Andhra Pradesh High Court - Amravati
Tanniru Phaneendra Rao vs The State Of Andhra Pradesh, on 17 February, 2020
Author: T. Rajani
Bench: T. Rajani
* SMT JUSTICE T. RAJANI
+ WRIT PETITION Nos. 12340 AND 13245 of 2019
% 17.02.2020
W.P.No.12340 of 2019:
# Tanniru Phaneendra Rao
... Petitioner
Vs.
$ The State of Andhra Pradesh, rep. by its Principal Secretary and
others
.... Respondents
W.P.No.13245 of 2019:
# Thallari Siva Rama Krishna.
... Petitioner
Vs.
$ The State of Andhra Pradesh, rep. by its Principal Secretary and
others
.... Respondents
! Counsel for the petitioners: SRI PAMARTHI KAMESWARA RAO,
FOR SRI PEETA RAMAN,
SRI CHALLA GUNARANJAN,
Counsel for the Respondents: SRI N.ASHWARTHA NARAYANA,
SRI A.K.KISHORE REDDY
<Gist :
>Head Note:
? Cases referred:
1. 1996 4 SCC 17
2. 2016) 8 SCC 471
3. 2014(1) ALD 88
2
HIGH COUIRT OF ANDHRA PRADESH: AMARAVATHI.
WRIT PETITION Nos. 12340 AND 13245 of 2019
Between:
W.P.No.12340 of 2019:
Tanniru Phaneendra Rao
... Petitioner
Vs.
The State of Andhra Pradesh, rep. by its Principal Secretary and others
.... Respondents
W.P.No.13245 of 2019:
Thallari Siva Rama Krishna.
... Petitioner
Vs.
State of Andhra Pradesh, rep. by its Principal Secretary and others
.... Respondents
Date of Judgment Pronounced: 17.02.2020
Submitted for Approval:
SMT JUSTICE T. RAJANI
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the judgments ?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Their Ladyship/Lordship wish to Yes/No
see the fair copy of the Judgment ?
______________
T. RAJANI, J
3
SMT JUSTICE T.RAJANI
WRIT PETITION Nos. 12340 AND 13245 of 2019
COMMON ORDER:
W.P.No.12340 OF 2019:
This writ petition is filed seeking to declare the action of the 5th respondent in considering petitioner's candidature for selection to the post of Stipendiary Cadet Trainee (SCT) Sub-Inspectors of Police (Civil) Men & Women) (SCT-SI-Civil) in Open Category (Police Executive) (OC-PE) instead of considering the same in open category (OC)/BC-A Category, at first instance before choosing to considering the same under OC-PE, basing on his performance and merit in selection process and the subsequent action of the 5th respondent in cancelling his selection unilaterally through Memorandum issued in Rc.No.216/R&T/Rect.I/2018, dated 14.08.2019, as illegal, and also the action of the 5th respondent in not considering his candidature for further selection SCT SI-Civil in Open Category, as illegal.
W.P.No.13245 OF 2019:
This writ petition is filed seeking to direct the 1st respondent to take action for selecting the petitioner for appointment to the post of Stipendiary Cadet Trainee SI of Police (Civil) as per his merit in the selection, pursuant to the notification, dated 01.11.2018, and send the petitioner for training to commence from 12.09.2019 onwards by declaring the action of the respondents in not taking action on the request of the petitioner, dated 23.07.2019, as illegal. 4
2. For the sake of convenience, hereinafter, the petitioner in W.P.No.12340 of 2019 is referred to as 'P1' and the petitioner in W.P.No.13245 of 2019 is referred to as 'P2'.
3. P1 was initially appointed as Police Constable in Zone-III on 18.10.2013 and also was an aspirant for Sub-Inspector of Police (Civil) (SI-Civil) appointment. Generally, if an in-service police personnel like P1 applies to higher posts, they would be provided preference as special category by earmarking 5% of vacancies. It is a kind of paying back to those police executives who have rendered service to department for some reasonable time. If anyone gets merit, his candidature is supposed to be considered as general candidate without treating him as special category. But the same is not done in the instant case. A recruitment notification was issued on 01.11.2018 by the 5th respondent Board for recruiting Stipendiary Cadet Trainee (SCT) Sub-Inspectors of Police (Civil)(Men & Women) (SCT SI-Civil) in Police Department, pursuant to which P1 responded in time through online. Though there was a mistake in online application, due to mistake done by the DTP Center person, immediately after the last date for receiving of online applications is over, it got corrected through online. Clause 19 of the notification speaks about percentage reserved for quotas in Special Categories. Note (C) of (iii)(b) of the said clause 19 speaks that Police Executive would not be considered for the said quota of Police Executive if any punishment is in operation against him. But it did not specify the fact whether that is as on the date of issuing of recruitment notification or not or whether the same is as on the last date of 5 receiving of recruitment notification. There is no bar in the said notification or anywhere saying that in-service Police Executive should not be considered for appointment as SCT-SI-Civil in general category etc. The petitioner underwent the selection process at all levels and stood as one of the most meritorious candidate. In the said selection process, P1 secured 31st rank but in provisional selection list he was shown under OC Police Executive (OC-PE) quota. While things stood, the 5th respondent, at the instance of the 6th respondent issued the impugned Memorandum vide Rc.No.216/R&T/Rect.I/2018, dated 14.08.2019, who cancelled his selection on the pretext that the dealing assistant issued the Service Certificate without verifying the Service Register whereas the candidate was awarded the punishment of postponement of increment for one year without effect on future increments and pension by treating the period of his absence from 01.10.20116 till 01.03.2017 as leave without pay and the punishment was upto 09.05.2019. The respondents have not followed the principles of natural justice.
4. Respondents support their action in canceling the appointment of the P1 on the ground that P1 has suppressed the fact of the punishment being under operation and hence, his cancellation is in accordance with law.
5. P2 is the candidate next to P1 in the selection list. He files this writ petition viz., W.P.No.13245 of 2019 seeking for 6 appointment on the failure of P1 joining the post due to the cancellation of his appointment.
6. The respondents oppose the claim of P2 on the ground that it is not a fall out vacancy and hence, a fresh notification has to be issued in respect of the vacancy which arose due to the cancellation of the appointment of P1.
7. Heard Sri Pamarthi Kameswara Rao, learned counsel appearing for Sri Peeta Raman, learned counsel for the petitioner in W.P.No.12340 of 2019; Sri Challa Gunaranjan, learned counsel for the petitioner in W.P.No.13245 of 2019; Sri N.Ashwartha Narayana, learned Standing Counsel for Home appearing for respondents 1 to 5 in W.P.No.12340 of 2019 and for the respondents in W.P.No.13245 of 2019; and Sri A.K.Kishore Reddy, learned counsel appearing for respondent No.6 in W.P.No.12340 of 2019.
8. There is no dispute that P1 was imposed with the punishment of stoppage of one increment for the charge of unauthorized absence. The notification prescribes that a candidate applying under the category of Police Executive has to specify whether they fall under any of the categories mentioned in the note (C) of such categories. The one applicable to the petitioner is 'any punishment under operation'. The petitioner was imposed punishment of stoppage of one increment without cumulative effect, by virtue of proceedings dated 17.11.2017. Its operation ends by 17.11.2018, unless any other date is specified in the order. The notification is issued on 01.11.2018. Under the said 7 notification, the police constables, head constables, and ASI of police, who are approved probationers and who have completed three years of service as on the date notification, will come under the special category. Under the said clause, a note stating that the candidates, who fall under the categories mentioned therein, will not be considered for quota under Police Executive.
9. The counsel for P1 contends that P1 is eligible even in the open category as he secured sufficient marks and hence, the suppression, if any, cannot come in the way of his selection. But the fact remains that P1 has made an application under the Police Executive quota. By the date of application, P1 is expected to disclose the operation of punishment as required. If such information is not disclosed, it would definitely amount to suppression of the fact. It is only after the process of selection started that the eligibility of P1 would be considered, whether it is in the open category or into Police Executive category.
10. The contention of P1's counsel, with regard to operation of the punishment, is that by the date of making his application, the operation of punishment has ended. Hence, it would not amount to suppression of fact. But the respondents counsel's interpretation with regard to the notification is that the operation of punishment should not be there as on the date of notification. If the punishment is still in operation by the date of notification and if the candidate does not disclose the same, it would amount to suppression of fact. He relies on the date mentioned under clause (3) of the notification, wherein it is specified that the 8 completion of three years service should be as on the date of notification and as per the note pertains to the said clause, it has to be understood that the crucial date would be the date of notification and not the date of application. There is considerable force in the said contention.
11. P1 has obtained a Certificate from the Superintendent of Police, Guntur Rural, wherein it was stated that P1 does not fall under any of the categories mentioned in the note. P1's counsel also submits that the web details regarding the punishment details of P1 show that the operation of punishment is from 17.11.2017 to 16.11.2018. Even if that is taken into consideration, by the date of notification, the punishment stands to be in operation. Subsequently, in further probe of the matter, they called for the details of the punishment of P1 from the Chairman, State Level Police Recruitment Board and by virtue of the Memorandum dated 14.08.2019, the Chairman submitted the details stating that the punishment under currency upto 09.05.2019. The currency of the punishment was extended upto 09.05.2019 as the period of absence from 01.10.2016 to 01.03.2017 was excluded from the period of one year, which is the usual period of operation of sentence in the case of stoppage of one increment without cumulative effect. Hence, based on this memo, P1 was held as having suppressed the fact.
12. The contention of the P1's counsel is that it does not amount to suppression of fact as P1 was under bona fide impression that the date of 9 application is the crucial date and if that is taken as a crucial date, there would not be any suppression on the part of P1. He also contends that there was no clarity with regard to the operation of the punishment even in the department which can be seen from the certificate issued by the SP Rural, which was found to be incorrect subsequently. This court finds some merit in the said argument.
13. Be that as it may, the judgment, which is relied upon by the respondents' counsel rendered by The High Court of Judicature at Hyderabad in W.P.No.3004 of 2005, while holding that the suppression of information relating to the involvement of the petitioner therein, went on to say that if such a candidate was acquitted long back, for instance, more than 5 to 10 years before, and that too of a petty offence, it may be for the employer to decide whether to appoint him or to terminate his service having regard to his performance and other relevant factors. However, such a decision should be fair and should not be arbitrary and mala fide. It also relied on the judgment of the Supreme Court in PAWAN KUMAR VS. STATE OF HARYANA1 wherein it was held that if the conviction or involvement was in traffic, municipal and other petty offences under the Indian Penal Code, committed at an young age, such conviction or involvement could, in a given case, be ignored by an employer. It further held that the candidate, however, is expected to disclose all such information leaving it open to the appointing authority to decide whether to appoint such person, having regard to the gravity of the 1 1996 4 SCC 17 10 offence allegedly committed and proximity of time, having regard to the nature of job for which he is being considered or to be appointed. While considering such candidate, who in all fairness has disclosed such information, the employer should not act mechanically to deny employment or reject application of such a candidate at threshold. It also held that in any case, a candidate having suppressed the information and/or giving false information in respect of his character and antecedents, cannot, as of right, seek an order of appointment contending that he has been acquitted of the case.
14. The ruling, which is relied upon by the petitioner's counsel, is reported in AVTAR SINGH VS. UNION OF INDIA AND OTHERS2 wherein it was held that though a person who has suppressed the material information cannot claim an unfettered right for appointment or continuity in service, but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity, having due regard to facts of the cases. It also held that in a case of trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
15. Hence, going by the ratio of the above judgments and also considering the facts of the case on hand, it can be said that P1 has not wantonly suppressed the information. The non-disclosure seems to be 2 2016) 8 SCC 471 11 only due to the bona fide impression that the operation of punishment should be as on the date of making an application. The charge that P1 faced is for unauthorized absence, which in the considered opinion of this court, is of trivial nature when compared with the cases dealt with by the courts in the above cited judgments, which is the involvement of the candidates in criminal cases.
16. Hence, in view of the above, this court opines that the cancellation proceedings, dated 14.08.2019, are not sustainable and are liable to be set aside.
17. P2 seeks to be appointed in the post in which P1 was appointed, which fell vacant due to cancellation of his appointment subsequently. The Government Pleader, on the other hand, opposes the claim of P2 on the ground that he would be eligible only if it is not a fallout vacancy. He relies on G.O.Ms.No.544, General Administration (Ser-A) Department, dated 04.12.1998, to contend that, fall out vacancy is a vacancy, which arises due to relinquishment and non joining and the fall out vacancies would be filled up only by a fresh notification. The contention of the petitioner's counsel is that the vacancy, which arose out of the cancellation of P1's appointment, would be termed as fall out vacancy and hence, he would be eligible for appointment.
18. The judgment of the High Court of Judicature at Hyderabad reported in GOVERNMENT PLEADER FOR SERVICES-I vs. 12 SMT.USHA N.KIRAN3 supports the contention of the counsel for P2. Vacancy arising out of relinquishment and non-joining involves volition on the part of the candidate whereas the vacancy arising due to cancellation of the post, does not amount to the candidate exercising any volition. Hence, the vacancy, which arose due to the cancellation of the appointment of P1, cannot be termed as fall out vacancy. P2 would be entitled for appointment into the post, which arose due to the cancellation of the appointment of P1. But since W.P.No.12340 of 2019 is disposed of in favour of P1, the claim of P2 does not come for consideration.
19. With the above observations, W.P.No.12340 of 2019 is allowed setting aside the Memorandum issued in Rc.No.216/R&T/Rect.I/2018, dated 14.08.2019, and P1 shall be selected to the post of Stipendiary Cadet Trainee Reserve Sub- Inspectors of Police (APSP) (Men) in Police Department in open category or reserved category, as per his eligibility.
In view of the orders passed in W.P.No.12340 of 2019, W.P.No.13245 of 2019 is dismissed.
As a sequel, the miscellaneous applications pending, if any, shall stand closed.
______________ T. RAJANI, J February 17, 2019 Note: LR Copy to be marked {B/o} LMV 3 2014(1) ALD 88 13 JUSTICE T.RAJANI WRIT PETITION Nos. 12340 AND 13245 of 2019 February 17, 2019 LMV