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TMI Blog2010 (5) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government of India sent a Circular to all the State Governments to depute the Forest Range Officers who have passed the Forest Ranger Course with honours for admission to two year course at the State Forest College for the post of Assistant Conservator of Forest. In response to the Circular, the Government of Andhra Pradesh sent the Forest Range Officers, who had secured honours in Forest Ranger Course, on deputation to the State Forest College for training as Assistant Conservators of Forests during the period 08.04.1986 to 23.06.1994. On 13.11.1994, the Andhra Pradesh Administrative Tribunal delivered a judgment in O.A. No.3258 of 1994 holding that the deputation of Forest Range Officers, namely, Sri B. Narayan Reddy and Sri T. P. Thimma Reddy, for training as Assistant Conservators of Forests was contrary to the Andhra Pradesh Forest Service Rules, 1965 (for short `the Forest Service Rules'). On 29.05.1995, the Government of Andhra Pradesh issued G.O.Ms. No. 35 adding a proviso to Rule 2 of the Forest Service Rules that Forest Range Officers who secured first and second ranks in their batches for Honours in Ranger's Training Course shall be eligible for appointment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect from 08.04.1986 was not published in the notifications in the Official Gazette. He argued that the legal consequence is that the amendments to Rule 2 made by G.O.Ms. NOs. 35 and 51 would have only prospective effect. In other words, the amendments by G.O.Ms. Nos. 35 and 51 would have effect from 19.05.1995 and 03.07.1995 respectively and will not have retrospective effect from 08.04.1986. 4. Mr. P.S. Patwalia, learned counsel appearing for Respondent Nos. 3, 4, 7, 8, 12, 13 and 14 (the private respondents), in reply, submitted that Article 309 of the Constitution does not prescribe any specific mode of publication for the rules made under the Article and all that is required is that there should be some reasonable mode of publication so that the affected parties are made aware of the factum of promulgation of the rules. He further submitted that in Chandra Prakash Tiwari Ors. v. Shakuntala Shukla Ors. [(2002) 6 SCC 127], this Court has held that where the parties were actually aware of the fact that the rules have been published, the argument that the rules were not actually published is a hyper-technical one. 5. We are unable to accept the submission of Mr. Nage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any rules so made shall have effect signify that the rules will become operative subject only to the provisions of the Constitution and the provisions of any Act made by the appropriate Legislature under Article 309 of the Constitution. Hence, Section 21 of the Andhra Pradesh General Clauses Act, which provides that where in any Act, or any rule passed under any Act, it is directed that any order, notification or other matter shall be notified or published, such notification or publication shall, unless the Act otherwise provides, be deemed to be duly made if it is published in the Official Gazette, has no application whatsoever to a rule made under the proviso to Article 309 of the Constitution. 6. In I.T.C. Bhadrachalam Paperboards Anr. v. Mandal Revenue Officer, A. P. Ors. (supra) cited by Mr. Rao, one of the questions which arose for decision was whether the publication of the exemption notification in the Andhra Pradesh Gazette as required by Section 11(1) of the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 was mandatory or merely directory and this Court held after considering its earlier decisions that where the parent statute prescribes the mode of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to 11civilized man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential. Also in State of Maharashtra v. Mayer Hans George [AIR 1965 SC 722] this Court held: ...... Where there is a statutory requirement as to the mode or form of publication and they are such that, in the circumstances, the Court holds to be mandatory, a failure to comply with those requirements might result in there being no effective order the contravention of which could be the subject of prosecution but where there is no statutory requirement we conceive the rule to be that it is necessary that it should be published in the usual form i.e. by publication within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 08.04.1986, the amendments take away the vested rights or accrued rights and are liable to be struck down by the Court. 10. In reply, Mr. Patwalia submitted that in S. S. Bola Ors. v. B.D. Sardana Ors. [(1997) 8 SCC 522] a three-Judge Bench of this Court has taken a view that a particular position in the seniority list within a cadre can neither be said to be accrued or vested right of a Government servant and that an Act of the State Legislature, which has retrospective effect and which affects seniority of Government servants, cannot held to be ultra vires the Constitution. He submitted that the private respondents, who were Forest Range Officers and were deputed to the State Forest College in accordance with Government Orders, had been treated as direct recruits of different years to the posts of Assistant Conservators of Forests pursuant to the G.O.Ms. Nos. 35 and 51 and that the seniority in the cadre of the Assistant Conservators of Forests have to be determined vis-`-vis the appellants, who were also direct recruits in accordance with the relevant seniority rules. He submitted that the contention of the appellants that their vested/accrued right to seniority h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, we find that this Court has clearly held that seniority was not a vested or accrued right. Three separate judgments were delivered by K. Ramaswamy, J., S. Saghir Ahmad, J. and G. B. Pattanaik, J. K. Ramaswamy, J. has held: no one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. [(1997) 8 SCC at 634] G. B. Pattanaik, J. has also held: Thus, to have a particular position in the seniority list within a cadre can neither be said to be an accrued or vested right of a Government servant and losing some places in the seniority list within the cadre does not amount to reduction in rank even though the future chances of promotion get delayed thereby. .... [(1997) 8 SCC at 666]. S. Saghir Ahmad, J. has agreed with G. B. Pattanaik, J. and has held: In the instant case, the judgments rendered by this Court in the earlier decisions relating to the seniority of the present incumbents were founded on the service rules then existing. These service rules have since been replaced by the impugned Act which has been enforced with retrospe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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