Andhra Pradesh High Court - Amravati
Thallari Siva Rama Krishna vs The State Level Police Recruitment ... on 24 August, 2020
Author: J.K. Maheshwari
Bench: J K Maheshwari
HIGH COURT OF ANDHRA PRADESH : AMARAVATI
CHIEF JUSTICE J.K. MAHESHWARI
&
JUSTICE LALITHA KANNEGANTI
WRIT APPEAL Nos.249 and 250 of 2020
WRIT APPEAL No.249 of 2020
Thallari Siva Rama Krishna S/o. Hanumantha Rao,
Age 31 years, Occ: Police Constable,
Working at P.S. Yaddanapudi,
R/o. Ballikrava Village and Mandal,
Prakasam District.
.. Appellant
Versus
The State Level Police Recruitment Board,
State of Andhra Pradesh,
Rep. by its Chairman,
Mangalagiri, Guntur District, and others.
.. Respondents
Counsel for the appellant : Sri Challa Gunaranjan Counsel for the respondents : GP for Services WRIT APPEAL No.250 of 2020 Thallari Siva Rama Krishna S/o. Hanumantha Rao, Age 31 years, Occ: Police Constable, PC No.2551, Yaddanapudi Police Station, R/o. Ballikrava Village and Mandal, Prakasam District, Andhra Pradesh.
.. Appellant Versus Tanniru Phaneendra Rao S/o. Subba Rao, Age 27 years, Occ: Police Constable, R/o.3-114, Lankelakurapadu Village and Pos, Muppalla Mandal, Guntur District, Andhra Pradesh and others.
.. Respondents
Counsel for the appellant : Sri Challa Gunaranjan
Counsel for respondent No.1 : Sri P.V.Ramana for Sri P.Kameswara
Rao
Counsel for respondent Nos.2 to 6 : GP for Services.
2 HCJ & LK,J W.A.Nos.249&250_2020 ORAL COMMON JUDGMENT Dt: 24.08.2020 per J.K. Maheshwari, CJ Sri Challa Gunaranjan, learned counsel for the appellant in both the writ appeals.
Sri P.V. Ramana, learned counsel representing Sri P.Kameswara Rao, learned counsel for respondent No.1 in W.A.No.250 of 2020 (writ petitioner in W.P.No.12340 of 2019).
Learned Government Pleader for Services for the official respondents.
Both these writ appeals arise out of the common order dated 17.02.2020 passed by a learned single Judge of this Court in W.P.Nos.12340 and 13245 of 2019; therefore, they are heard analogously and disposed of by this common judgment. W.A.No.249 of 2020 has been filed assailing the dismissal of W.P.No.13245 of 2019 filed by the appellant herein, while W.A.No.250 of 2020 has been filed against the findings recorded in W.P.No.12340 of 2019 filed by respondent No.1-writ petitioner.
The undisputed facts of the case are that in furtherance to the Notification dated 01.11.2018 issued by the State Level Police Recruitment Board, Andhra Pradesh, the petitioner in W.P.No.12340 of 2019 applied for the post of Stipendiary Cadet Trainee (SCT) Sub- Inspector of Police (Civil) in Police Department under the special category of 'Police Executive' (PE), for which 5% quota has been reserved, as specified in Para 19(b)(iii) of the Notification. As 3 HCJ & LK,J W.A.Nos.249&250_2020 required, he submitted the 'Police Executive Service Certificate' in Annexure-V issued by the Superintendent of Police, Guntur Rural, certifying that he is an approved probationer in the rank of Police Constable in the A.P. Police Department and is in service in the said rank in Guntur Unit as on 30.10.2018 and that he does not fall under any of the categories viz., a) any major punishment in the entire service, b) minor punishments - three or more in the entire service,
c) any punishment under operation, d) under suspension or facing an oral enquiry, e) whoever declared the deserter from service for any reason, and f) compulsorily retired or removed from service, as mentioned in the Note of Para 19(b)(iii). It is also not in dispute that he secured 31st rank in the common ranking and was selected in the P.E. Category. Subsequently, it was found that the 'Police Executive Service Certificate' in Annexure-V, produced by the petitioner in W.P.No.12340 of 2019, certifying that he does not fall under any of the aforesaid six categories, was erroneously issued by the competent authority, i.e., Superintendent of Police, Guntur Rural, as he suffered punishment of postponement of increment for one year without cumulative effect on future increments and pension for the period of his absence from 01.10.2016 to 01.03.2017, and the currency of the said punishment was upto 09.05.2019. Therefore, the State Level Police Recruitment Board, through its Chairman, passed an order on 14.08.2019 holding that the petitioner in W.P.No.12340 of 2019, knowing fully well that he was not eligible for Police Executive quota being under currency of the punishment, applied under the said quota, and as stipulated in the Notification, in the event of any 4 HCJ & LK,J W.A.Nos.249&250_2020 information being found false or incorrect or ineligibility being detected at any time even after appointment, the candidate may be discharged from the service forthwith without giving notice. Holding so, the Chairman, State Level Police Recruitment Board, cancelled his provisional selection for appointment to the subject post, against which W.P.No.12340 of 2019 has been filed.
It was the case of the petitioner in W.P.No.13245 of 2019, the appellant, that he is the candidate placed next to the petitioner in W.P.No.12340 of 2019 in the selection list and as the petitioner in W.P.No.12340 of 2019 is found not eligible for appointment to the subject post under P.E. category in view of currency of punishment as on the date of Notification, he submitted representation dated 23.07.2019 to the authorities, requesting to consider his case for appointment to the said post. Aggrieved by the inaction of the authorities on the said representation, he filed W.P.No.13245 of 2019.
Learned Single Judge, while passing the common order impugned, recorded a finding that the writ petitioner in W.P.No.12340 of 2019 has not wantonly suppressed the information, more so, the non-disclosure was only due to bona fide impression that the operation of punishment should be as on the date of making application and not on the date of Notification. It was further observed that the charge of unauthorized absence is of trivial nature. Therefore, the order dated 14.08.2019 passed by the State Level Police Recruitment Board, cancelling his appointment, has been set aside, directing that he shall be selected to the subject post in open category or reserved category, as per his eligibility. While deciding 5 HCJ & LK,J W.A.Nos.249&250_2020 W.P.No.13245 of 2019 filed by the appellant, it was held that the vacancy, which arose due to cancellation of the appointment of the writ petitioner of W.P.No.12340 of 2019, would not be termed as fall- out vacancy and may be available for appointment to the appellant, but in view of the findings recorded in W.P.No.12340 of 2019 in favour of the petitioner therein, the claim of the appellant would not come up for consideration. Assailing the findings in both the writ petitions, these two writ appeals have been preferred as stated above.
We have heard Sri Challa Gunaranjan, learned counsel appearing on behalf of the writ appellant, Sri P.V.Ramana, learned counsel appearing on behalf of the writ petitioner in W.P.No.12340 of 2019, and the learned Government Pleader for Services.
After hearing the learned counsel for the parties and on perusal of the record, it reveals that in the Notification dated 01.11.2018 issued by the State Level Police Recruitment Board, Andhra Pradesh, to fill up various posts that include the posts of SCT Sub-Inspector of Police (Civil) in Police Department, under Para 19, percentage of the quotas in special categories has been specified. Clause (b)(iii) of Para 19 is relevant for the purpose of present case as the claim of both the writ petitioners is based on that category, and is reproduced as thus:
"19. Percentage of Quotas in Special Categories:
a) -----
b) Special Categories: Candidates who claim
reservation/quota under following special categories should satisfy the following condition:-
i) ------
6 HCJ & LK,J
W.A.Nos.249&250_2020
ii) ------
iii) PE (Police Executive): Police Constables, Head
Constables and Assistant Sub Inspectors of Police working in A.P. Police Dept., who are approved probationers and who have completed three years of service as on the date of notification will come under this special category. The period rendered as Stipendiary Cadet Trainee shall not be counted for purpose of service.
Note: Candidates who fall under any of the following categories will not be considered for quota under 'Police Executive' (PE).
a) Any major punishment in the entire service.
b) Minor punishments - three or more in the entire service.
c) Any punishment under operation.
d) Under suspension or facing an oral enquiry.
e) Whoever declared the deserter from service for any
reason.
f) Compulsorily retired or removed from service."
On perusal thereto, it is apparent that any approved probationer in the category of Police Constables, Head Constables and Assistant Sub Inspectors of Police working in the Andhra Pradesh Police Department, who have completed three years of service as on the date of Notification, would fall within the special category of PE (Police Executive), provided he/she does not fall under any of the six categories mentioned in a) to f) of the Note referred above. As per the Notification, the candidate, applying under such quota, is required to submit Police Executive Service Certificate in Annexure-V issued by the competent authority, certifying as to his/her enrolment in the service, declaration of probation and continuing in service as on 30.10.2018, i.e., a day prior to the date of Notification, and further certifying that the candidate does not fall under any of the categories 7 HCJ & LK,J W.A.Nos.249&250_2020 as specified in the Note appended to Para 19(b)(iii) of the Notification. Admittedly, the petitioner in W.P.No.12340 of 2019 submitted such Certificate in Annexure-V issued by the Superintendent of Police, Guntur Rural, dated 09.01.2019, which was later found to be incorrect as the punishment imposed against him was in operation as on 30.10.2018.
It was contended on behalf of the petitioner in W.P.No.12340 of 2019 that the operation of punishment was from 17.11.2017 to 16.11.2018, therefore, by the date of submitting his application, the operation of punishment has ended. It is to be noted that as per Annexure-V certificate, the authority is required to certify about the declaration of probation of the candidate and his continuation in service in the particular rank as on 30.10.2018, as already noted above. Thus, the certification regarding the service particulars of the candidate was sought upto 30.10.2018, meaning thereby, the same date would be relevant even with regard to certification as to whether such candidate would fall under any of the six categories mentioned in a) to f). In view of the same, the plea taken by the petitioner in W.P.No.12340 of 2019 that the last date for submission of application would be relevant to determine as to the currency of punishment, is misplaced and cannot be accepted. Even otherwise, in the counter- affidavit filed by the State Level Police Recruitment Board, through its Chairman, in W.P.No.12340 of 2019, it was clearly stated that the petitioner therein was awarded the punishment of postponement of increment for one year without effect to future increments and pension, vide proceedings dated 17.11.2017, and the same was under
8 HCJ & LK,J W.A.Nos.249&250_2020 currency till 09.05.2019. Thus, even as on the date of submission of application by the petitioner in W.P.No.12340 of 2019, the punishment imposed against him was under operation.
The learned single Judge has not considered the above aspects in right perspective and wrongly held in favour of the petitioner in W.P.No.12340 of 2019, on the ground that he has not wantonly suppressed the information as the certificate was issued by the Superintendent of Police, Guntur, and he was under bona fide impression that the operation of punishment should be as on the date of submission of application, and that the charge of unauthorized absence as alleged is of trivial nature. In the context of the criteria stipulated as per the Notification as discussed above, when the punishment imposed against him was under operation till 09.05.2019, i.e., as on the date of Notification and even as on the date of submission of application, the learned Single Judge ought to have seen as to how he would be considered for appointment under the Police Executive quota.
The Judgment of Hon'ble the Supreme Court in the case of Dipitimayee Parida v. State of Orissa1, relied upon by the learned counsel for the petitioner in W.P.No.12340 of 2019, does not apply to the facts of the present case, because that is a case where marks were given for the marital status of the candidate looking to the situation as on the date of interview, and Hon'ble the Supreme Court, in terms of the policy, said that the Selection Committee could not 1 (2008) 10 SCC 687 9 HCJ & LK,J W.A.Nos.249&250_2020 usurp the jurisdiction of the other and even otherwise, the last date for filing of application would be relevant. Further, relying upon the judgment of Hon'ble the Supreme Court in the case of Ashok Kumar Sonkar v. Union of India2, it is contended that in case of not specifying the cut-off date in the advertisement, the last date for submission of the application form may be relevant. As discussed hereinabove, in the context of Para 19(b)(iii) of the Notification and the certificate as required to be submitted as on 30.10.2018, by which the consideration under special category is made available to the candidates, the said judgment has no application to the facts of the present case. Similarly, the decision of Hon'ble the Supreme Court in Alka Ojha v. Rajasthan Public Service Commission3, is also not relevant, as it deals with the question as to whether the qualifications prescribed in the Rajasthan Transport Subordinate Service Rules, 1963, for the post of Motor Vehicle Sub-Inspector are mandatory and the provisions of Motor Vehicles, Act, 1988, which has no application to the present case, in view of the analysis made hereinabove. Further, the judgment in the case of R.K. Sabharwal v. State of Punjab4, is on the analogy that the reserve category candidates may compete for the non-reserve posts in general category if they have more merit than others, and the said judgment is of no help to the case of the petitioner in W.P.No.12340 of 2019 for the simple reason that once he opted to apply for the post under a particular special 2 (2007) 4 SCC 54 3 (2011) 9 SCC 438 4 (1995) 2 SCC 745 10 HCJ & LK,J W.A.Nos.249&250_2020 category, he cannot ask for appointment in any other category in view of the terms stipulated in the Notification.
To sum up, as already noted above, the petitioner in W.P.No.12340 of 2019 suffered punishment of postponement of increment for one year without cumulative effect and the same was in operation as on the date of Notification, i.e., 01.11.2018 and the certification was required upto 30.10.2018, thus, he was not eligible to be considered for appointment in the special category of Police Executive. Therefore, the State Level Police Recruitment Board has rightly cancelled his appointment vide order dated 14.08.2019. The observation as to suppression of material facts and furnishing false information may not be appropriate because the competent authority issued the Certificate in Annexure-V in his favour. But, in view of the fact that the information furnished in the said Certificate was found to be incorrect, which led to the ineligibility of the petitioner in W.P.No.12340 of 2019 for claiming appointment under the special category of Police Executive, the order of cancellation of his appointment is justified.
In view of the foregoing discussion, we are of the considered opinion that the learned single Judge committed error in setting aside the order of cancellation of appointment and issuing direction for selection of the petitioner in W.P.No.12340 of 2019 to the subject post in open category or reserved category as per his eligibility and the said order is liable to be set aside.
Insofar as the finding recorded in W.P.No.13245 of 2019 filed by the appellant is concerned, the learned single Judge has rightly 11 HCJ & LK,J W.A.Nos.249&250_2020 observed that the vacancy, which arose due to the cancellation of appointment of the petitioner in W.P.No.12340 of 2019, cannot be termed as fall out vacancy and the appellant would be entitled for appointment to that post. However, on account of the order passed in W.P.No.12340 of 2019 in favour of the petitioner therein, it was held that the claim of the appellant would not come up for consideration. But, as already discussed by us, the petitioner in W.P.No.12340 of 2019 was not eligible for appointment to the said post under the special category of Police Executive.
In view of the findings recorded by us upholding the validity of the order of cancellation passed by the State Level Police Recruitment Board against the petitioner in W.P.No.12340 of 2019, as discussed hereinabove, we are of the considered opinion that the appellant, being eligible and the next meritorious candidate available in the special category of Police Executive, would be entitled for appointment in the vacancy, which arose on account of cancellation of the appointment of the petitioner in W.P.No.12340 of 2019 on being found ineligible to apply for the said post, subject to fulfilling the other eligibility criteria.
In view of the foregoing, the common order dated 17.02.2020 passed by the learned Single Judge in W.P.Nos.12340 and 13245 of 2019 is set aside. W.P.No.12340 of 2019 is dismissed, while W.P.No.13245 of 2019 is allowed with a direction to the competent authority to issue appointment order in favour of the appellant/petitioner therein, within a period of one month from the date of communication of this order, as per his merit and after 12 HCJ & LK,J W.A.Nos.249&250_2020 verifying all other credentials as per Rules. It is made clear here that on such appointment, he would not be entitled for backwages but would be entitled to all other consequential benefits.
The writ appeals are allowed as indicated above. In the facts and circumstances, the parties do bear their own costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
J.K. MAHESHWARI, CJ LALITHA KANNEGANTI, J
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13 HCJ & LK,J
W.A.Nos.249&250_2020
CHIEF JUSTICE J.K. MAHESHWARI
&
JUSTICE LALITHA KANNEGANTI, J
WRIT APPEAL Nos.249 and 250 of 2020
(Per J.K. Maheshwari, CJ)
Dt: 24.08.2020
IBL