judgement:
Civil Appeal No. 681 of 1985.
From the Judgment and Order dated 24.8.84 of the High Court of Gujarat in S.C.A. No. 1286/1980.
T.V. Mehta, M.N. Shroff and K.M.M. Khan for the Appellant.
S.H. Sheth, Vimal Dave and S.C. Patel for the Respondents.
The Judgment of the Court was delivered by THAKKAR, J.
In the course of an exercise in interpretation of a provision, Section 6(3B) of Gujarat Agricultural Land Ceiling Act of 1960 complains the appellant state, the High Court has misinterpreted the said provision which had been correctly interpreted by the Tribunal Gujarat Revenue Tribunal.
The debate in the present appeal has centred on this plea the meritlessness of which will become evident presently.
The provision in question viz, Section 6(3B) is embodied in Chapter III of the Ceiling Act which bears the caption "Fixation of Ceiling on Holding Land, Determination of Surplus Land and Acquisition thereof".
The concerned provision in so far as material to the problem posed by the present appeal deserves to be quoted: "6(3B) Where a family or a joint family consists of more than five members comprising a person and other members belonging to all or any of the following categories, namely: (i) minor son, (ii) widow of a pre deceased son, 1071 (iii) minor son or unmarried daughter of a pre deceased son, where his or her mother is dead, such family shall be entitled to hold land in excess of the ceiling area to the extent of one fifth of the ceiling area for each member in excess of five, so however that the total holding of the family does not exceed twice the ceiling area; and in such a case, in relation to the holding of such family, such area shall be deemed to be the ceiling area: Provided x x x x x x" The philosophy of this provision stares one in the eyes.
When a family is both large and comprises (which expression is employed in the sense of includes, Collins ' dictionary defines comprise as . . to include . amongst it members who are subject to one or other of the socio economic handicaps, fairness demands that such family is permitted to retain some more land than other families which are not so handicapped.
The very nature of the three categories which are specified (minors, widow of a pre deceased son, minor son or unmarried daughter of a predeceased son who has lost both parents) conveys this message of plight.
Understandable it is, that for such a family which has to carry the burden of misery, the community acting through the legislature has a soft corner and pours milk of human kindness into this benevolent provision aimed at relieving their distress to an extent.
Such is the design.
Two tests must be satisfied commulatively for being eligible to claim the benefit: (1) The size of the family (No. of members should exceed 5) (2) It must consist of members one or more of whom belong to one or other of the specified handicapped categories.
Now the factual backdrop in which the problem of interpretation has surfaced needs to be traced.
The family of the respondent landholder consisted of 9 members including himself.
(The land holder, his mother, his wife, his three minor sons and his three minor daughters).
The question which arose was whether the land holder was entitled to the benefit of Section 6(3B) which provides that where a family or a joint family consists of more than 5 members comprising a person and other persons belonging to all or any of the specified categories, such family shall be entitled to hold land in excess of the ceiling area to the extent of 1/5 of the ceiling area for each member of the specified 1072 category in excess of five, subject to the rider that the total holding of the family does not exceed twice the ceiling area.
The Tribunal took the view that Section 6(3B) was not attracted to the case of the said land holder notwithstanding the fact that his family consisted of 9 members and also comprised of other members belonging to specified category (i) (minor son).
The view taken by the Tribunal is reflected in the following passage extracted from its order dated January 24, 1978 which gave rise to the Writ Petition in the High Court which in turn has given rise to the present appeal by special leave: "As regards the other contention of Shri R.K. Panchal, it may be observed that for the purpose of section 6(3B) family of the applicant consisted of not more than five members eventhough as a matter of fact there are nine members in his family because the applicant and his wife will count as one unit and his minor sons will count as four units for the purpose of section 6(3B) of the Act, and thus there are only five members in the family for the purpose of counting the unit.
Therefore, the family is not entitled to hold more than 45 acres of land on the ground that there are nine members in the family as argued by Shri R.K. Panchal.
In this view of the matter, the findings of the Mamlatdar and confirmed by the Deputy Collector do not deserve to be interfered with.
" Upon the jurisdiction of the High Court, under Articles 226/227 of the Constitution of India being invoked, the High Court reversed the Tribunal.
Because, the reasoning unfolded in the aforesaid passage was inconsistent with the exposition of law made by the High Court in its earlier pronouncement.
Reliance was placed on Nathekhan 's Gujarat Law Reporter Vol.
XXV (3) p. 1473 (Nathekhan vs Mamlatdar, Vadgam) case wherein Ahmadi, J. had earlier taken a contrary view.
Says Ahmadi, J. "With respect the Tribunal 's thinking is confused, Sub section (3B) of Sec. 6 merely lays down that where a family consists of more than five members comprising a person and other members of the categories mentioned therein, namely, (i) minor son, (ii) widow of a pre deceased son, (iii) Minor son or unmarried daughter of a pre deceased son, where his or her mother is dead, such family shall be entitled to hold land in excess of the ceiling area to the extent of one fifth of the ceiling area for each member in 1073 excess of five provided the total holding of the family does not exceed twice the ceiling area.
A bare perusal of this sub section makes it clear that in order to avail two conditions must be satisfied, namely, (i) the family should consist of more than five members and (ii) it should have amongst it the categories of members mentioned in the three sub clauses.
If the family does not consist of more than five members but has amongst it any of the members mentioned in the three sub clauses, it will not be entitled to the benefit of enlargement of the ceiling area.
Therefore, the benefit of enlargement of the ceiling area will ensure to only that family where the total number of members is more than five and amongst them are members belonging to the categories mentioned therein.
However, there is nothing in the sub section wherefrom it can be inferred that the wife, widowed mother and unmarried daughters are intended to be excluded from the family, that is group or unit constituting the family.
I am, therefore of the opinion that all the authorities including the Tribunal were wrong in coming to the conclusion that the aforesaid female members of the family had to be excluded for the purpose of determining the size of the family.
" We fully concur with this view.
The reasons are not far to seek.
It is not in dispute that the family of the land holder consisted of 9 members if the heads of the members of the family are counted.
The first condition required to be satisfied in order to attract Section 6(3B) is that the family must consist of more than 5 members.
The debate has centred round the question as to how the number of the members constituting the family should be counted.
In counting the members of the family the Tribunal has excluded from consideration the mother and the three minor daughters of the land holder.
Excluding these four persons the family consisted of 5 members.
In that event Section 6(3B) will not be attracted because one of the conditions precedent for the applicability of the provision is that the family must consist of more than 5 members.
The High Court on the other hand has upheld the contention of the land holder that his family in fact consisted of 9 members inasmuch as his mother and his wife as also his minor daughters were members of his family.
The Tribunal in terms observed that: "for the purpose of Section 6(3B) family of the applicant consisted of not more than 5 members eventhough as a 1074 matter of fact there are 9 members in his family." This reasoning is obviously fallacious.
The expression 'family ' has not been defined in the Act.
One has therefore to go by the concept of family as it is commonly understood, taking into account the dictionary meaning of the expression.
Collins English Dictionary defines family as: "a primary social group consisting of parents and their offspring, the principal function of which is provision for its members." "a group of persons related by blood; a group descended from a common ancestor." "all the persons living together in one household.
" Having regard to this definition it can be safely concluded that the land holder, his wife and his offspring consisting of three minor sons and three minor daughters would certainly constitute a family even if the mother of the land holder is excluded from consideration.
Thus in any view the family of the land holder consisted of 8 members including himself, his wife, three minor sons and three minor daughters.
The Tribunal was therefore clearly in error in taking the view that the family consisted of not more than 5 members.
Learned counsel for the appellant however contended that in applying the test whether or not the family consisted of 5 members regard must be had only to the members of the family belonging to the specified category namely minor sons in so far as the composition of the family of the land holder in the present case is concerned.
In other words the contention is that the land holder, his wife and his three minor sons are the only five persons of the family for the purposes of Section 6(3B).
In our opinion there is no warrant for reading Section 6(3B) in this artificial and truncated manner.
On a plain reading, Section 6(3B) is attracted where a family consists of more than 5 members "comprising a person and other members belonging to all or any one of the following categories viz. (i) minor son . ." In the present case the family of the land holder consists of more than 5 members.
The family also includes persons of one of the specified categories viz. the minor sons.
Thus, all the ingredients of Section 6(3B) are satisfied.
In order to claim benefit of Section 6(3B) the test which must be satisfied is a two fold test.
First, whether the claimant 's family consists of more than five persons.
In the present case the answer to this test is in the affirmative.
1075 The second test that is required to be answered in favour of the person who claims the benefit of Section 6(3B) is that such family must also comprise of one individual and other members besides himself who must belong to all or any of the three specified categories.
This test is also answered in favour of the respondent inasmuch as the family does comprise of the respondent and other members and from out of the other members, three belong to one of the specified categories viz. 'minor son '.
In otherwords access to Section 6(3B) is barred by two doors.
In order to secure entry the family must consist of more than 5 persons.
If there are more than 5 persons including the land holder himself, the first door will be opened and the land holder will be entitled to have an access provided the second door does not bar his entry inside the beneficial area.
The second door will also be opened provided that some of the other members meaning thereby members other than individual land holder belong to one of the three categories specified in the section.
The second door would be opened provided he has got minor sons.
Admittedly, the respondent has three minor sons.
Therefore both the doors which bar the access of the land holder to the benevolent provisions are opened.
It is not possible to accede to the submission that in ascertaining whether or not the pre condition is satisfied only the members of the specified category should be taken into account.
For, to do so would be to kill the letter as well as the spirit of the concerned provision.
We are therefore not prepared to uphold the plea of the appellant state that the High Court has not correctly interpreted the relevant provision in the case giving rise to the present appeal.
Under the circumstances the appeal deserves to fail.
But before we conclude we must set aright an inadvertent error made by the High Court in making computation of the extent of the additional land which the respondent was entitled to hold in excess of the prescribed ceiling in the context of section 6(3B).
Computation in this behalf must be made by applying the formula embodied in Section 6(3B) viz. that the family shall be entitled to hold land in excess of the ceiling area to the extent of "one fifth of the ceiling area for each member in excess of five" subject to the rider that the total area does not exceed twice the ceiling area.
It needs to be clarified that on a true interpretation of the provision "each member in excess of five" must of logical necessity mean each 'such ' member of the specified handicapped category.
In the present case there were 3 members in the family and it comprised of three members of the specified category viz. 3 minor sons.
Under the circumstances for each minor son in excess of the five members the holder was entitled to 1/5th of the ceiling area in excess of the pre 1076 scribed ceiling.
That is to say he was entitled to 3/5th of the prescribed ceiling over and above the ceiling area subject to the rider that the total retainable holding of the family did not exceed twice the ceiling area.
This aspect was lost sight of by the High Court in making the computation.
Of course in the ultimate result in the facts of the present case nothing turns on it as in any view of the matter the extent of the land held by the family computed on this basis would not exceed twice the ceiling area.
The holding of the family consisted of 60 acres and 4 gunthas.
And making a computation on the aforesaid basis having regard to the fact that the ceiling area was 45 acres, the family would be entitled to additional 27 acres (45/5=9x3=27).
Thus he would be entitled to hold 72 acres (45+27=72) whereas the holding of respondent consisted of only 60 acres.
Therefore the holding of the family was not in excess of the prescribed ceiling as computed in the aforesaid manner.
While the High Court in terms followed its earlier decision in Nathekhan 's case (supra) it overlooked the ratio of the decision in this behalf.
What was overlooked was the ratio reflected in the passage from para 6 of the decision extracted hereinbelow which is in accord with formula indicated by us: ".
There were two minor sons in the family of Nathekhan and one minor son in the family of Majamkhan.
Since the family unit of each brother exceeded five in number so far as Nathekhan is concerned, he was entitled to hold land in excess of the ceiling area to the extent of two fifth of the ceiling area and Majamkhan with one minor son was entitled to hold land in excess of the ceiling area to the extent of one fifth thereof.
Since the excess land in the case of each brother was of 4 acres and 38.5 gunthas being less than even one fifth of the ceiling area, it could not be held that their holding exceeded the permissible ceiling.
" We are therefore of the opinion that this appeal deserves to fail subject to the clarification in regard to the true position as regards computation of the permissible extent of land which can be held in the context of section 6(3B) of the Act.
The appeal is disposed of accordingly.
There will be no order regarding costs.
P.S.S. Appeal dismissed.

summary/full:
% Section 6(3B) of the Gujarat Agricultural Land Ceiling Act of 1960 entitles a family, consisting of more than five members comprising a person and other members of the categories mentioned therein, viz.(i) minor son, (ii) widow of pre deceased son, (iii) minor son or unmarried daughter of a pre deceased son, where his or her mother is dead, to hold land in excess of the ceiling area to the extent of one fifth of such area for each member in excess of five, provided the total area does not exceed twice the ceiling area.
The ceiling area prescribed was 45 acres.
The family of the respondent landholder consisted of nine members including himself, his mother, wife, three minor sons and three minor daughters.
The holding of the family consisted of 60 acres and 4 gunthas.
The Revenue Tribunal held that the landholder was not entitled to the benefit of s.6(3B) of the Act.
In counting the members of the family, it excluded from consideration the mother and three minor daughters of the landholder on the view that the applicant and his wife would count as one unit and his minor sons would count as four units and ruled that there were only five members in the family for the purpose of counting the unit, notwithstanding the fact that the family consisted of nine members and also comprised of other members belonging to the specified category.
In the writ petition, the High Court held that the landholder 's family consisted of nine members inasmuch as his mother and his wife as also his minor daughters were members of his family.
In the appeal to this Court it was contended for the appellant State that in applying the test whether or not the family consisted of five 1069 members regard must be had only to the members of family belonging to the specified category, namely minor sons, in so far as the composition of the family of the landholder was concerned, so to say, that the landholder, his wife and his three minor sons were the only five members of the family for the purpose of section 6(3B) of the Act.
Dismissing the appeal, ^ HELD: 1.1 Two tests must be satisfied cumulatively for being eligible to claim the benefit of section 6(3B) of the Gujarat Agricultural Land Ceiling Act, 1960: (1) the size of the family should exceed five, (2) it must consist of members one or more of whom belong to one or other of the specified categories.
All the ingredients of section 6(3B) are satisfied in the instant case.[1074G] 1.2 The expression "family" has not been defined in the Act.
The Court has, therefore, to go by the concept by family as it is commonly understood, meaning, a group of persons consisting of parents and their offsprings living together in one household.
In that view, that family of the landholder consisted of eight members including himself, his wife, three minor sons and three minor daughters.
The family of the landholder thus consists of more than five members.
The family also includes persons of one of the specified categories viz., the minor sons.
[1074A C, E F] 2.
It cannot be said that in ascertaining whether or not the precondition is satisfied only the members of the specified category should be taken into account.
For, to do so would be to kill the letter as well as the spirit of the benevolent provisions aimed at relieving the distress of family members subject to one or other of the socio economic handicaps.
[1075D E; 1071C D] 3.
Computation of the extent of the additional land must be made by applying the formula embodied in section 6(3B).
On a true interpretation of the provision "each member in excess of five" must of logical necessity mean each "such" member of the specified handicapped category viz. three minor sons.
Under the circumstances, for each minor son in excess of the five members, the holder was entitled to one fifth of the ceiling area in excess of the prescribed ceiling.
That is to say he was entitled to three fifth of the prescribed ceiling area over and above the ceiling area provided the total retainable holding of the family did not exceed twice the ceiling area.
The holding of the family consisted of 60 acres and 4 gunthas.
And making a computation on the aforesaid basis 1070 having regard to the fact that the ceiling area was 45 acres, the family would be entitled to additional 27 acres (45/5=9x3=27).
Thus he would be entitled to hold 72 acres (45+27=72) whereas the holding of the respondent consisted of only 60 acres.
Therefore, the holding of the family was not in excess of the prescribed ceiling as computed in the aforesaid manner.
[1075F G; 1076B C] Nathekhan vs Mamlatdar, Vadgam, G.L.R. 25(3) 1473 approved.


judgement:
Civil Appeal No. 1995 of 1977.
From the Judgment and order dated 16.9.1975 of the Andhra Pradesh High Court in Writ Petition No. 584 of 1975 .
G.L. Sanghi, Subodh Markandeya and Mrs. Chitra Markandeya for the Appellants.
K.G. Bhagat, Y. Prabhakar Rao, T.V.S.N. Chari and Ms. Vrinda Grover for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal is by special leave and is directed against the appellate judgment of a division bench of the Andhra Pradesh High Court upholding the rejection of the writ petition 26 by a Single Judge of that High Court.
Appellants are Engineers in the establishment of the Chief Engineer (Roads and Buildings of the Andhra Pradesh Government and the dispute is one of inter se seniority between them on the one side and respondents 3 and 4 on the other.
Appellants filed a writ petition being No. 4151 of 1972 in the High Court of Andhra Pradesh claiming a direction to the State Government for considering them for promotion to the post of Executive Engineer on the basis that they were senior to five promotee Assistant Engineers.
A learned Single Judge disposed of the said writ petition by judgment dated 29th March, 1973, and gave the following directions: "The respondents 1 and 2 (State of Andhra Pradesh and its Chief Engineer respectively) will, therefore, consider the claims of the petitioners for promotion as Executive Engineers having regard to their seniority in the cadre of Assistant Engineers in relation to the seniority of respondents 3 to 7.
I, therefore, direct respondents 1 and 2 to take the seniority of the petitioners, who were full members of service, in relation to the seniority of respondents 3 to 7 in the cadre of Assistant Engineers and consider the case of the petitioners for promotion to the posts of Executive Engineers in accordance with the rules.
" The State Government, in compliance with the directions issued to it, by order dated 10th August, 1983, made an order stating: "As per Rule 5 of the said Special Rules, for promotion to the post of Executive Engineers (ordinary Grade) a Graduate Assistant Engineer should be: (a) a full member or approved probationer; (b) a direct recruit should put in six years service as Assistant Engineer; and (c) a promotee Assistant Engineer should put in five years service.
No preference is provided for persons, who were either direct recruit Assistant Engineers or who secured earlier confirmation.
In the absence of specific provision in the 27 Special Rules for giving any preference to direct recruit Assistant Engineers in the matter of promotion to the category of Executive Engineers, only the provisions of General Rules for State and Subordinate Services have to be applied therefor.
According to Rule 33(a) of General Rules for Andhra Pradesh State and Subordinate Services, the seniority of a person in a service, class, category or grade, shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of first appointment to such service, class, category or grade.
So, the seniority of the Writ Petitioners and the respondents has to be considered with reference to their dates of regular appointment to the category of Assistant Engineers (R & B) but not from the date of confirmation in the said category, for purpose of promotion as Executive Engineers.
The dates of commencement of probation of the respondents and Writ Petitioners is as indicated below: Sl.
Name of the Asstt.
Date of Comm No. Engineer encement of probation ___________________________________________________________ Respondents 1.
B.V. Venkataramana 19.5.1961 2.
C.M. Ramachandramurthy 19.5.1961 Writ Petitioners 1.
Desoola Rama Rao 18.7.1966 2.
V. Murahari Reddy 30.6.1966 ___________________________________________________________ (Names of the three others stated in the order are not extracted as are not relevant).
Thus the respondents commenced their probation between 1959 to 1963 while the writ petitioners commenced their probation in 1966 and their seniority is far below the respondents.
The Government, after careful examination of the judgment of the High Court, with reference to the statutory rules and in relation to the seniority obtaining between the respondents and the writ petitioners, decide that the 28 turn of the two writ petitioners for promotion has not yet come and that their claims shall be considered for promotion as Executive Engineers (ordinary Grade) in their turn, along with others according to their seniority as per rules and eligibility.
" The appellants thereafter filed a second writ petition being Writ Petition No. 6157 of 1973 before the High Court challenging the Government order.
As already stated, the learned Single Judge has dismissed the writ petition and such dismissal has been upheld in appeal.
Appellants were directly recruited as Assistant Engineers on 29th April, 1966 and Special Rules for Roads and Buildings Division of the public Works Department were made on 27th June, 1967, but were given effect from 1st April, 1965.
According to the Rules, appointment to the posts of Assistant Engineers can either be by direct recruitment or by recruitment by transfer of Junior Engineers and Supervisors or Draftsmen (Special Grade) or Draftsmen (Grade I) Under the Rules, appellants became eligible for promotion to the post of Executive Engineer in 1971 and when their claim for promotion was overlooked the first writ petition, as already stated, was filed.
According to the appellants, respondents 3 and 4 were appointed by transfer under Rule 10 A of the Rules and were approved probationers.
They contend that the promotees are approved probationers and until confirmation as full members of the service, they would not be entitled to the benefit of seniority in service and, therefore, the appellants were senior to them.
They, therefore, challenged the Government order referred to above and contended that the High Court went wrong in not holding that appellants were senior to the two respondents and on that basis they were entitled to consideration for promotion to the post of Executive Engineer in preference to those respondents.
There is no dispute that both directly recruited Assistant Engineers as also promotee Assistant Engineers are entitled to promotion as Executive Engineers.
The rule requires direct recruits to have put in six years of service while for promotees the prescription is five years of service for being eligible to be considered for promotion.
As in many other service rules, there is no provision in the Rules under consideration that direct recruits would have preference over promotees for purposes of inter se seniority.
In the absence of such a rule the High Court followed the guideline indicated in the General Rules which provides that seniority shall be determined by the date of first appointment to the service.
The High Court found that respondents 3 29 and 4 came to serve as Assistant Engineers long before the appellants were recruited as Assistant Engineers.
In fact in paragraph 6 of his judgment, the learned Single Judge in the second writ petition has indicated that respondents 3 and 4 were temporarily appointed as Assistant Engineers on 14th August, 1959 and 19th May, 1960 respectively.
In exercise of power under Rule 23(a) of the General Rules, the services of the two respondents had been regularised retrospectively with effect from 19th May, 1961 and the order of regularisation had been passed by the Chief Engineer on 3rd May, 1967.
In the instant case the date from which regularisation has been directed to take effect is not anterior to their appointment as Assistant Engineers.
That being the position, regularisation is not vitiated on account of arbitrariness.
The only other aspect argued on this score was that the Chief Engineer was not competent to make the order.
Rule 23(a) of the Andhra Pradesh State and Subordinate Services Rules provides: "If a person, having been appointed temporarily under sub rule (a) or sub rule(c) of rule 10 to 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 thereto is subsequently appointed to any service, class or category in accordance with the rules, he shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine." (Underlining is ours) The vires of this rule had not been challenged but the only contention in this regard was that the appointing authority being the State Government, the Chief Engineer should not have made the order fixing the date of commencement of probation.
It is the case of the respondents that the State Government has delegated that power to the Chief Engineer and the order of delegation of that power is on record.
The law relating to inter se seniority in a cadre is well settled.
If there be a rule indicating the manner in which such seniority has to be fixed, that is binding.
In the absence of such a rule, length of service is the basis for fixing inter se seniority.
The High Court has found, and there is no longer any dispute, that respondents 3 and 4 have put in longer service than the appellants in the post of Assistant Engineer.
In that view of the matter, the State Government was right, and the High 30 Court appropriately approved it, that the appellants would rank below the respondents 3 and 4 in the cadre and the promotional benefit would be given to them after the claim of the respondents 3 and 4 has been duly considered.
We see no merit in the appeal.
It is accordingly dismissed.
There would be no order for costs.
P.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
% Rule 5 of the Andhra Pradesh (Roads and Buildings) Engineering Service Special Rules, 1967 lays down that for promotion to the post of Executive Engineer, a Graduate Assistant Engineer should be (a) a full member or approved probationer, (b) a direct recruit should put in six years service as Assistant Engineer and (c) a promotee Assistant Engineer should put in five years service.
There is no provision for giving preference to one category over the other for promotion.
Rule 23(a) of the Andhra Pradesh State and Subordinate Service Rules, 1962 empowers the appointing authority to commence the probation of a person appointed to the service with retrospective effect.
Rule 33(a) of these rules mandates the determination of the seniority of a person in a service by the date of first appointment.
The appellants were directly recruited as Assistant Engineers in April 1966.
Respondents 3 and 4 were temporarily appointed Assistant Engineers by transfer on 14th August, 1959 and 19th May, 1960 respectively.
Their services were regularised with effect from 19th May, 1961 by an order dated 3rd May,1967 in exercise of the powers under section 23(a) of the General Rules.
The appellants sought promotion to the post of Executive Engineer on the basis that they were senior to the promotee Assistant Engineers respondents.
Their case was that the Chief Engineer was hot competent to make the order under s.23(a) of the General Rules.
The State Government vide their order dated August 10, 1983 decided that the seniority of the direct recruits and promotees has to be determined with reference to their regular appointment of the category of Assistant Engineers and not from the date of confirmation in the said category and declared that the seniority of the appellants was far below the respondents and they would be considered for promotion in their turn alongwith others.
25 A writ petition filed by the appellants in the High Court challenging the said order was dismissed by a Single Judge, and that dismissal was upheld in appeal.
Dismissing the appeal by special leave, ^ HELD: The law relating to inter se seniority in a cadre is well settled.
If there be a rule indicating the manner in which such seniority has to be fixed, that is binding.
In the absence of such a rule, length of service is the basis for fixing Inter se seniority.
In the instant case, there is no provision in the Rules under consideration that direct recruits would have preference over promotees for purposes of inter se seniority.
In the absence of such a rule the guidelines indicated in the General Rules, which provide that seniority shall be determined by the date of first appointment to the service, have to be followed.
Respondents 3 and 4 have put in longer service than the appellants in the post of Assistant Engineer.
Their services had been regularised with effect from May 19, 1961 in exercise of the powers under Rule 23(a) of the General Rules, which date is not anterior to their appointment as Assistant Engineer.
The regularisation is thus not vitiated on account of arbitrariness.
The appellants would, therefore, rank below respondents 3 and 4 in the cadre and the promotional benefit would be given to them after the claim of the respondents 3 and 4 has been duly considered.


judgement:
Civil Appeal No. 571 of 1987.
From the order dated 5.12.1986 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 424/86 B 2.
T.R. Andhyarujina, F.H.J. Talyarkhan, Shri Narain, R.K. Krishnamurthi and Sandeep Narain for the Appellants.
A.K. Ganguli, P. Parmeswaran and Ms. Radha Rangaswamy for the Respondents.
39 The Judgment of the Court was delivered by A RANGANATH MISRA, J.
This appeal under section 130 E of the is directed against the decision of the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi, by which the Tribunal has reversed the appellate decision of the Collector of Customs (Appeals), Bombay.
The short point involves in this appeal is as to whether the imported "special purpose complex machine" has to be charged to customs duty under item 89.59(1) as claimed by the Revenue or under 84.45/48 of the tariff schedule as maintained by the appellant.
If the appellant 's claim is accepted the duty is at the rate of 40 per cent while if the department 's stand is maintained it is at the rate of 60 per cent.
The Assistant Collector took the view that the imported machine was not manufacturing carburettors and was discharging an individual function of plugging holes in the carburettor body with the help of lead shots.
Therefore, the appropriate entry was 84.59(1) of the Customs Tariff.
The appellant challenged the order of the Assistant Collector by preferring an appeal to the Collector (Appeals).
He took the view that the imported machine by plugging holes on the carburettor body with the help of lead shots was clearly a machine which was fully conforming to the description of a machine for treating metals inasmuch as it was treating carburettor body and preparing it for being revetted.
The plugging on the carburettor body, the Collector felt, was, therefore, in the nature of treatment on the metalic body for making it revetable subsequently; even otherwise also the machine by plugging holes on the carburettor body was confirming to the description of a machine tool as given under heading 84.54/48 of the Customs Tariff.
He therefore, accepted the appellant 's contention.
On further appeal the Tribunal after discussing the stand point of the two sides came to the following conclusion: "Our considered view is that the function of the machine is to plug the holes of carburettor body.
The cutting or trimming operation is incidental to this function as it removes the extruded portion of the lead shots.
The function of checking is also a part of the main function of plugging as the object of checking is to ensure that the plugging has been done perfectly to make it air tight.
None of these functions can be considered to be treating metal within the meaning of sub heading (2) of Tariff Heading 40 84.59.
The function of plugging the holes of carburettor body does not amount to working metal.
It does not change the shape or form of the metal.
The portion of the machine which cuts the extruded portion of lead shot is not a reaming machine working the internal surface of an existing hole to exact dimension within the meaning of Explanatory Note 84.45(A)(5) of the CCC N (Volume 3), Chapter 84.45.
The imported machine in question does not fall within the definition of machine tool given in MC.
Graw Hill Dictionary of Scientific and Technical Term as cited by the learned S.D.R. Classification of the impugned machine under Tariff Heading 84.45/48 is, therefore, ruled out.
Even by taking all the functions of the machine into consideration, the classification for the purpose of customs duty will have to be determined keeping in view Section Note 3 in Section XVI and Chapter Note 5 of Chapter 84 of the First Schedule to the , according to which the principal function will be determining factor.
The principal function of this machine is to plug the holes of carburettor body.
The machine does not fall under any of the heading of Chapter 84 of the Tariff." 84.59 of Schedule I provides: "Machines and mechanical appliances having individual functions, not falling within any other heading of this Chapter: (1). . . (2). . . 60%.
" The entry is, therefore, a residuary one and indisputably if any other entry applies, application of entry 84.59 is ruled out.
The appellant maintains that the appropriate entry to apply to its case is 84.45/48.
That provides: "Machine tools for working metal . 40%." Machine tool, according to Tool Engineers Handbook published by Mc Graw Hills means "any machine operating other than by man power which employs a contact tool for working natural or synthetic 41 material.
Graw Hill Dictionary of Scientific and Technical Terms A gives the following meaning: "A stationary power driven machine for the shaping, cutting, turning, boring, drilling, grinding or polishing of solid parts, especially metals." Even according to the Department, machine tools coming under entry 84.45 are machines used for shaping or surface working metal or metal carbides by either: (i) cutting away or otherwise removing metal or metal carbides (for example, lathes, drilling, planing, slotting, milling or grinding machines).
(ii) changing the shape or form of the metal without removing any of it.
The note indicates that machine tools in general remain classified under this heading even if specialised for a particular industry.
Machine tools include slotting machines, drilling and boring machines, tapping machines, reaming machines and riveting machines.
Counsel for the appellant produced before us a carburettor without being treated by the machine and another which has already been treated.
He also produced a lead shot as also a nozle and indicated the drilling process which is carried on by the machine on the carburettor.
We are of the view that the machine in question is indeed a multy purpose one and keeping its performance in view we are inclined to agree with the submission of the counsel for the appellant that the machine is a "machine tool working on metal" and should legitimately find its way into entry 84.45/48.
Once it is so identified it does not get into the residuary entry.
In our view the Collector had reached the correct conclusion.
The appeal is allowed.
The order of the Tribunal is vacated and that of the Collector is restored.
Parties are directed to bear their own costs.
N.V.K. Appeal allowed.

summary/full:
% The appellant firm imported "special purpose complex machine" and claimed that it was classifiable under item 84.45/48 of the tariff schedule and duty was payable at the rate of 40 per cent.
The Assistant Collector took the view that the imported machine was not manufacturing carburettors and was discharging an individual function of plugging holes in the carburettor body with the help of lead shots, and that the appropriate entry was 84.59(1) of the Customs Tariff and duty was payable at the rate of 60 per cent.
The appellant challenged the aforesaid order by preferring an appeal to the Collector (Appeals) who took the view that the imported machine by plugging holes on the carburettor body with the help of lead shots was clearly a machine which was fully conforming to the description of a machine for treating metals inasmuch as it was treating the carburettor body and preparing it for being rivetted, and therefore it was conforming to the description of a machine tool as given under heading 84.45/48 of the Customs Tariff, and allowed the appeal.
On further appeal, the Customs Excise and Gold Control Appellate Tribunal came to the conclusion that the function of the imported machine was to plug the holes of carburettor body, that none of its functions can be considered to be treating metal within the meaning of sub heading (2) of Tariff Heading 84.59, that classification as machine tool under Tariff Heading 84.45/48 has to be ruled out, and that the machine does not fall under any of the Heading of Chapter 84 of the 38 Tariff Schedule.
It accordingly reversed the appellate decision of the Collector of Customs (Appeals).
In the appeal under section 130 E of the to this Court on the question: whether the imported "special purpose complex machine" has to be charged to customs duty under item 84.59(1) as claimed by the Revenue or under 84.45/48 of the tariff schedule as maintained by the appellant.
Allowing the Appeal, ^ HELD: l. Entry 84.59 of Schedule I is a residuary one and indisputably if any other entry applies, application of this entry is ruled out.
[40F G] 2.
Machine tools in general remain classified under entry 84.45 even if specialised for a particular industry Machine tools include slotting machines, drilling and boring machines, tapping machines, reaming machines and rivetting machines.
[41D E] Tool Engineers Handbook Mc Graw Hills: Mc Graw Hill Dictionary of Scientific and Technical Terms referred to.
The machine in the instant case, is indeed a multi purpose one and keeping its performance in view, the machine has to be held as a "machine tool working on metal" and should legitimately find its way into entry 84.45/48.
Once it is so identified, it does not get into the residuary entry 84.59.
The Collector has reached the correct conclusion.
The order of the Tribunal is vacated and that of the Collector is restored.
[41F G]


judgement:
ivil Appeal Nos.
2635 38 of 1985.
From the Judgment and Order dated 30.10.1984 of the Andhra Pradesh High Court in R.P. Nos.
1998, 2065, 2085 of 1980 and 624 of 1982.
S.N. Kacker, A. Subba Rao, B. Sudharshan Reddy, Ramesh M. Keshwani and K. Ram Kumar for the Appellants.
Chella Seetharamiah, M.K. Ramamurthy, Ms. C.K. Sucharita, K. Rajendra Choudhary and K. Shivraj Chowdhary for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The appeals are by special leave and are directed against the judgment of the Andhra Pradesh Administrative Tribunal in a group of representation petitions while the writ petitions are under Article 32 of the Constitution, Writ Petition 72 of 1121 1987 being by promotee Deputy Tehsildars and Writ Petition 241 of 1987 being by another group of Deputy Tehsildars promoted by transfer.
The background of the litigations may now be indicated.
A set of rules regarding recruitment of Deputy Tehsildars was in force in the erstwhile State of Madras which continued to apply to Andhra Pradesh until in 1961 the Andhra Pradesh Revenue Subordinate Service Rules (hereinafter referred to as the 'Special Rules ') were brought into force.
The cadre under the Special Rules consisted of Deputy Tehsildars only.
Rule 3 provided: "3.
Appointment: (a) Appointment to the category of Deputy Tehsildars in this service shall be made: i) by direct recruitment, or ii) by transfer from members of the Andhra Pradesh Ministerial Service employed in the Revenue Department including the Office of the Commissioner of Land Revenue, Revenue Settlement parties and the office of the Director of Settlements Survey and Land Records.
(b) Substantive vacancies in the category of Deputy Tehsildars shall be filled or reserved to be filled by direct recruitment and recruitment by transfer in the porportion of 1:1".
Some directly recruited Deputy Tehsildars during the years 1962 and 1963 moved the Andhra Pradesh High Court in Writ Petition No. 1502 of 1971 disputing the seniority over them assigned to a group of promotees.
They alleged that though they had completed their probation long prior to the Upper Division Clerks who were appointed by transfer as Deputy Tehsildars and had become full members of the service upon confirmation in their posts while none of the Upper Division Clerks appointed by transfer had become full members, yet the directly recruited Deputy Tehsildars had been treated as junior and their claim to promotion as Tehsildars was being overlooked.
A learned Single Judge of the High Court dismissed the writ petition by holding that there was no foundation for the grievance of the directly recruited Deputy Tehsildars and that they had no cause of action within the frame of the rules.
The decision of the learned Single Judge was upheld in appeal by a Division Bench.
Support for that position 1122 was derived from Rule 33(a) of the Andhra Pradesh State and Subordinate Services Rules, 1962 (hereinafter referred to as the 'General Rules ').
A special leave petition was filed before this Court against the appellate decision of the High Court.
On 9th October, 1980, the State Government amended Rule 4(e) of the Special Rules with retrospective effect from 12th of October, 1961 in the manner indicated below: "In sub rule (e) of Rule 4 of the said Rules, for the words 'The seniority of the Deputy Tehsildar shall be determined with reference to the date of allotment maintained and the ranking assigned to him by the Andhra Pradesh Public Service Commission in the merit list of that selection ', the following shall be substituted, namely, 'the inter se seniority between the direct recruits to the category of Deputy Tehsildars and the promotees to the category of Deputy Tehsildars shall be determined from the date of their confirmation in the substantive vacancy in that category in the proportion of 1:1 as provided in sub rule (b) of Rule 3.
" A group of promotees who are appellants in the civil appeals went before the Andhra Pradesh Administrative Tribunal questioning the validity of the aforesaid amendment with particular emphasis on its retrospective application.
The Tribunal referred the matter to a three Judge Bench thereof.
Before the Tribunal, it was canvassed on behalf of the appellants that the prevailing rule regarding seniority was in Rule 33 of the General Rules and in the absence of any provision in the special Rules, the principle in Rule 33 was applicable for determining inter se seniority in the cadre of Deputy Tehsildars.
The claim of the direct recruits had been negatived by the High Court and the dispute was pending decision of this Court.
There was no scope for the State Government to amend the Rules in 1980 to the prejudice of the promotees.
Even if Government wanted to change their policy regarding determination of inter se seniority, it should have been made applicable prospectively and that the seniority already determined on the basis of Rule 33 of the General Rules should not have been disturbed.
The determination of seniority on the basis of the date of confirmation worked out prejudice for the promotees.
The Tribunal examined the matter at length and came to the following conclusion: "As a quota rule has been provided in the Special 1123 Rules relating to the recruitment of Deputy Tehsildars from two sources, after recruitment there is an imperative need to integrate the aforesaid two sources.
After integration necessity arises for fixing inter se seniority of persons who have come from the two different sources for facilitating promotions to the next higher posts.
There being no rule of relative seniority between direct recruits and rank promotees, and the General Rule 33(a) being incapable to bring integration, Government have rightly felt to enact a rule for integration of the two sources in one cadre and fixation of inter se seniority among members drawn from the said two sources.
Confirmation adopted as the formula for determination of inter se seniority is constitutionally valid.
There is no question of any discrimination in laying down a rule of seniority based on the principle of confirmation.
The promotee Deputy Tehsildars not having been recruited against the substantive vacancies have not acquired any vested interest so as to be protected against the impugned rule of seniority.
Their inter se seniority in the class of temporary Duputy Tehsildars against the nonsubstantive posts, evidently, determined under General Rule 33(a) remains unaffected by the impugned seniority rule.
Thus, the said rule does not offend Articles 14 and 16 of the Constitution.
It is free from any vice what so ever and cannot therefore be assailed.
The General Rule 33(a) is incapable of determination of inter se seniority between direct recruits and promotee Deputy Tehsildars despite the fact that the promotees belonging to the latter class are approved probationers and their recruitments are regular to the category of Deputy Tehsildars.
Since their posts are outside the permanent cadre, they cannot bring their seniority in the category of Deputy Tehsildars into the permanent cadre and press it against the direct recruits who are members of the permanent cadre from the beginning.
The seniority between them (after judgment) and the direct recruits shall be determined on the basis of the impugned rule of seniority, which, according to us is a valid enactment.
The Government shall now proceed to determine the seniority accordingly.
" These directions of the Tribunal are assailed in appeal before this Court.
1124 Writ Petition No. 72 of 1987 is by 17 promotees during the period 1966 to 1971 while Writ Petition No. 241 of 1987 is by 21 Deputy Tehsildars promoted by transfer from the posts of Upper Division Clerks also during the same period.
The cadre does not have a prescribed strength and temporary appointments seem to have become the rule as the history of the service shows.
Even though the ratio of 1:1 is prescribed in regard to the substantive vacancies, direct recruitments were made only in the years 1963, 1964, 1965 and 1966 and for a decade to follow there was no direct recruitment.
When demand for more hands in the category of Deputy Tehsildars became pressing supernumerary posts were created from time to time and such posts were filled up by promotion.
Rule 33(a) of the General Rules dealing with seniority, as far as relevant, provides: "The seniority of a person in service, class, category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade . . . " Relying upon this provision, seniority was being determined of promotees without taking into account the fact that there had been intervening reversions to the lower posts from which promotion to the post of deputy Tehsildar had been granted.
The legal position is well settled that the State is entitled to prescribe the manner of computing inter se seniority and in the absence of such prescription length of service is the basis.
A series of recent decision of this Court has made that position certain.
Rule 33 of the General Rules contains prescription regarding seniority and has different provisions to meet varying situations.
Sub rule (a) which provides that seniority of a person is to be determined "by the date of his first appointment to such service" has obviously been mis interpreted on account of the presence of the words 'unless he has been reduced to a lower rank as a punishment '.
It could not be the intention of Rule 33(a) to compute seniority from the date of first appointment even though it was not a continuous one.
For instance, a person is appointed to the post of Deputy Tehsildar on promotion on 1st of January, 1970 and is reverted to the lower post, not by way of punishment but on account of exigencies of service or otherwise, on 31st of March, 1970.
He is again promoted to that post on 1st January, 1980 and continues 1125 to hold that promotional post.
Another person is promoted to the post of Deputy Tehsildar on 1st April, 1970 and continues to hold that post without break.
If the interpretation adopted by the State Government of Rule 33(a) is accepted, it would mean that the first person on account of having been first appointed on an earlier date to the promotional post would rank senior to the second person.
This obviously could not have been the intention of the rule.
It is appropriate to interpret that rule to mean that the date of first appointment is intended to refer to continuous appointment only and the words 'unless he has been reduced to a lower rank by way of punishment ' are really redundant.
We are aware of the fact that this rule has been widely applied for determining inter se seniority and in case challenge to fixation of inter se seniority is permitted to be raised on what we have stated above, limitless litigation would crop up.
We would, therefore, make it clear that the interpretation which we now give of this rule shall have prospective application and unless there be any litigation already pending challenging the interpretation of this rule no new litigation would be permitted on that score.
We have already pointed out that the law is that it is open to the State to provide a rule for determining inter se seniority.
Rule 4(e) of the Special Rules before amendment in 1980 had provided that the seniority of Deputy Tehsildars would be determined with reference to the date of allotment maintained and ranking assigned by the Andhra Pradesh Public Service Commmission in the merit list of the particular selection.
That obviously was confined to inter se seniority of direct recruits and did not cover inter se seniority between recruits of the two sources.
Therefore, the General Rules had been relied upon.
In 1980, by the impugned amendment to Rule 4(e) of the Special Rules, the State Government prescribed the manner of providing inter se seniority among the recruits of the two categories.
The amended rule provided the date of confirmation in the substantive vacancy as the basis.
Rule 3(b) fixed the reservation of direct recruits with reference to substantive vacancies at 50% and Rule 4(e), therefore, made provision with reference to the seniority in the substantive vacancies with reference to the date of confirmation.
The amendment in terms is within the competency of the State Government and is not open to challenge.
This is a rule made under the proviso to Article 309 of the Constitution and as settled by this Court in exercise of that power the rule can be given retrospective operation.
The impugned amendment has been given retrospective operation from 12th October, 1961.
From the judgment of the Tribunal we find that the authority of the State Government to make a rule for future application was not seriously 1126 disputed but what was assailed was the retrospectivity given to the amendment.
Indisputably many of the promotees on the basis of seniority already assigned to them have been holding posts of Tehsildars, Deputy Collectors and Special Grade Deputy Collectors.
Many have retired from service having enjoyed those promotional benefits.
Promotions between 1961 and 1971 on the basis of the seniority assigned under Rule 33(a) of the General Rules is under challenge.
That period is a distant one from now varying between 17 to 27 years.
To allow the amendment to have retrospective operation is bound to create problems.
The State Government while amending the rule should have taken into consideration the practical problems which would arise as a consequence of retrospectivity.
It should have taken into account the far reaching adverse effect which the rule, if given such retrospective effect, would bring about in regard to services of scores of employees and the disquiet it would result in by disturbing settled situations.
We are, therefore, not of the view that the rules should be given retrospective effect from 1961.
It would, however, be wholly justified and appropriate to give the rules prospective operation by fixing 9th October, 1980 as the date from which it should take effect.
We accordingly direct that Rule 4(e) as amended on 9th October, 1980, shall not have any retrospective effect and would operate prospectively.
Though Rule 3(b) fixes the ratio as 1:1 in respect of substantive vacancies, the recruitment has not been regular and systematic.
We have come across several instances where the State Government do not take steps to give effect to their own rules and, therefore, though there is one mode of prescription, in action a different situation is brought about.
Rules have binding effect and they bind the State and the citizens alike once they are in force.
In order that law may regulate conduct, the State has to feel bound by its own laws and by willingly abiding by the law exhibit an ideal situation for the citizens to emulate.
We disapprove of the callous conduct of the State and direct that the rule shall henceforth be followed scrupulously by effecting recruitment at regular intervals according to the scheme of the rule.
The State shall within four months from today compute the substantive vacancies in the cadre and determine the quota of direct recruits to the rank of Deputy Tehsildars and after working out the vacancies available to be filled by the direct recruitment on the basis of 50 per cent of the total number, fill up the same by making direct recruitment within a period of four months thereafter.
Once that is done and regular recruitment is effected, the impasse which has now been created would not continue.
1127 The State is directed to draw up the seniority list on the basis of rule 4(e) on or before 31st December, 1988.
We have given a long time to eliminate the scope for making for an application for extension.
The Civil Appeals are dismissed.
The Writ Petitions shall have also the same fate except to the extent that Rule 4(e) as amended shall have prospective application.
In the Civil Appeals we leave the parties to bear their own costs throughout.
There would be no order for costs in the Writ Petitions.
G.N. Appeals and Petitions dismissed.

summary/full:
% In 1961 the Andhra Pradesh Revenue Subordinate Services Rules were brought into force, the cadre under the rules being Deputy Tehsildars.
Till then the rules in force in the erstwhile State of Madras were applicable to Andhra Pradesh.
Rule 3 of the 1961 Rules provides for appointment of Deputy Tehsildars by direct recruitment or by transfer from members of the Andhra Pradesh Ministerial Service employed in the Revenue Department.
It also provides that the substantive vacancies in the category of Deputy Tehsildars shall be filled or reserved to be filled by direct recruitment and recruitment by transfer in the proportion of 1:1 A writ petition was filed before the Andhra Pradesh High Court by some direct recruit Deputy Tehsildars disputing the seniority over them assigned to a group of promotees.
The Single Judge dismissed the same holding that the petitioners had no casuse of action within the frame of the rules.
This was upheld by the Division Bench, deriving support from Rule 33(a) of the Andhra Pradesh State and Subordinate Services Rules 1962.
Against this a Special Leave Petition was filed before this Court.
Meanwhile, the State Government amended Rule 4(e) of the Andhra Pradesh Revenue Subordinate Service Rules to the effect that the inter se seniority between direct recruits to the category of Deputy Tehsildars and promotees to the category of Deputy Tehsildars shall be 1119 determined from the date of confirmation in the substantive vancancies in that category in the proportion of 1:1 as provided in sub rule (b) of Rule 3.
The validity of the amendment was questioned by a number of promotees (the appellants herein) before the State Administrative Tribunal with particular emphasis on its retrospective application.
The Tribunal examined the matter at length and upheld the validity of the enactment.
It also directed the State Government to proceed to determine the seniority accordingly.
The said directions of the Tribunal are assailed in the appeals by Special Leave and the Writ Petition filed in this Court.
Dismissing the appeals, and the writ petitions, this Court, ^ HELD: 1.1 The State is entitled to prescribe the manner of computing inter se seniority and in the absence of such prescription, length of service is the basis.
Rule 33 of the Andhra Pradesh State and Subordinate Services Rules, 1962 contained prescription regarding seniority and has different provisions to meet varying situations.
Sub rule (a) thereof which provides that seniority of a person is to be determined "by the date of his first appointment to such service" has obviously been misinterpreted on account of the presence of the words "unless he has been reduced to a lower rank as a punishment".
It is appropriate to interpret that rule to mean that the date of first appointment is intended to refer to continuous appointment only and the words "unless he has been reduced to a lower rank by way of punishment" are really redundant.
This interpretation will have prospective application, as otherwise limitless litigation would crop up.
[1124F G; 1125C] 1.2 Rule 4(e) before amendment in 1980 provided that the seniority of Deputy Tehsildars would be determined with reference to the date of allotment maintained and ranking assigned by the Andhra Pradesh Public Service Commission in the merit list of the particular selection.
That was confined to inter se seniority of direct recruits and did not cover inter se seniority between recruits of the two sources.
In 1980, Rule 4(e) was amended and the State Government prescribed the manner of providing inter se seniority among the recruits of the two categories.
The amended rule provided the date of confirmation in the substantive vacancy as the basis.
Rule 3(b) thereof fixed the reservation of direct recruits with reference to substantive vancancies at 50% and Rule 4(e) made provision with reference to seniority in the substantive vancancies, with reference to the date of confirmation.
The amendment is within the competency of the State Government and is not open to challenge.
This is a rule made under the proviso to Article 309 of the 1120 Constitution and the rule can be given retrospective operation.
But the State Government, while amending the rule, should have taken into consideration the practical problems which would arise as a consequence of retrospectivity.
To allow the amendment to have retrospective operation is bound to create problems.
Hence Rule 4(e) as amended on 9th October, 1980, shall not have retrospective effect and would operate prospectively.
[1125D G; 1126A, E] 2.
Though Rule 3(b) fixes the ratio as 1:1 in respect of substantive vacancies, the recruitment has not been regular and systematic.
Rules have binding effect and they bind the State and the citizens alike once they are in force.
In order that law may regulate conduct, the State has to feel bound by its own laws and by willingly abiding by the law, exhibit an ideal situation for the citizens to emulate.
The rule shall henceforth be followed scrupulously by effecting recruitment at regular intervals according to the scheme of the rule.[1126E G] [The State Government has been directed to determine the vancancies available to be filled by direct recruitment within four months and to fill up the same within four months thereafter and to draw a seniority list on the basis of rule 4(e) on or before 31.12.88.]