TaxTMI 
TaxTMI 
2010 (5) TMI 805
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....ssistant 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 as Assistant Conservators and this G.O.Ms. No. 35 was published in the Gazette of the Andhra Pradesh on 01.06.1995. On 03.07.1995, the Andhra Pradesh Government issued G.O.Ms. No.51 amending this proviso to Rule 2 of the Forest Service Rules so as to provide that Forest Range Officers who secured Honours in their batches in the Rangers Training Course shall be eligible for appointment as Assistant Conservators and this G.O.Ms. No.51 was published in the Gazette of An....
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..... 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. Nageshwar Rao that portion of the Government Orders in G.O.Ms. Nos. 35 and 51 directing that the amendments to Rule 2 therein would have retrospective effect from 08.04.1986 were required to be published in the Official Gazette. A plain reading of G.O.Ms. Nos. 35 and 51, copy of which has been annexed, would show that the amendments to Rule 2 of the Forest Service Rules made therein are in exercise of powers conferred by the proviso to Article 309 of the Constitution. A....
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....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 publication or promulgation that mode has to be followed and that such a requirement is imperative and cannot be dispensed with. The Court, in particular, held that where a power is conferred to exempt a class of persons from the levy created by a statute upon another authority by the legislature, that authority has to, and can, exercise that power only in strict compliance with the requirements of the provision conferring that power and it is in the interest of the ....
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...., 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 country in such media as generally adopted to notify to all the persons concerned the making of rules .... ." 8. It will be clear from the law laid down by this Court that where the law prescribes the mode of publication of the law to become operative, the law must be published in that mode only, but where the mode of publication of the law is not prescribed by the law, such law should be published in some usual or recognized mode to bring it to the knowledge of ....
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....ch 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 has been affected by the amendments to Rule 2 of the Forest Service Rules, is, therefore, misconceived. 11. In Chairman, Railway Board & Ors. v. C.R. Rangadhamaiah & Ors. (supra), cited by Mr. Nageshwar Rao, however, whether seniority was a vested right or not was not the issue and the issue was whether pension of a Government servant admissible under the rules in force at the time of retirement could be adversely affected by a retrospective amendment to the rules....
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...., 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 retrospective effect. The various aspects of merits have been considered by my Brother Pattanaik and I cannot usefully add any further words on merits. ...." [(1997) 8 SCC at 639 at para 162]. It is, thus, clear from the judgment of a larger Bench that in S. S. Bola & Ors. v. B. D. Sardana & Ors. (supra) that seniority of a Government servant is not a vested right and that an Act of the State Legislature or a rule made under Article 309 of the Constitution can retrospect....