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Judgment
L. Narasimha Reddy, J.—The petitioners seek a Writ of Certiorari for quashing G.O.Ms.No. 76 (Housing RH-1) Department dated 29-5-1999 issued by the 1st respondent and a consequential direction to give effect to the Service Rules of the 2nd respondent contained in G.O. Ms. No. 33 dated 26-5-1998.
The 2nd respondent - A.P. State Housing Corporation Limited (hereinafter referred to as ''the Corporation'') is a Government Company. The petitioners were employed therein as Junior Assistant and Typist respectively and their services were regularised on 1-1-1990 and 1-1-1985.
In accordance with the relevant provisions in the Articles of Association of the Corporation, the Government framed the A.P. State Housing Corporation Limited Service Rules (hereinafter referred to as ''the Rules''), through its orders in G.O. Ms. No. 33 dated 26-5-1998. The same were published in the A.P. Gazette dated 5-6-1998. Annexure I of the Rules insofar as it relates to appointment to the post of Senior Assistant is to the following effect:
Category Name of the Post Method of Appointment Qualification Appointing Authority Scale of Pay Remarks
4 Senior Assistant
1 . By promotion from categories of 7, 8 and 9 of Class III I.e. Jr.Asst./Jr.Stenos and Typists based on their integrated seniority. (Ratio of 2:1 between Graduates and Non-Graduates respectively.
Must have put in 5 years service M.D. Rs. 2195-4660
The ratio of 2:1 will be in force for a period of 5 years or till the existing undergraduate incumbents get promotion whichever is earlier.
By conversion from category of fair copy Superintendent.
The petitioners are non-graduates. The Rules enable them to be promoted to the post of Senior Assistants. The facility was available for a period of 5 years or till the existing incumbents are promoted, whichever is earlier. The petitioners state that except themselves, all other non-graduate Junior Assistants and Typists in the 2nd respondent- Corporation have been promoted as Senior Assistants on the strength of this provision.
The 1st respondent issued the impugned G.O., i.e., G.O.Ms.No. 76 dated 29-5-1999 amending the relevant entry in Annexure I. After the amendment, it reads as under:
Category Name of the Post Method of Appointment Qualification Appointing Authority Scale of Pay Remarks
4 Senior Assistant By promotion from the category of 7, 8 & 9 based on the integrated seniority Must possess a Degree in any discipline. M.D. Rs.2195-4560 -
The petitioners challenge this amendment through the impugned G.O., on several grounds. It is contended that the impugned G.O., was not published in the Gazette and as such does not have the effect of amending the Rules. The 2nd contention is that Rule 4 of the Rules stipulates that any amendment to the Rules can be only with the approval of the Board and the Government and, inasmuch the Board did not accord its approval, the amendment is without any basis. Subsidiary contentions, such as discrimination, unreasonableness, etc., are also advanced.
In the counter-affidavit filed by the 2nd respondent, the allegations that the impugned G.O., was not published in the Gazette and that the Board of the Corporation did not accord prior approval are not denied. The amendment is sought to be justified on the ground that the minimum qualification for the post of Junior Assistants and Typists is graduation and that promoting non-graduates to the superior post of Senior Assistant will have the effect of bringing about anomalous situation.
Sri A. Satya Prasad, learned Counsel for the petitioners, submits that once the 1st respondent had framed the Rules in exercise of its powers under the relevant Articles of Association of the Corporation and published the same in the A.P. Gazette, any amendment to the Rules can be only through the similar process and not otherwise. According to him, inasmuch as the impugned order was not published in the Gazette, it does not have the effect of amending the Rules. It is also his contention that Rule 4 mandates that any amendment to the Rules can be only with the prior approval of the Board and the Government. Since there is no approval by the Board for the amendment, the impugned order is ultra vires the Rules. The learned Counsel further submits that except the petitioners, rest of the non-graduate Junior Assistants and Typists have been promoted and the impugned order results in discrimination against the petitioners.
Sri V.Ch.Naidu, learned Standing Counsel for the Corporation, contends that the impugned order cannot be said to have brought amendment to the Rules. According to him, the impugned order only clarifies as to the requisite qualifications for various categories of posts and the same is permissible even without undertaking amendment to the Rules. As regards the allegation of discrimination, he submits that the petitioners cannot be equated with those who are already promoted before the impugned order came to be passed.
The first question that arises for consideration in this writ petition is as to whether there is any procedural irregularity in the impugned order with reference to the publication of the same in the Gazette.
Though respondents 3 to 38 were served with notices, they did not respond to the same.
It is not in dispute that the Rules were framed by the Government in exercise of its powers under the Articles of Association of the Corporation and the said Rules were published in the A.P. State Gazette. While the learned Counsel for the petitioner submits that through the impugned G.O., the Government had amended the Rules, the learned Counsel for the Corporation submits that what is contained in the impugned G.O., is only a clarification and not amendment. Therefore, it needs to be seen as to whether the impugned G.O., brings about any amendment to the Rules at all.
Amendment by its very connotation is an alteration of the existing state of affairs. In the context of legislation, be it principal or subordinate, an amendment brings about a change either by adding a new provision or omitting an existing one from the concerned legislation. Crawford in his Treatise on Interpretation of Laws, observed that:
"[A] law is amended when it is in whole or in part permitted to remain and something is added to, or taken from it, or it is in some way changed or altered in order to make it more complete, or perfect, or effective."
It has been observed in the preceding paragraphs that under the Rules issued in G.O. Ms. No. 33 dated 26-5-1998, there was a provision for promoting non-graduate Junior Assistants and Typists and the facility was extended for a period of five years or till all the non-graduate incumbents are promoted, whichever is earlier. Through the impugned order, this facility was taken away. Therefore, the impugned G.O., certainly brings about amendment and the same cannot be treated as a clarification as contended by the learned Counsel for the Corporation. The judgment of the Supreme Court in O.P. Lather v. Satish Kumar Kakkar (2001) 3 SCC 110, relied upon by the learned Counsel for the Corporation as regards power of an authority to issue clarification does not apply to the facts of the case.
Now it remains to be seen as to whether the amendment brought about by the impugned order is defective in any manner. It is well known that the power to amend is concomitant with the power to legislate. Many a time, amendments are treated as the extension of the very exercise of enacting the law. While conceding the unlimited power to the legislating agency to amend the piece of legislation, law insists that the same procedure as adopted in enacting or making the legislation should be adopted and followed while amending it. Any deviation from the same is prone to dilute the very legislative authority. The Constitution or the parent enactment, as the case may be, vest the concerned agencies with the power to enact laws within their respective spheres, in accordance with a particular procedure. If a procedure, different from the one needed for enactment, is adopted for amendment, the whole enactment can be subverted by the process of amendment either by a different agency or through a different procedure. Sometimes, it may prove to be disastrous.
In certain cases, the authority, which undertook the original enactment and the subsequent amendment, may be one and the same, but exercising of power under different pieces of legislation. The best example as regards such cases is the Rules made by the State or the Central Governments in exercise of powers under the proviso to Article 309 of the Constitution of India and amendment of the same in exercise of executive power under Articles 162 and 73 of the Constitution of India respectively. Though both the exercises are by the concerned Governments, it was held time and again by the Supreme Court that the Rules framed under proviso to Article 309 cannot be amended or altered in exercise of executive power of the Government. The decisions of the Supreme Court in cases, such as, Laxman Dundappa Dhamanekar v. Vishwa Bharata Seva Samiti, (2001) 8 SCC 383, Union of India and Others Vs. Diljeet Singh and Another, , State of Madhya Pradesh and another Vs. G.S. Dall and Flour Mills and Others, are some of the many on the subject.
In the present case, it is not in dispute that the Service Rules contained in G.O. Ms. No. 33 dated 26-5-1998 were published in the Gazette on 5-6-1998. It is true that there is no specific provision in the Articles of Association of the Corporation insisting on publication of the Rules in the Gazette. However, when the Rules framed under G.O. Ms. No. 33 were published in the Gazette, any amendment to the same is required to be through the same process. Publication in the Gazette was not without any purpose. It is in the exclusive privilege of the State to publish certain information in the Gazette. It is a sovereign act. The Rules which are published in the Gazette acquire significance, be it from the point of view of their origin or method of publicity given or mode of authenticity attached thereto. Any amendment to Rules so published should be through similar process. Non-compliance of the same would render the amendment inoperative.
The 2nd submission is as regards non-compliance with Rule 4 of the Rules. Rule 4 reads as under:
"4. Change in Rules : Any change or alteration or modification by way of amendment to these rules shall be made with prior approval of the Board and Government."
From a reading of the same, it is evident that for any alteration or amendment of the Rules, prior approval of the Board and Government is mandatory. The fact that the impugned order was issued by the Government satisfies the existence of approval from the Government. The Board is defined under Rule 3(b) of the Rules as meaning and including the Board of Directors of the Corporation. The petitioners have categorically stated in the affidavit that the Board of Directors of the Corporation have not accorded approval for the amendment of the Rules. The Corporation did not contradict this averment in the affidavit. Further a reading of the impugned order discloses that it was only the Managing Director of the Corporation that has moved the proposal for amendment of the Rules. There is no reference to any decision or resolution of the Board.
The insistence on the prior approval of the Board is not without significance. The Board is the ultimate authority to administer the affairs of the Corporation. Any decision concerning the Corporation has to emanate from the Board. The Government is only a supervising and controlling authority. It may be true that the decision of the Board by itself cannot bring about any amendment to the Rules unless approved by the Government. However, in the absence of proposal from and approval by the Board, the Government cannot undertake amendment on its own accord. It is well settled principle of law that where law requires a particular thing to be done in a particular manner, it should be done in that manner or not at all. This proposition dates back to 1936 when the Privy Council in AIR 1936 253 (Privy Council) authoritatively pronounced the same. The same was consistently followed by the Supreme Court in Gujarat Electricity Board Vs. Girdharlal Motilal and Another, , and several subsequent decisions. Accordingly, the impugned order, insofar as it does not conform to the procedure prescribed under Rule 4 of the Rules cannot be sustained.
Even otherwise, it needs to be seen that the Rules were framed in 1998 with a specific provision that the non-graduate Junior Assistants and Typists are entitled to be promoted to the next higher post of Senior Assistant in a particular ratio, for a period of 5 years or till all such employees are promoted, whichever is earlier. Hardly within one year, this provision was amended. In the meanwhile, all non-graduate Junior Assistants and Typists except the petitioners, stood promoted. The impugned order had its adverse affect only on the petitioners who are ''2'' in number. There does not exist any factual basis for discriminating the petitioners in extending the facility of promotion, without graduation.
Further, the basis for effecting the amendment is the disparity as to qualifications. It may be true that as of now the minimum qualifications for appointment to the post of Junior Assistants or Typists is graduation. However, at a time when the petitioners were appointed, it was not so. Instances are not lacking where transitional provisions are made to enable the persons with inferior qualifications to move to the higher posts duly granting exemptions vis-avis the subsequent prescription of qualifications.
Viewed from any angle, the impugned order cannot be sustained. The same is accordingly set aside. Consequently, the petitioners shall be entitled to be -
(a) promoted in accordance with the unamended provisions relating to post of Senior Assistant in Annexure-I;
(b) accrded their relevant positions in the promoted posts in the seniority list; and
(c) extended other benefits.
The Writ Petition is accordingly allowed. There shall be no order as to costs.