial appoinrment as a Jailor on 27th June, 1969
  as clarified by his subsequent order dated 23rd December, 1987. Rule 47
G reads as follows:

             "Rule-Relaxation of rules by the Governor. - No rule made under
             the proviso to article 309 of the Constitution of India or continued
             under article 313 of that Constitution shall be construed to limit
H            or ad.ridge the power of the Governor to deal with the case of any
                 P.V.T.PHILIP v. P.N. REDDY[SAWANT,J.]                          113

          class or category of persons for being appointed to any civil post, A
          or of any person who is serving or has served in a civil capacity
          under the Government of Andbra Pradesh in such manner as may
          appear to him to be just and equitable:

              Provided that, where any such rule is applicable to the case of
          any person or a class of persons, the cases shall not be dealt with          B
          in any manner less favourable to the person or class of persons
          than that provided by that rule."

          This rule had come up for consideration before this Court in Govt.
of Andhra Pradesh And Ors. v. Sri D. Janardhana Rao And Another., [1977] C
1 SCR 702. While interpreting the said rule, this Court observed that "Rule
47 .......gives power to the Governor to relax the rigour of the general rules
in such a manner as may appear to him to be just and equi-
table ...................... clearly, the power under rule 4.7 is to be exercised in the
interest of justice and equity. It is not difficult to say that the occasions for D
acting under rule 47 may well arise after the attention of the Government
is drawn to a case where there bas been a failure of justice. In such cases,
justice can be done only by exercising the power under rule 47 with
retrospective effect, otherwise the object and purpose of the rule will be
largely frustrated. The Court also observed that the Court was taking firm
support from the decision of this Court in R.P. Khanna and Ors. v. SA.F. E
Abbas & Ors., [1972] 3 SCR, 548, and also specifically negatived the
contention that the rule was meant to be applied only prospectively and
held that there is nothing in rule 47 to indicate that the Governor cannot
exercise the power conferred by the said rule with retrospective effect if
this was no required in the interest of justice and equity."                             F

      On the facts of the present case, it can hardly be contended that his
was not a proper case for the Governor to exercise his powers under the
said rule. Both equity and justice lay in favour of the appellant. His
superior viz., the l.G. (Prisons) and the Government all along wanted to
treat him as a Jailor. In fact, he served 'rn a Jailor for more than the G
requisite qualiying period with merit and distinction and to the great
satisfaction of the authorities. As stated earlier, he is an Ex-Air Force
officer and he had put in not less than 10 years and 10 months service as
such officer. He was fully qualified educationally to hold the post of the
Jailor. What is more when on the closure of the jail, he was transferred or H
    114                   SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A appointed as D.P.O., the post of the D.P.O. carried a higher salary than
  that of the Jailor. The anxiety shown by the authorities to utilise his services
  as a Jailor was so much that even while appointing him as the D.P.O., since
  no post of a Jailor was available at that time, they added a special clause
  in the order of appointment making his services transferable as a Jailor
B whenever needed, notwithstanding the fact that the post of the Jailor and
  that of the D.P.O. were not transferable. What is further necessary to
  remember is that his service as a J ailor were never terminated even when
  he was appointed as a D.P.O. As pointed out about within about 8 months
  of his appointment as a D.P.O., he was taken back as a Jailor, and but for
  the small gap necessitated by the non-availability of the post of the Jailor,
C he continued to serve as a Jailor throughout. As against this respondents
  1 to 3 came in the service as direct recrnits for the first time as Deputy
  _Superintendents of Jails in 1979 when by that time the appellant had
  completed his service as the Deputy Superintendent of Jails for no less than
  two years. In the circumstances, we are of the view that that orders passed
D by the Governor on 1st September, 1976 and 23rd December, 1987 in
  exercise of his powers under Rule 47 have cured whatever defects might
  have been there earlier, in the matter of the regular appointment of the
  appellant as a Jailor.

           In the circumstances, we allow the appeals, set aside the impugned
E decision of the Tribnnal and declare that the appellant shall rank as senior
    to respondents 1 to 3 both as Deputy Superintendent of Jails and as
    Superintendent of Jails. The appeals are allowed accordingly, with costs
    against respondents 1 to 3.

    V.M.                                                        Appeals allowed.