Jaganmohan Reddy, C.J:— The petitioner seeks quashing the order passed in G.O.Ms No. 1694, Health, dated 20th July, 1966, reverting him from the post of Clinical Professor of Ophthalmology to which he was appointed on 9th November, 1965.

2. It is the petitioner's contention that he was the only Assistant Professor who having complied with the qualifications prescribed in O.G Ms. No. 934, dated 20th April, 1985, on the date when the post fell vacant on 10th June, 1965, was promoted not withstanding the representations made by the 2nd Respondent; that due to Government exigencies, he was not relieved from Eluru to Join the pest of Assistant Professor till 8th June, 1961. According to the petitioner as well as the 2nd Respondent they passed the M.S in Ophthalmology in April, 1961 and they along with three other doctors were posted to teaching institutions by a single order dated 8th May, 1961. There is no dispute that the 2nd Respondent was senior among the five doctars; but according to him as the District Medical Officer was on leave, he was made the District Medical Officer in charge for a month from 1st May, 1961, and was only relieved on 8th June, 1961 after which he Joined as Assistant Professor on 15th June, 1961. So far as the petitioner is concerned, he says that under G.O.Ms No. 934, dated 20th April, 1965, a person would be qualified to be appointed as a Professor if the requisite qualification were satisfied on the date when the post fell vacant which was on 10th Tune, 1965. The qualifications required under G.O Mr. No. 3020, dated 28th August, 1964, for appointment as Professor of Ophthalmology was M.S in Ophthalmology or F.R.C.S with D.O or D.O.Ms or equivalent diploma. Apart from these, teaching experience for a period not less than four years after post-graduation was necessary or in the absence of such, persons when five years teaching experience (three years before and two years after poss-graduation as a Lecturer or Assistant Professor in the respective subject) may be appointed. Neither the petitioner, nor the 2nd Respondent is claiming to have the teaching experience prior to being qualified for M.S Therefore, in ord or to be appointed as Professers, they must have four years of traceing experience by virtue of G.O.Ms No. 934, on the date when the post fell vacant not as specified in last-mentioned Government Order on the date when they are appoined. The 2nd Respondent did not join as Assistant Professor till 15th June, 1961, so that on the date when the post fell vacant on 10th June, 1965, he did not have the requisite qualification for being appointed in that, he had less than four years teaching experience. The petitioner undoubtedly had four years teaching experience and as we said, notwithstanding the protests of the 2nd Respondent even prior to the post falling vacant on 10th June, 1965, the petitioner was appointed merely on the ground that he satisfied the requirements. This is not a case of supersession of a person qualified to be appointed, because something is wanting in him, but as between two persons, the person qualified was appointed and nothing else. On the 2nd Respondents own averments, four days after he was made an in-charge District Medical Officer on 1st May, 1961, viz., 4th May, 1961 he booked a personal trunk-call to the Director of Medical Services and intimated him that he had passed M.S in Ophthalmology and requested him to post him to a teaching institution relieving him from Eluru at the earliest opportunity so that he may not be placed at a disadvantage when compared to the four other doctors who passed M.S Degree along with him, but were far juniors to him in service. The Director assured him on phone that the delay in his relief after receipt of posting orders would be ratified. According to him, the 2nd Respondent sent an application to the Director dated 10th May, 1961, with the same request which was also reiterated when he contacted the Director again as in charge D.M.O on phone on 20th May, 1961, regerding the relief of a lady doctor of the District. According to the 2nd Respondent, the department was fully aware that he was held up at Eluru and was only relieved on 8th June, 1961, and could join as Assistant Professor only on 15th June, 1961. It is also the case of the 2nd Respondent that on 15th February, 1962, he applied to the Director for protection of delay of 23rd days in relief and says that he was made to understand later that recording to the then existing rules, the teaching experience would be counted till the date of sending proposals for filling the vacancy and the department addressed the Government accordingly. Again, he says that when he came to know that Dr. R. Ramakrishna Reddy was going to retire on 10th June, 1965, he applied to the Director on 24th April, 1965, reminding him to take necessary action on his application dated 15th February, 1962. When he did not receive any reply, he appealed to the Secretary, Medical Services twice on 7th May, 1965 and on 14th August, 1965, and later to the Hon'ble Minister on 29th October, 1965. All these representations were made before the petitioner was appointed on 9th November, 1965, after the petitioner was appointed on 9th November, 1965 the 2nd Respondent appealed on 29th November, 1965 to the Chief Minister, Andhra Pradesh and after about 8 months, the order promoting him was passed on 20th July, 1966. It may be stated the order reverting the petitioner and promoting the 2nd Respondent was made by the Government by relaxing the rule in favour of the 2nd Respondent in view of the deficiency of the four years of teaching experience required for being posted as a Professor and his appeal was allowed.

3. Mr. Chaudhry contends (1) that the appeal of the 2nd Respondent to the Chief Mininter was not in accordance with rules, (2) that the order of reversion was made without notice to the petitioner and was contrary to the principles of natural justice and is illegal; (3) that the order offends Article 311 of the Constitution; and (4) that Rule 47 of the Andhra Pradesh State and Subordinate Services Rules under which the power of relaxation was exercised was ultra vires the Constitution inasmuch as the power which was contained in Clause (5) of section 241, Government of India Act was not incorporated in Article 309 of the Constitution, consequently, it can be said that the Constitution-makers did not intend to vest this power in the Government.

4. Mr. Dikshitulu on the other hand, contends that the order of appointment of the petitioner was only temporary inasmuch as it shows that he was posted to act, which he interprets as an acting appointment. If it is so, the petitioner has no hold over the post and can always be reverted, which is what the Government did to redress the wrong done to the 2nd Respondent. It was urged the ultra vires character of Rule 47 was never raised by the petitioner and when it was pointed out that it was, his answer is that what has been questined in the petitioner's affidavit is the consequence of the exercise of the power and not the power itself. The petitioner it is contended has an effective, alternative remedy by way of appeal against his reversion. So far as the principles of natural justice are concerned, though Mr. Dikshitulu could not validly sustain the action of the Government by omitting to give the petitioner a notice except on the ground that it was temporary appointment, he none the less contends that if it was a regular appointment, and notice was necessary it would be otiose because in no case, the petitioner who was junior to the 2nd respondent could claim preference and the Government was bound to appoint him again. If this contention is accepted the Court ought not to quash the order which will achieve no purpose if ultimately the 2nd respondent is again going to be reappointed.

5. It is true that the 2nd respondent is very much senior in service to the petitioner. It is equally true that the petitioner fulfilled the requirements of promotion, because lie had completed 4 years' teaching by the date where the post fell vacant. Whatever may be reason, the 2nd respondent did not fulfil this requirement. No doubt it is urged that even after he was relieved on the 8th June, 1961, he could have taken charge of the post as Assistant Professor the next day, i.e 9th, without availing his joining time if so he would have fulfilled that requirement, and since he did not do so, he has himself to blame for not fulfilment the requirement. But it could equally be contended by the 2nd respondent, as indeed it was, that at that time, the requirement of having to complete 4 years on the date when the vacancy arises was not significant or important; nor could it be predicated that nearly 4 years hence, i.e a month and 20 days before the vacancy arose, the rule would be changed requiring 4 years qualification on the date when the vacancy arises instead of on the date of the appointment. The 1st respondent, Government, in its counter, stated that though the petitioner's appointment was on a regular basis, it was made overlooking the claims of other persons whose claims are on a better footing than the petitioner. But it may be stated that it is the action of the Government that has created the complication. Even on its own admission, that because the 2nd respondent was detained in Eluru for administrative reasons and for no fault of his he was prevented from having four years teaching experience on 10th June, 1955, the date on which the Additional Professor of Ophthalmology, Osmanid Medical College, fell vacant, the Government reviewed both the case of the petitioner and the 2nd respondent.

6. The First question that arises for determination is whether the petitioner is entitled to notice and ought to be given an opportunity of being heard on the appeal filed by the 2nd respondent. We think he has that, right because he was appointed regularly to the post as is evident from the order G.O.Ms No. 2316, Health, dated 9th November, 1965 under which certain persons were transferred and the petitioner was promoted, in of which it was stated that they were posted to act as Professors. The persons who were transferred were already Professors in the regular service and even they were posted to act. The words “posted to act” therefore has not the same significance as that sought to be suggested by Mr. Dikshitulu that the appointment was temporary. Memo. No. 1822/62-1 dated 11th June, 1963, of the Government of Andhra Pradesh, General Administration (Ser-A) Department, furnished by the 2nd respondents, advocate, clarifies as to what is meant by “regular appointment.” It says:

“A person is said to be appointed to a service on a regular basis when in accordance with the rules applicable at the time he discharges the duties of a post borne on the cadre of such service or commence the probation, instruction, or trainning prescribed for the members thereof. Regularisation has nothing whatsover to do with confirmation or availability of vacancies. At the time a temporary or permanent vacancy is filled up, it should be done either (a) on considerations of merit and seniority; or (b) on considerations of exigencies of the service alone. The former are “regular” appointmets and the latter “Emergency.” Regularisation ex-post facto should never occur unless there has been some oversight in stating the terms of appointment when the vaccancy was first filled. At the time it should either have been “regular” or “emergency” under General Rule 10(a)(i) or rule 37(a).”

7. Mr. Dikshitulu lays emphasis on the clarification that

“there can sometimes be more than one regular appointment against one vacancy (permanent or temporary) as persons absent from duty are also eligible for regular appointment in their due turn or sometimes a few candidates in the approved list who have been appointed on a regular basis, may not be available for such appointment and others in that list may then be appointed in those vacancies.”

8. We do not think that this clarification supports the contention of the learned advocate for the 2nd respondent that the appointment of the petitioner was a temporary one, because the petitioner's appointment was to a post born on the cadre of the medical service and certainly not an emergency one. It was open no doubt to the Government to have appointed the petitioner on a temporary basis; nor was it a case where the appointment was made subject to the determination of the rights of the 2nd respondent. Be that as it may, every Government servant has a right of appeal in accordance with the rules governing this service, against an appointment made by promotion which is likely to infringe his rights. When such an appeal is filed, as indeed in this case it is said that it was filed, the person affected is entitled to notice and ought to be afforded a reasonable opportunity of being heard before an order affecting him could be made. It is idle to say that the petitioner even if he was given an opportunity would not have any valid or convincing ground to urge as to why he should not be reverted.”

9. In this case, so many points have been urged, viz., that the appeal is not in order that the Government have no power of relaxation that even if such power exists it ought not to have relaxed the rule because it would be an arbitray exercise of power in that it is designed to favour one person (see D.S Reddy v. Chancellor, Osmania University & Others1) and that the mere relaxation of the rule subsequent to the appointment of a person qualified on the date of the appointment, as against a person in whose favour the relaxation subsequently was made, does not confer a right on him to the post in preference to the person already duly and regularly appointed, etc. These questions would have had to be determined by the appellate authority if the petitioner had raised these points on being given notice of the appeal. “Whenever an order is made effecting the right of any person or it has civil consequences, even if it is an administrative order the person who is affected thereby must be given an opportunity of being heard. It is his just and natural right which is inherent in the rule of law under which we are governed and is part of the basic concept of justice itself. The constitution of India has conferred this right under Article 341 in cases of removal, dismissal or reduction in rank and even under Article 309, recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State, can be regulated only in accordance with the rules framed thereunder. Even apart from that, “where there is a right vested in an authority created by a statute and rules were made under a provision of law, which have equally the force of law, be it an administrative or quasi-judicial authority to hear appeals and revisions, or where orders are made against a person. It becomes the duty of that authority to hear judicially that is to say, in an objective manner, impartially and after giving reasonable opportunity to the parties concerned in the dispute, to place their respective cases before it. No order at any rate, could be passed against a person which affects him without giving him an opportunity of being heard. Such an order would be held to be vitiated as being contrary to the principles of natural justice, because the right to be heard is a sine qua non of a fair hearing.” (See Nagendranath Bora v. Commissioner of Hills Division, Assam2, and Brajlal Manilal & Co. v. Union of India3).

10. In A.C Companies v. P.N Sharma4, their Lordships of the Supreme Court in considering the question about the status of any body or authority as a tribunal under Article 136(1), dealt with the functions of a Court and a Tribunal. In respect of the latter, Gajendragadkar, C.J, who expressed the view of the majority, said at page 1599:

“In reaching their administrative decisions, administrative bodies can and often do take into consideration questions of policy. It is not unlikely that even in this process of reaching administrative decisions, the administrative bodies or authorities are required to act fairly and objectively and would in many cases have to follow the principles of natural justice; but the authority to reach decisions conferred on such administrative bodies is clearly distinct and separate from the judicial power conferred on Courts, and the decisions pronounced by administrative bodies are similarly distinct and separate in character from judicial decisions, pronounced by Courts.”

11. Several English cases and the earlier cases of the Supreme Court were considered. It is not our purpose to deal elaborate with these judgments, except to say that the learned Chief Justice adopted the test laid down by Lord Reid in Ridge v. Baldwin 5 viz., that the necessity to follow judicial procedure and observe the principles of natural justice, flows from the nature of the decision which the Watch Committee in that case had been authorised to reach under section 191(4) of the Municipal Corporations Act, 1882. Following this view, it was observed that the area where the principles of natural justice have to be followed and judicial approach has to be adopted has become wider and consequently, the horizon of the writ jurisdiction has been extended in a corresponding measure.

12. In a recent case in State of Orisa v. Binapani Dei6, the Government declared the 1st respondent, Dr. (Miss) Binapani Dei to be deemed to have retired on 16th April, 1962, on the ground that the age given by her at the time of entering service was less than her real age, without however holding an enquiry in accordance with the provisions of Article 311 of the Constitution of India. In the High Court, the State of Orissa contended that Article 311 has no application to the case of the 1st respondent because she has not been dismissed or removed from service—just in the same way as in this case it is contended, that Article 311 has no application because the reversion does not come under the said Article. It was further contended that the true date of birth of Dr. Miss Binapani Dei was 16th April, 1907 and that she had been properly declared superannuated in consonance with the finding arrived at in an enquiry held for that purpose by the State. Even so, it was observed that the decision of the State could be based upon the result of an enquiry in manner consonant with the basic concept of justice; that an order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay; that the deciding authority may not be in the position of a Judge called up on to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon, but that he is under a duty to give the person against whom an enquiry is held in opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice; and that for that purpose the person against whom an enquiry is held must be informed of the case he is cellcd upon to meet, and the evidence in support thereof. Shah, J., after laying down the above principles, observed at page 1271:

“The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies a like to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be super-added. If there is a power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law end importance thereof transcends the significance of a decision in any particular case.”

13. These rules, in our view, have now become part of a system by which the citizens of this country are governed and must be so ingrained as to become a second nature as a part of process of thinking of every person or authority called upon to determine the rights of persons of pass orders prejudicially affecting any person or having civil consequences.

14. It cannot be heard to be said that even after a hearing, the decision would be the same. Such an argument, apart from giving rise to an implication of prejudice, is alien to the basic concept of the rule of law and the fair and impartial consideration of the inter se claims of persons whose rights are said to be affected.

15. In the view we have taken, we do not propose to go into the further questions raised before us, all of which can be raised before the authority concerned, when due notice is given to the petitioner. We accordingly set aside the impugned order and direct that the matter may be decided after the petitioner is given a notice and he is given a reasonable opportunity to be heard, in sccordance with law. The Writ Petition is allowed with costs. Advocate's fee Rs. 100.

16. Petition allowed;