Andhra Pradesh High Court - Amravati
K.Vykunta Rao, vs State Of Andhra Pradesh, on 11 February, 2020
1
HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
WRIT PETITION No. 14013 of 2019
ORDER:
This Writ Petition is filed for the following relief:
"....to issue A Writ of Mandamus declaring the Proc."Rc.No.647/Trg.2/2019, dated 14.09.2019 issued by the 2nd respondent in seeking to conduct pre- promotional training for ARHCs (AR) fit to act as ARSIs (AR) without finalizing the seniority lists of ARHCs in terms of the directions of the Hon'ble Tribunal in O.A.No.954 of 2019 and batch, dated 17.05.2018 read with 07.02.2019 is as illegal, arbitrary, unjust, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India and consequently set aside the same and direct the respondents not to conduct pre-
promotional training for ARHCs fit to act as ARSIs until and unless finalizing the seniority list of ARHCs as per directions of the Hon'ble Tribunal in O.A.No.854 of 2018, dated 17.05.2018 read with 07.02.2019 and the orders of the Hon'ble High Court in W.P.No.8857 of 2019, dated 04.09.2019 and pass such other and further orders as this Hon'ble Court may deem fit and proper." This Court has heard Sri K. TirupathiGoud, learned counsel for the petitioners and the learned Government Pleader for Services representing the respondents. The petitioners are now posted in the District Armed Reserve and City Armed Reserve. As per the averments in the affidavit they were initially appointed as Andhra Pradesh Special Police (in short "APSP") Constables. As per the orders issued by the Government of Andhra Pradesh in G.O.Ms.No.299, dated 05.10.1999, the Police Constables of 2 APSP, who fulfil certain conditions, are entitled for appointment as Police Constables in Constable (District Armed Reserve, City Armed Reserve, Special Armed Reserved, Central Police Lines). The case of the petitioners is that they satisfied all the requirements. It is their contention that they were appointed in the years 2001, 2004 and 2005 as Armed Reserved Police Constables while their initial appointment as APSP Constables was in between 1984 and 1985. Basing on their interpretation of the Rules, particularly Rule 15 (c) of the Police Subordinate Service Rules (in short "the Rules") they are claiming seniority from the date of their initial appointment in APSP. It is their contention that the impugned proceedings, which are issued on 14.09.2019 by which pre-promotional training of ARHCs (AR) to act as ARSIs (AR) is incorrect, opposed to law, illegal and violative, they categorised G.O.Ms.No.1 (Home), dated 07.01.2016, as an ad hoc rule. They seek a direction to comply with the orders of the A.P. Administrative Tribunal in O.A.No.954 of 2018 read with the orders of this High Court in W.P.No.8857 of 2019.
The order passed in O.A.No.954 of 2018 is as follows:
"2. As could be seen from the facts and rules governing the subject, particularly Rule 15 (c) of the Andhra Pradesh Police Subordinate Service Rules, the transfer of a person from one class or category of the service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purpose of seniority and the seniority of person so transferred shall be determined with 3 reference to the date of his first appointment. therefore, I am of the considered view that the applications, whose names were shown in the list of eligible candidates for being promoted as Sub Inspectors in Armed Reserve are prima facie eligible to be considered taking their service from the date of their first appointment in APSP into criteria. The respondents may count the services of the applicants, that apart of the services rendered by them from 01.01.2008 as per G.O.Ms.No.1 Home (Legal.II) Department, dated 07.01.2016 and service prior to 01.01.2008 as per Rule 15 (c) of the Andhra Pradesh Police Subordinate Service Rules and consider their cases for pre promotional training and shall depute the applicants for training along with other eligible candidates being sent as per Circular C.No.1057/A4/2017 dated 07.05.2018 of the Deputy Inspector General of Police, Visakhapatnam Range, pending further orders in the O.A."
The final order in O.A.No.954 of 2018 was passed later which is as follows:
"9. In these circumstances, all the five Original Applications are allowed directing the official respondents not to proceed with Pre-Promotional Training of Armed Reserve Police Constables/Head Constables into higher ranks, without finalising the seniority in the cadre of Armed Reserve Police Constables/Armed Reserve Head Constables in these District. Vacate Miscellaneous Applications are dismissed. Contempt Applications are closed."
This was placed before a Division Bench of this High Court, which held as follows:
"4. In view of the above submissions, the Writ Petition is disposed of, directing the respondents herein to complete the process, as directed by the Tribunal, vide orders dated 4 07.02.2019 in O.A.No.954 of 2018, within a period of three months from the date of receipt of a copy of this Order".
The counsel for petitioner seeks a direction in line with the above order.
Learned Government Pleader for the respondents on the other hand while conceding that this avenue of promotion, transfer etc., from APSP to AR is open and that the petitioners are eligible for the same, contends that the Rule 15 (e) is the applicable rule and not Rule 15 (c). Learned Government Pleader also argues that the promotions cannot be upset at this stage in view of the fact that the orders were already issued in May, 2019 and 813 candidates were already promoted. Learned Government Pleader for Home also contends that the entire scheme of promotions etc., that was implemented by the respondents is strictly in accordance with the order in the Original Application passed by the A.P. Administrative Tribunal as confirmed by this Hon'ble High Court. Learned Government Pleader contends in essence that the seniority of the petitioners or other similarly placed people, who are allowed transfer to other services cannot be reckoned from the date of the original appointment, but can only be reckoned/counted from the date of their appointment in the particular service to which they were appointed. He also relies on the formula with weightage which has been adopted after a direction was given by a Division Bench of this 5 Court. He argues that the order of the Division Bench alone should be followed.
After hearing both the counsel at length, this Court received small written briefs, which were filed by both the counsel for the petitioners also the learned Government Pleader for services.
The crux of the issue in the opinion of this Court revolvesaround the interpretation of Rule 15 (c) and Rule 15
(e) and the later judicial interpretations of the same. These rules are referred to in the writ affidavit. The same is not fundamental to this case but in view of the long history of the issue and the decided cases this Court is examining the same at the outset. Both the rules are reproduced hereunder:
"Rule 15 (c): The transfer of a person from one class or category of the service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purposes of seniority and the seniority of persona so transferred shall be determined with reference to the date of his first appointment to class or category from which he was transferred. Where any difficulty or doubt arises in applying this sub-rule, seniority shall be determined by the appointing authority.
Rule 15 (e): The seniority of qualified Special Policemen appointed by transfer as Constables in this service shall be determined by the date of their first appointment in this service for purposes of confirmation in vacancies in this service."6
The first and foremost rule of statutory interpretation is the plain grammatical interpretation. Only if there is ambiguity in the words used, this Court will have to look to the other rules of interpretation. If Clause 15 (e) is analysed on the base of the primary rule of statutory interpretation viz., the plain grammatical rule and rule is broken down into its competent parts, it is seen that it is as follows:
a) The seniority of "qualified Special Police men";
b) appointed by transfer as Constables in "this service";
c) shall be determined by the date of their first appointment in "this service"; and
d) for the purpose of confirmation of vacancies in this service.
On the other hand, a plain language interpretation of Rule 15 (c) deals with the transfer of a person for one class of category of service to another class or category carrying the same pay. The seniority of the person so transferred shall be determined with reference to the clause from which he has transferred.
In the opinion of this Court, as can be seen from the facts and circumstances of the case, the petitioners are APSP Constables, who have completed 10 years of service, and are eligible for appointment as Police Constables in other services like District Armed Reserved, City Armed Reserved Police, Special Armed Reserved or Central Police Lines. Therefore, they are seeking seniority on the basis of their past record 7 into a new category or class. If Rule 15 (e) is closely examined, it deals with case of "qualified special policemen"
who are appointed by transfer "in this service". Therefore, Rule 15 (e) will apply only to qualified special policemen, who are appointed by transfer in this service. Hence, on a plain language interpretation, this Court finds that it is the Rule 15
(e) that will be applicable and not Rule 15 (c) as urged by the learned counsel for the petitioners.
Apart from this, this Court notices that the prayers are also to act as per the directions of the Tribunal in O.A.No.954 of 2018, dated 17.05.2018 read with orders of the High Court in W.P.No.8857 of 2019, dated 04.09.2019.
If the order in O.A.No.954 of 2018 is examined it is clear that in the said O.A., the prayer was for sending the petitioners to pre-promotional training of APRP etc., without finalising of their seniority. Thereafter the matter was taken to the High Court of Andhra Pradesh wherein the Hon'ble High Court of Andhra Pradesh in W.P.No.8857 of 2019 directed the respondents to complete the process as directed in O.A.No.954 of 2018.
In reply to this, learned Government Pleader appearing for the services draws the attention to the order in O.A.No.10216 of 2008 and Batch by the A.P. Administrative Tribunal and the order in W.P.No.21610 of 2007 of Batch passed by the Division Bench of this Court against the orders 8 dated 23.08.2007 in O.A.No.2352 of 2007.If the order in O.A.No.2352 of 2007 dt.23.08.2007 is examined, it is obvious that both Rule 15 (c) and 15 (e) of the Police Subordinate Rules were examined by the Tribunal in a case filed by similarly placed constables. After extracting Rule 15 (c) and 15 (e), the Tribunal held that Rule 15(c) relates to administrative transfer only whereas, Rule 15 (e) relates to the transfer of Special Policemen to other services. After considering Rule 15 (e), the Tribunal held that the action of the respondents in counting the seniority of the unofficial respondents from the date of their initial appointments as per Rule 15 (c) is illegal. Therefore, the impugned order by which the seniority was determined from the date of their initial appointment was set aside. The interpretation given to Rule 15 (e) is that their services will only have to be counted from the date of their joining in the transferred place. The Division Bench of Andhra Pradesh High Court considered the orders passed in this O.A. along with other OAs like O.A.No.10216 of 2008 wherein the seniority was directed to be counted as per Rule 15 (e) only. In the batch of Writ Petitions bearing W.P.No.21610 of 2007 and batch, orders were passed on 08.10.2013. In page 12 of the order it is held as follows:
"Even according to the procedure contemplated under G.O.Ms.No299, the appointment of the petitioners is only through transfer. It is, certainly, otherwise than through direct recruitment. Once the transfer is from one service to another, it is fundamental that the person, who enters through such a procedure, must 9 take the seniority, immediately after the direct recruits of the contemporary period, or at least from the date of their entry into that service. The service rendered by such persons in their parent organization can, certainly, by counted towards pension and other benefits. In a given case, even pay protection can be extended. However, the seniority of the persons, who were already working in the service to which those appointed in other service are transferred, cannot be adversely effected."
The Court clearly held that the placement of hundreds of constables, above the constables who are already working in the ARs for decades cannot be countenanced either in law or in logic. Thereafter, while disposing of the Writ Petition the Division Bench in W.P.No.21610 of 2007 passed an order as follows:
"(a) Upholding the orders passed by the Tribunal in the respective O.A.,
(b) directing that the Government shall consider the feasibility of evolving a formula to extend the benefit of weightage of service rendered by the petitioners i.e., the Constables appointed to AR by transfer from special battalions, subject to certain limit, duly taking into account the interests of the Constables appointed through direct recruitment and other modes over the period."
It is also worthwhile noting that Rule 15 (e) has been deleted subsequently. However, pursuant to the orders of the Division Bench referred to above, a committee was constituted to fix the seniority for police constables, Sub- Inspectors, who are appointed by transfer and conversion. A formula was evolved by which that the transferred people 10 would be given weightage of one year for every two years of completed services subject to a maximum of seven years. This formula was approved by the Government by issuing G.O.Ms.No.1, dated 07.01.2016. As submitted by the learned Government Pleader basing on this the seniority list was revised across the Statefrom the year 2008 onwards and transfers were also affected.
In the Writ Petition No.21610 of 2007 and Batch the Division Bench of this High Court clearly held that since there is a transfer from one service to another, the seniority in terms of Rule 15 (e) can only be determined with reference to the appointment in that service. The petitioner relied upon O.A.No.954 of 2018, which is pronounced on 17.05.2018.In O.A.No.953 of 2018 the direction was only given to finalise the seniority and the respondents were directed not to proceed with pre-promotional training of ARPC/HC into higher ranks without finalising the seniority. O.A.Nos.953 and 954 of 2018 and other matters on which the petitioners rely upon did not actually consider the order passed by the Division Bench in W.P.No.21610 of 2007 and batch and also the order passed in O.A.No.2352 of 2007 by the very same Administrative Tribunal on 23.08.2007. Both in O.A.No.2352 of 2007 and in W.P.No.21610 of 2007 and Batch of the Division Bench, the issue that is raised is squarely covered. As pointed out earlier in O.A.No.2352 of 2007 the Tribunal held that the seniority which was decided considering the past service (from the date 11 of initial appointment) in terms of Rule 15 (c) was held to be bad. The issue that fell for consideration before the Tribunal is about the interpretation and applicability of Rule 15 (c) and 15 (e).Interpreting the Rules the Tribunal held Rule 15 (c) applies to administrative transfer and Rule 15 (e) applies to transfer to other services. This was confirmed by the Division Bench in W.P.No.21610 of 2007 and batch. The Division Bench very clearly held that the services rendered by a person in their parent organisation can only be counted towards pension and other benefits and even pay protection but it cannot be used to supersede or to overtake the persons who have already been rendering services in their parent organisation. The Division Bench noticed that G.O.Ms.No.299 by which the appointment and transfer of constables was permitted did not confer any weightage on them on the basis of their services. The Division Bench also noticed that such practice is in vogue in other departments of Government, particularly in Engineering Department. Ultimately, it held that placement of these constables above the constables who are already working in armed reserved for years together cannot be countenanced either in law or in logic but to bring about a balance the direction was given to consider the feasibility of evolving a formula. This order of the Division Bench has become final. Pursuant to the final order a committee was constituted to suggest a formula. This formula was accepted and G.O.Ms.No.1 (Home) was issued. 12 The petitioner states that this rule is an ad hoc rule and is applicable only for those who are transferred after 01.01.2008 only. He states that the seniority fixed as per Rule 15 (c) is valid and G.O.Ms.No.1 is not applicable to the petitioners. This Court is however of the opinion that the Division Bench of High Court of Andhra Pradesh has clearly and categorically interpreted the rules. The order in O.A.No.954 of 2018, dated 17.05.2018, in the opinion of this Court did not consider the judgment passed by the Division Bench. Even in O.A.No.953 of 2018 the Tribunal did not consider the interpretation of Rules 15 (c) and 15 (e). As far as the Division Bench of this High Court W.P.No.8857 of 2019 is concerned it merely gave further directions for preparations of seniority lists. Hence, this Court hold that the order of the Division Bench in W.P.No.21610 of 2007 and Batch lays down the correct position.
Without reference to the above, for the actual preparation or the methodology to be used, this Court is of the opinion that it is the interpretation in O.A.No.2352 of 2019 as confirmed by the Division Bench in W.P.No.21610 of 2007 and Batch that will prevail for the current issue. In this W.P.No.21610 of 2007, the Hon'ble High Court directed that a weightage formula should be evolved. Based on this order the committee gave recommendations which led to go G.O.Ms.No.1 and the consequent actions. In view of the clear pronouncement of law on clauses 15 (c) and 15 (e) by the 13 Division Bench and the further formula evolved as per the Division Bench direction only the petitioners cannot claim that their seniority should be fixed from the date of their initial appointment in APSP and as per Rule 15. This plea is not available to them.
Hence, this Court is of the opinion that there are no merits in the Writ Petition and holds that the writ petitioners are not entitled to any relief as prayed for.
Secondly, settled seniority lists should be very highly interfered as per the settled law on the subject i.e., B.S.Bajwa and another v State of Punjab1.
Forall these reasons the Writ Petition is liable to be dismissed.
Accordingly, the Writ Petition is dismissed. No order as to costs.
Miscellaneous petitions, if any, pending shall also stand dismissed.
__________________________ D.V.S.S. SOMAYAJULU, J Date:11.02.2020.
Ssv 1 (1998) 2 SCC 523