THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.17720 OF 2022
AND
WRIT PETITION NO.25105 OF 2022
COMMON ORDER
In both these Writ Petitions, the petitioners are seeking a Writ of
Mandamus declaring G.O.Rt.No.112, Irrigation and Command Area
Development (Ser.I) Department, dt.26.03.2022, as illegal, arbitrary and
violative of Articles 14 and 16 of the Constitution of India and as
contrary to the State and Subordinate Service Rules, 1996 and the
Telangana Irrigation Engineering Service Rules, 2018 and consequently
to set aside the same.
2. In addition to the above, in W.P.No.25105 of 2022, the
petitioners are also seeking a declaration that the writ petitioners therein
are entitled for promotion to the post of Deputy Executive Engineers in
preference to the Assistant Engineers specified in Circular Memo
No.Rc/ENC/F4/ACR/15071025/2022 dt.11.04.2022 of the Engineer-in-
Chief (Admn.), I & CAD Department, Hyderabad and also a declaration
W.P.Nos.17720 & 25105 of 2022
2
that the petitioners are entitled for promotion to the post of Deputy
Executive Engineer in the existing vacancies strictly in terms of the final
integrated seniority list dt.06.03.2020 in terms of the Telangana
Irrigation Engineering Service Rules, 2018 notified vide G.O.Ms.No.32,
Irrigation & CAD (Services.I) Department, dt.25.04.2018 and to pass
such other order or orders as this Court may deem fit and proper in the
interest of justice.
3. Vide order dt.06.09.2022 in I.A.No.2 of 2022 in W.P.No.17720
of 2022, respondents 3 and 4 have been impleaded in W.P.No.17720 of
2022 and vide order dt.06.09.2022 in I.A.No.2 of 2022 in W.P.No.25105 of 2022, respondents 5 to 10 have been impleaded in W.P.No.25105 of 2022.
4. Brief facts leading to the filing of the present writ petitions are that writ petitioners herein are the direct recruits to the post of Assistant Executive Engineer, who joined in the months of November and December, 2008 pursuant to the notification issued by the State Public Service Commission. Respondents 3 and 4 in W.P.No.17720 of 2022 and respondents 5 to 10 in W.P.No.25105 of 2022 are the diploma engineers who were initially appointed as Technical Assistants and W.P.Nos.17720 & 25105 of 2022 3 subsequently have been promoted to the post of Assistant Engineer. Both the petitioners as well as the unofficial respondents are working under the Irrigation Department of the Government of Telangana. The Government of Andhra Pradesh, as it then was, under the powers conferred by the Proviso to Article 309 of the Constitution of India, framed regulations known as "Andhra Pradesh Engineering Service Rules" published vide G.O.Ms.No.285, Public Works Department, dt.22.02.1967. Under the said G.O., the post of Assistant Executive Engineer was to be filled
(i) by direct recruitment;
(ii) recruitment by transfer of Supervisors of Andhra Pradesh Engineering Subordinate Service, who have acquired B.E. or AIME qualification and who are approved probationers in that category.
Subsequently, the State Government issued G.O.Ms.No.32, Irrigation and CAD (Services-IX) Department, dt.12.04.2010 notifying the Rules called as "Andhra Pradesh Irrigation Engineering Service Rules, 2010" in supersession of the Rules framed under G.O.Ms.No.285 W.P.Nos.17720 & 25105 of 2022 4 dt.22.02.1967. Under the said G.O., the Assistant Executive Engineer falls under Category-6 and the method of appointment to the said post is
(i) by direct recruitment;
(ii) by appointment by transfer of Assistant Engineer and Assistant Technical Officer/Junior Technical Officer; and
(iii) by appointment by direct recruitment of in-service Work Inspectors of all Grades.
The Assistant Executive Engineers (direct recruits), Assistant Engineers, Technical Officers Special Grade were all eligible for further promotion to the post of Deputy Executive Engineer. In a unit of 24 vacancies, the vacancies at 1, 2, 3, 5, 6, 7, 9, 10, 13, 14, 15, 17, 18, 19, 21 and 22 were earmarked for Assistant Executive Engineers while the vacancies at 4, 8, 12, 16 and 24 were earmarked for Assistant Engineers and the 20th vacancy was earmarked for Technical Officer Selection Grade and the 11th and 23rd vacancies were earmarked for Engineering Post Graduates in the cadre of Assistant Executive Engineers. As such, in a unit of 24 vacancies, Assistant Engineers were eligible for 5 vacancies.
W.P.Nos.17720 & 25105 of 2022 5
5. After formation of the State of Telangana, the Irrigation Engineering Service Rules have been amended further by issuance of G.O.Ms.No.32, Irrigation and CAD (Services. I) Department, dt.25.04.2018 known as "Telangana Irrigation Engineering Service Rules, 2018" in supersession of the Special and Ad hoc Rules issued in G.O.Ms.No.32 dt.12.04.2010. Rule 2 of the said Rules specifies the category of posts and the Assistant Executive Engineer falls in Category-6. Rule 3 thereof specified the method of recruitment to the post of Assistant Executive Engineer
(i) by direct recruitment by selection made on the basis of the exam conducted by Telangana State Public Service Commission;
(ii) appointment by transfer of Assistant Engineers, who fulfil the criteria and completed 6 years of qualifying service in the cadre of Assistant Engineer subject to being approved probationers in the cadre of Assistant Engineer.
The qualification for the post of Assistant Executive Engineer by direct recruitment and by appointment by transfer is Bachelor's Degree in W.P.Nos.17720 & 25105 of 2022 6 specified engineering services. The Assistant Executive Engineers under Category-6 are eligible for further promotion to the post of Deputy Executive Engineer, i.e., Category-5 after completion of 5 years of regular service in the cadre of Assistant Executive Engineer, out of which, 2 years should be field service. The unit of appointment of Assistant Executive Engineer and Deputy Executive Engineer is Unit-1 comprising Zone-V and Unit-2 comprising Zone-VI.
6. The State Government issued G.O.Ms.No.31, Irrigation and CAD (Services. I) Department, dt.25.04.2018, notifying the Rules known as "Telangana Irrigation Engineering Subordinate Service Rules, 2018" and Category-1 of the said category is Assistant Engineer/Technical Officer. Vide G.O.Ms.No.84 I&CAD (Ser.I.1) Department, dt.14.06.2011, the post of Assistant Engineer is a Gazetted post and the Assistant Engineer is first level Gazetted post and the post of Assistant Executive Engineer is second level Gazetted post and the post of Deputy Executive Engineer is third level Gazetted post. Thereafter, G.O.Ms.No.52, Irrigation and CAD Department dt.30.11.2019 was issued notifying the Deputy Executive Engineer as a State cadre post. Subsequently, the State Government issued W.P.Nos.17720 & 25105 of 2022 7 G.O.Ms.No.1, dt.25.01.2020 amending Rule 5 of the Rules notified in G.O.Ms.No.32 dt.25.04.2018, according to which, the minimum qualification for appointment by transfer to the post of Assistant Executive Engineer is Diploma in the specified discipline and thus, on and from 25.01.2020, the Assistant Engineers with diploma qualification were also eligible for appointment by transfer to the post of Assistant Executive Engineers. Accordingly, the Engineer-in-Chief, Irrigation and CAD Department, has issued proceedings dt.27.01.2020 converting 35 Assistant Engineers (11 from Zone-V and 24 from Zone-VI) to Assistant Executive Engineers from the date of completion of 6 years of service in the cadre of Assistant Engineers and thus, the said Assistant Engineers became Assistant Executive Engineers in the years 2004 to 2008 in respective dates specified in the proceedings dt.27.01.2020 and they were also placed in the final integrated seniority list of Assistant Executive Engineers in Zones-V and VI up to 2008 Public Service Commission (in short, 'PSC') batch. This has resulted in the Assistant Engineers who were appointed by transfer as Assistant Executive Engineers vide proceedings dt.27.01.2020, march over the direct recruit Assistant Executive Engineers of 2008 PSC batch in view of their W.P.Nos.17720 & 25105 of 2022 8 conversion from retrospective date of completion of 6 years of service in the cadre of Assistant Engineers. The said Assistant Engineers were also further promoted to the post of Deputy Executive Engineers and thus, the direct recruit Assistant Executive Engineers were denied promotional opportunities. In the meantime, the Irrigation Diploma Engineers Associations have made a representation dt.07.01.2021 that the senior most Assistant Engineers who have completed more than 50 years of age are being denied promotion in terms of G.O.Ms.No.32 dt.25.04.2018, whereas the 2008 batch of Assistant Executive Engineers are being provided promotional opportunities with only 12 years of service and thereby the Assistant Engineers are deprived of their fundamental rights. Therefore, they sought promotions for 2002-2010 batches of Assistant Engineers as a one time measure as they are seniors to the Assistant Executive Engineers of 2008 batch. The State Government has called for a report from the Engineer-in-Chief (Admn.), Hyderabad for taking necessary action thereon. The Engineer-in-Chief (Admn.), Hyderabad, vide letter No.RC/ENC/A1/2021 dt.26.11.2021, gave a detailed report stating that the request of the Irrigation Engineers Association for one time promotion of Assistant Engineers to the post of W.P.Nos.17720 & 25105 of 2022 9 Deputy Executive Engineer (DEE) for 2002 to 2010 is not feasible for consideration as per the existing service rules as it will be against the service rules and would lead to legal complications and further that their request will be considered after 2008 PSC batch AEEs as they were promoted as AEE by appointment by transfer after 2008 PSC batch AEEs as per their eligibility. Thereafter, the Government has issued G.O.Rt.No.112, Irrigation and Command Area Development (Ser.I) Department, dt.26.03.2022 ordering that the senior Assistant Engineers who have completed a minimum service of 11 years in the category of Assistant Engineers, as on 31.12.2021, shall be considered for promotion to the category of Deputy Executive Engineers in exemption of Rules 3 and 7(v) of the Telangana Irrigation Engineering Service Rules, 2018 as a one time measure and by placing their cases before the DPC subject to certain conditions. Challenging the proceedings issued in G.O.Rt.No.112 dt.26.03.2022 to be in contravention of the State and Subordinate Service Rules, the present Writ Petitions have been filed.
7. Sri G. Vidya Sagar, learned Senior Counsel representing Smt. K.Uday Sri, learned counsel appearing for the petitioners submitted that prior to issuance of G.O.Ms.No.32 dt.25.04.2018 for the post of Deputy W.P.Nos.17720 & 25105 of 2022 10 Executive Engineer, there were two feeder categories, i.e., Assistant Engineers and Assistant Executive Engineers. The Assistant Executive Engineers were appointed by direct recruitment, while the Assistant Engineers were appointed by transfer by promotion. It is submitted that under G.O.Ms.No.32 dt.25.04.2018, Assistant Engineers were the feeder category for the post of Assistant Executive Engineers, who were in turn, feeder category for the Deputy Executive Engineers. However, vide G.O.Ms.No.32 dt.25.04.2018, only Assistant Executive Engineers were made eligible for promotion to the post of Deputy Executive Engineers and Assistant Engineers were made eligible for promotion to the post of Assistant Executive Engineer subject to their fulfilling certain conditions. It was also made clear in Note-3 of Rule 3 of the said G.O. that where direct recruitment of Assistant Executive Engineers is made in a particular year, the eligible Assistant Engineers who are appointed by transfer as Assistant Executive Engineers after completion of 6 years of service shall be placed below/above the direct recruit candidates of that particular year based on the date of communication of PSC selection list to Engineer-in-Chief (Admn.) and if the selection list by Public Service Commission is communicated to Engineer-in-Chief W.P.Nos.17720 & 25105 of 2022 11 (Admn.) on a particular date, all the Assistant Engineers appointed by transfer as Assistant Executive Engineers before that date will be placed above the direct recruit Assistant Executive Engineers and vice versa. Thus, he submitted that seniority of the Assistant Engineers who were promoted as Assistant Executive Engineers prior to the date of appointment of direct recruits was protected. He also drew the attention of this Court to Rule 7 which prescribes minimum service and eligibility for promotion and particularly Sub-rule (v) thereunder which provides that for promotion to the cadre of Deputy Executive Engineer from Assistant Executive Engineers, one should have rendered five years of regular service in the cadre of Assistant Executive Engineer, out of which, two years should be field service. It is submitted that aggrieved by the amendments made to the service rules under G.O.Ms.No.32 dt.25.04.2018, Writ Petitions in W.P.No.32632 of 2018 and batch were filed before this Court and the same are pending adjudication. It is submitted that no interim orders were passed by this Court except observing that if any promotions are made after the Service Rules of 2018, then such promotions shall be subject to the final outcome of the Writ Petitions. It is submitted that in the said Writ Petitions, the W.P.Nos.17720 & 25105 of 2022 12 Government has filed a counter affidavit justifying the amendments to the rule position. It is submitted that contrary to the said stand of the Government, the Government has now issued G.O.Rt.No.112 dt.26.03.2022 granting promotion to the senior Assistant Engineers who have completed a minimum service of 11 years in the category of Assistant Engineer as on 31.12.2021 as Deputy Executive Engineers in exemption of the Rules 3 and 7(v) of the TIES Rules, 2018 as a one time measure. It is submitted that before making the amendments to the Rules of 2018, there was a meeting conducted with all the Associations i.e., Telangana Assistant Executive Engineers Association, Diploma Engineers Association and Technical Officers Association in the chambers of the Engineer-in-Chief (Admin.) and after taking their views and suggestions only, draft rules were submitted to the Government as stated by the respondents in their counter affidavit in W.P.No.32632 of 2018. He submitted that though the report of the Engineer-in-Chief was called for, the same has not been taken into consideration at all while passing G.O.Rt.No.112 dt.26.03.2022 except for making a reference to the same. He submitted that though it is not in dispute that the Government has power to relax the rules in favour of any person, it has W.P.Nos.17720 & 25105 of 2022 13 to be only in public interest and the Government has not given any reasons for taking the stand contrary to the report of the Engineer-in- Chief. The learned Senior Counsel for the petitioners has drawn the attention of this Court to the details of the petitioners who have put in 13 years of service but not yet promoted as DEE as against the AEs who are sought to be promoted after putting in only 11 years of service to demonstrate as to how the petitioners are being denied promotion in spite of their possessing higher qualification and having been direct recruits. Therefore, according to him, G.O.Rt.No.112 dt.26.03.2022 has no rationale or basis. He has also drawn the attention of this Court to an instance whereunder, Ch.Ravinder Reddy who was the President of the Diploma Engineers Association and was promoted as Assistant Executive Engineer on 27.01.2020 and was placed at Serial No.4. Therefore, he submitted that the contention of the Diploma Engineers Association that they were not getting promotions in spite of putting in sufficient number of years of service is not correct. He submitted that even the Hyderabad Engineers Association and the Association of Telangana Assistant Executive Engineers have made representations to the Government, but the same have not been taken into consideration by W.P.Nos.17720 & 25105 of 2022 14 the Government. As regards the argument of the implead respondents that the Writ Petition is not maintainable for non-joinder of affected parties, he submitted that the details of the affected parties were not available on the date of filing of the Writ Petitions and therefore, they could not be made parties. It is further submitted that no right of any of the parties was infringed and therefore, the Writ Petition is maintainable. He therefore sought for setting aside of G.O.Rt.No.112 dt.26.03.2022.
8. The unofficial respondents 3 and 4 in W.P.No.17720 of 2022 have filed a counter affidavit and Sri Chikkudu Prabhakar, learned counsel appearing for them has reiterated the submissions made in the counter affidavit.
9. Sri M.Surender Rao, learned Senior Counsel representing Sri Srinivasa Rao Madiraju, learned counsel appearing for unofficial respondents 4 to 10 in W.P.No.25105 of 2022 has submitted that power of relaxation was exercised by the Government while issuing G.O.Rt.No.112 dt.26.03.2022. It is submitted that Rules 31 and 32(a) of the A.P. State and Subordinate Service Rules, 1996 empower the Government to relax the rules. It is submitted that where it appears to the Government to be just and equitable, the Government may relax the W.P.Nos.17720 & 25105 of 2022 15 conditions and therefore, this Court under Article 226 of the Constitution of India cannot go into the correctness or otherwise of the decision of the Government as long as it is exercised in accordance with extant rules. He submitted that vide Service Rules under G.O.Ms.No.32 dt.12.04.2010, the Assistant Engineers as well as the Assistant Executive Engineers were both feeder category for the post of Deputy Executive Engineer by promotion, whereas vide G.O.Ms.No.32 dt.25.04.2018, the channel of direct promotion to Deputy Executive Engineer was taken away from the Assistant Engineers and therefore, the unofficial respondents herein had filed a Writ Petition before this Court and thereafter, have made representations to the Government for relaxation of certain conditions. It is submitted that the Assistant Engineers as well as the Assistant Executive Engineers discharge same or similar functions and therefore, they have to be treated on par with each other. He referred to Note 1 under Rule 3 of G.O.Ms.No.32 dt.25.04.2018 to demonstrate that Assistant Executive Engineers/ Assistant Engineers are treated as same cadre for the purpose of determining the cadre strength of each of the categories of Telangana Irrigation Engineering Services. He also referred to G.O.Ms.No.32 W.P.Nos.17720 & 25105 of 2022 16 dt.12.04.2010 and Note-3 under Rule 3 thereof, wehreunder in respect of the combined cadre of Assistant Executive Engineer and Assistant Engineer (Non-Gazetted), the ratio for promotion to the next higher category should be 3:1 respectively. He also referred to Note-4 thereunder which provided for method of appointment for the post of Assistant Executive Engineer/Assistant Engineer cadre in the ratio of 3:1. He therefore tried to bring a parity between the post of Assistant Engineer vis-a-vis Assistant Executive Engineer in the Rules issued in G.O.Ms.No.32 dt.12.04.2010 and the Rules issued in G.O.Ms.No.32 dt.25.04.2018 and since the opportunity of promotion to the post of Deputy Executive Engineer from the post of Assistant Engineer was taken away by the amendment of the Rules in 2018, the affected parties have made a representation to the Government and by exercising power under Rule 31 of the A.P. State and Subordinate Service Rules, 1996, the Government has thought it fit to relax the Rules as a one time measure. It is submitted that since it is clear that the unofficial respondents and other similarly placed persons were being affected by the amendment of the Rules, the Government has taken a decision and such administrative decision cannot be challenged before this Court in a W.P.Nos.17720 & 25105 of 2022 17 Writ Petition filed under Article 226 of the Constitution of India. He submitted that the report of the Engineer-in-Chief was only to place facts on record and the ultimate decision has to be taken by the Government by arriving at an independent satisfaction on the facts and circumstances of the case. It is submitted that the Assistant Engineers have already challenged the amended Rules by way of a Writ Petition before this Court. He therefore justified the issuance of G.O.Rt.No.112 dt.26.03.2022 and the relaxation thereunder in respect of the Assistant Engineers who have completed 11 years of service.
10. Sri Chikkudu Prabhakar, learned counsel for impleaded respondents 3 and 4 in W.P.No.17720 of 2022 also supported the arguments of the learned Senior Counsel Sri M.Surender Rao and also placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Amrik Singh Vs. Union of India 1.
11. Learned Government Pleader for Services-II relied upon the averments made in the counter affidavit and submitted that the only issue to be considered in these Writ Petitions is whether G.O.Rt.No.112 dt.26.03.2022 is reasonable and justified and whether the Government 1 1980 LF(SC) 15 W.P.Nos.17720 & 25105 of 2022 18 which has power to relax the rules has done so for just and equitable grounds. He submitted that Rule 31 of A.P. State and Subordinate Rules, 1996 clearly empowers the State Government to relax the rules for equitable and justifiable cause and since the Assistant Engineers were being deprived of their eligibility for promotion directly to the post of Deputy Executive Engineer on fulfilling of certain conditions, the Government has thought it fit to relax Rules 3 and 7(v) of the Service Rules as a one time measure and therefore, there was no arbitrariness in issuing G.O.Rt.No.112 dt.26.03.2022. He further submitted that even under G.O.Rt.No.112 dt.26.03.2022, the ratio of 3:1 is being maintained between Assistant Executive Engineers and Assistant Engineers for promotion to the category of Deputy Executive Engineers and therefore, there is no injustice caused to the Assistant Executive Engineers by granting of such relaxation to the Assistant Engineers.
12. Learned Counsel for the petitioners as well as the respondents have placed reliance upon certain judgments which shall be dealt with while dealing with the arguments of each of the learned counsel.
13. Having regard to the rival contentions and the material on record, this Court finds that the Government of Telangana has framed W.P.Nos.17720 & 25105 of 2022 19 the Engineering Service Rules as early as in 1967 and thereafter, the same were amended in the year 2010 and after formation of the State of Telangana in the year 2018, the post of Deputy Executive Engineer was to be filled up from the Category-6, i.e., the post of Assistant Executive Engineer. While the Service Rules of 1967 provided for filling up the post of Assistant Executive Engineers by direct recruitment and also by transfer of Supervisors of A.P. Engineering Subordinate Services who have acquired B.E. or AIME qualification after completion of probation in that category, the 2010 Rules provided for appointment of Assistant Executive Engineers by direct recruitment and also by appointment by transfer of Assistant Engineers and Assistant Technical Officers/Junior Technical Officers and also by appointment by direct recruitment of in- service Work Inspectors of all Grades. Five (5) vacancies in a unit of 24 vacancies were earmarked for Assistant Engineers, majority of vacancies were earmarked for Direct Recruits of Assistant Executive Engineers and few vacancies for Technical Officers Selection Grade and for Engineering Post Graduates in the cadre of Assistant Executive Engineers. However, in 2018 Rules, the Assistant Executive Engineers were to be appointed by direct recruitment and by transfer of Assistant W.P.Nos.17720 & 25105 of 2022 20 Engineers who fulfilled the criteria and completed 6 years of qualifying service in the cadre of Assistant Engineer and the Assistant Executive Engineers were eligible for promotion as Deputy Executive Engineers after rendering 5 years of regular service out of which 2 years should be field service. Thus, by the amendment of Rules in 2018, the eligible Assistant Engineers have lost the opportunity of being considered for direct promotion to the post of Deputy Executive Engineer. It was in such circumstances that they have made a representation to the Government. The Government had called for a report from the Engineer-in-Chief and the report was also submitted stating that it is not feasible to relax the conditions for Assistant Engineers. However, this Court finds that the opinion of the Engineer-in-Chief can only be recommendatory and cannot be held to be binding on the Government. It is the Government which has to take a decision after taking into consideration all the factual as well as legal aspects of the issue. It is claimed that Rule 31 of the A.P. State and Subordinate Service Rules, 1996 empowers the Government to take a decision in the circumstances which appear to the Government to be just and equitable. Rule 31 of the A.P. State and Subordinate Service Rules, 1996 reads as under:
W.P.Nos.17720 & 25105 of 2022 21 "31. Relaxation of rules by the Governor:-- Notwithstanding anything contained in these rules or in the special rules, the Governor shall have the power to relax any rules contained in these rules or special rules, in favour of any person or class of persons, in relation to their application to any member of a service or to any person to be appointed to the service, class or category or a person or a class of persons, who have served in any civil capacity in the Government of Telangana in such manner as may appear to be just and equitable to him, where such relaxation is considered necessary in the public interest or where the application of such rule or rules is likely to cause undue hardship to the person or class of persons concerned."
Therefore, in view of the above rule position, where the Government considers the case to be just and equitable, it has the power to relax the rules. In this case, the Assistant Engineer was eligible to be promoted as Assistant Executive Engineer if he has rendered 6 years of service and also possesses a diploma in the respective field and thereafter, after putting in another 5 years of service as an Assistant Executive Engineer, he would be further eligible to be promoted as Deputy Executive Engineer. The Government therefore has taken into consideration that only such of the Assistant Engineers who have put in 11 years of service as on the date of the memo are eligible to be promoted to the post of Deputy Executive Engineer subject to fulfilling certain conditions. Further, as seen from G.O.Rt.No.112 dt.26.03.2022, the ratio of 3:1 W.P.Nos.17720 & 25105 of 2022 22 between Assistant Executive Engineers and Assistant Engineers is also directed to be maintained. Therefore, the Government seems to have taken the interest of all the stake holders into consideration before taking a decision, though there are no reasons given in writing as to why the report of the Engineer-in-Chief was not accepted by it. Where the Government deems it fit and proper to exercise its powers under Rule 31 of the A.P. State and Subordinate Service Rules, 1996, it has to be done in public interest and for just and equitable cause. Since the opinion of the Engineer-in-Chief was only to ascertain the rule position and the effects of such relaxation, it is within the powers of the Government to take a decision thereafter in accordance with law. This Court does not find that no allegation of mala fides is made by the petitioners in these Writ Petitions. In view of the same, this Court does not find any reason to interfere with G.O.Rt.No.112 dt.26.03.2022.
14. The learned counsel for the petitioners has relied upon the decision of the Hon'ble Supreme Court in the case of Bhupendra Nath Hazarika and another Vs. State of Assam and others 2 for the proposition that where the Government is vested with power to dispense 2 (2013) 2 SCC 516 W.P.Nos.17720 & 25105 of 2022 23 with or to relax any rule, it cannot be exercised in an arbitrary manner so as to dispense with the procedure of selection in entirety in respect of a particular class, for it has to be strictly construed and there has to be apposite foundation for exercise of such power. It is submitted that the State as a model employer has to be fair and just in its approach and it cannot exercise the power arbitrarily without due regard to Articles 14 and 16 of the Constitution of India. He further placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Vasu Dev Singh and others Vs. Union of India and others 3 on the power of the administrator in terms of the provision of Section 3 of the E.P.Urban Rent Restriction Act, 1949 and the power of the Legislature to amend the law. These decisions are on the legal point as to whether the Government can exercise its power of relaxation of rules arbitrarily.
15. In the decisions relied upon by the learned counsel for the unofficial respondents in the case of Santosh Kumar Vs. State of Andhra Pradesh and others 4, the Hon'ble Supreme Court has dealt with the power of the Government to relax the rules and as to whether notice to all the persons who are likely to be affected is required before 3 (2006) 12 SCC 753 4 Appeal (Civil) No.4917 of 2000 dt.22.05.2003 W.P.Nos.17720 & 25105 of 2022 24 exercising the power under Rule 47 of the General Rules (Corresponding to new Rule 31 of 1996 Rules), it was held that the rule ex facie does not contemplate any notice being given and it is not a case of considering inter se claim of any particular individuals as it is a case of relaxing the eligibility of a single individual as against many and under such circumstances, the rule does not envisage notice to all the affected persons. In the case of M.Venkateswarlu Vs. Government of Andhra Pradesh 5, the Hon'ble Supreme Court was considering when a notice to all persons who are likely to be affected is required before exercising power under Rule 47 and it was held that the rule does not contemplate any notice being given in such circumstances. The same is the ratio in the case of J.C.Yadav and others Vs. State of Haryana and others 6.
16. Thus, from all the above decisions, it is noticed that the Government has got power to relax the rules provided it is done in just and equitable manner. In the facts and circumstances stated above, this Court finds that the relaxation of the rules was a one time measure for just and equitable cause and therefore, there is no merit in these Writ 5 1996 LF(SC) 974 6 1990 AIR 857 (SC) W.P.Nos.17720 & 25105 of 2022 25 Petitions. However, it is made clear that this decision shall not have any effect on the Writ Petitions filed by the Assistant Engineers in W.P.No.32632 of 2018 and batch challenging the amendments made to the service rules under G.O.Ms.No.32 dt.25.04.2018. This decision in both these Writ Petitions is only in respect of G.O.Rt.No.112, Irrigation and Command Area Development (Ser.I) Department, dt.26.03.2022.
17. Both these Writ Petitions are accordingly dismissed. No order as to costs.
18. Miscellaneous petitions pending, if any, in both these Writ Petitions, including I.A.No.5 of 2022 in W.P.No.17720 of 2022, shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 12.09.2023 Svv