Andhra Pradesh High Court - Amravati
B.Anka Rao, vs The State Of Andhra Pradesh, on 19 July, 2024
THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
WRIT PETITION No. 7930 OF 2020
1. This writ petition is filed under Article 226 of the Constitution of India,
claiming the following relief:
"to issue Writ of Mandamus declaring the Memo No 274P/Ser
II/A1/20192 dated 18.02.2020 of the 1st Respondent and the
consequential Proceedings C No 2839/A1/2018 dated 28.02.2020 of the 3rd Respondent as arbitrary illegal in violation of Article 14 and 16 of the Constitution of India in violation of Rule 10 of Andhra Pradesh Police Civil Sub Ordinate Service Rules and contrary to the law laid down by the Honble Apex Court and consequently direct the Respondents to fix the seniority of the Petitioners in terms of Rule 10 of Andhra Pradesh Police Civil Sub ordinate Service Rules;"
2. Brief facts of the case are that, the petitioners previously worked as AR/APSP Police Constables and were probationers in the said category. The Police Recruitment Board issued Notification R.C.No.8/R&T/Gen-2/2008 dated 19.03.2008 for recruitment of Police Constables Civil and the petitioners have applied to the said posts and got selected. The petitioners were not sent for induction training along with the other selected candidates on the alleged ground that they have not disclosed their previous employment particulars, though they have mentioned the same in the annexure. The Government 2 NV,J W.P.No.7930 of 2020 issued G.O.Ms.No.85 Home (Legal-II) Department dated 07.02.2009 relaxing the condition of disclosing previous employment as required under Para 3(G)(i) of the Andhra Pradesh Police (Stipendiary Cadet Trainee) Rules, 1999. The petitioners were deputed for induction training on 17.11.2009 and they have completed the training and reported for duty on 28.10.2010. As the respondents are preparing the seniority list based on the completion of training without considering the marks secured as per the orders of the Government, the petitioner submitted representation to fix their seniority by interspersing them on par with their batchmates of 2009. The matter was referred to the Government and the Government called for remarks and records from Respondent Nos.2 to 4 to examine the issue.
3. While so, the 3rd respondent published a provisional Seniority List of Police Constables of 2009 batch. As the names of the petitioners were not included in the provisional seniority list, the petitioners submitted a representation to include them in the seniority list as per the marks/merit obtained. The 3rd respondent published another provisional seniority list on 31.12.2018 wherein the petitioners were assigned seniority below to the candidates who were sent for training on 17.01.2009 contrary to Rule 10 of the Rules. The petitioners submitted representation to assign them seniority based on the marks as per G.O.Ms.No.32 Home (Legal-II) Department dated 3 NV,J W.P.No.7930 of 2020 07.02.2019 and Rule 10 of the Rules. When the respondent sought to sent the juniors of the petitioners to training to act as Head Constables without considering their claims, the petitioners filed W.P.No.15843 of 2019 and this Court disposed of the writ petition directing the respondents to consider the representation and ordered that till such time promotions shall not be effected based on the seniority list dated 03.09.2019. Thereafter, the 3rd respondent published another seniority list and called for objections and appeals. The petitioners represented their grievance to the 3rd respondent to intersperse their seniority with their batchmates of 2009.
4. While the matter stood thus, the Government issued Memo No.274(P)/SER.II/A1/2019-2 dated 18.02.2020 rejecting the request of the petitioners to assign seniority on the basis of the marks/merit obtained. The 3rd respondent issued the consequential Memo No.2839/A1/2018 dated 28.02.2020, rejecting the request of the petitioners to intersperse them as per the marks/merit secured by them. Challenging the action of the 1st respondent in issuing Memo No.274(P)/SER.II/A1/2019-2 dated 18.02.2020 and 3rd respondent in issuing consequential Memo No.2839/A1/2018 dated 28.02.2020, the present writ present is filed.
5. Respondent No.3 - Commissioner of Police, Vijayawada City filed Counter affidavit on behalf of other respondents also, denying material 4 NV,J W.P.No.7930 of 2020 allegations, inter alia, contending that, the petitioners were selected as Civil/AR PCs in the Notification Rc.No.8/R&T/Gen-2/2008 dated 19.03.2008 issued by the Chairman, SLPRB, Hyderabad. Some of the petitioners were relieved from their previous units and reported in the unit for induction training. But, as per the orders of SLPRB, they were not sent for training as they suppressed the material facts of their previous/present employment in State. As per Para 3(G)(i) of the Andhra Pradesh Police (Stipendiary Cadet Trainee) Rules, 1999 suppression of material facts either in the application form or in the attestation form is a disqualification for appointment. Because of this rule in vogue, the petitioners were not sent for training along with the 2009 batch. The remaining (regular batch) candidates were sent for training on 17.01.2009 and after completion of induction training they were appointed with effect from 04.11.2009.
6. It is submitted that, the Government issued a special relaxation vide G.O.Ms.No.85 dated 07.02.2009 to appoint the selected candidates of the Notification (nearly 627 candidates) who had suppressed the information about their previous employment as required under Para 3(G)(i) of the Andhra Pradesh Police (Stipendiary Cadet Trainee) Rules, 1999, subject to condition that an affidavit/undertaking of their previous employment be taken from these candidates that they were honorably discharged from the previous service and 5 NV,J W.P.No.7930 of 2020 the concealment of fact did not jeopardize the interest of Government at any point of time, and if anything adverse comes to the notice of Government, they shall be liable for necessary action.
7. It is submitted that, Memo C.No.24/A2/2008 dated 17.11.2009 was issued stating that the petitioners were provisionally selected to the post of SCTPC Vijayawada City and were sent for basic training schedule from 23.11.2009. After completion of their induction training, they are appointed regularly with effect from 27.08.2010 and accordingly, seniority list was communicated to the petitioners.
8. It is submitted that, the petitioners made a request to fix their seniority on par with batch mates of Civil PCs of 2009 as per the marks obtained in PTC and basing on the facts and records, the DGP, AP vide letter C.No.926/E3/2018 dated 01.12.2019 sent reply stating that the representation of 2009 supplementary batch PCs/petitioners herein to fix seniority on par with batch 2009 Civil PCs by interspersing them as per the marks/merit secured cannot be considered, as they were not sent for training along with 2009 batch, due to their fault in suppressing the facts of their previous employment. On the above facts, the respondents requested to dismiss the writ petition. 6
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9. During hearing, Sri K.S. Murthy, learned Senior Counsel appearing for Sri M. Siva Kumar, learned counsel for the petitioners would submit that the petitioners herein were meritorious and they are all the persons who were sent for training on 17.01.2009 and they were promoted as Head Constables. Some of them were also further promoted as Assistant Sub Inspectors. Since the petitioners are meritorious than the persons who were already promoted as Head Constables as well as Assistant Sub Inspectors, the petitioners shall be considered on par with them, pursuant to G.O.Ms.No.85 Home (Legal-II) Department dated 07.02.2009.
10. Learned Senior Counsel further contended that, even though the petitioners are meritorious as per the merit list of the selection, they were inducted and sent to training as Civil Constables on 04.11.2009 and they were placed after all the candidates who were sent to training on 17.01.2009 without observing the selection of merit as per the Notification. He further contended that, the persons selected pursuant to a particular notification even though they were inducted in different dates, but the seniority should be reckoned as per the merit list of the selection, but not the criteria of date of joining or date of induction. Therefore, in view of the peculiar facts and circumstances of the case, the petitioners were inducted at later stage i.e. 04.11.2009, but they are meritorious as per the merit list of selection. 7
NV,J W.P.No.7930 of 2020 Therefore, their seniority should be reckoned as per the merit list pursuant to the same selection notification. He further submits that, once the mistake of fact alleged to have been committed by the petitioners was considered even on sympathetic or humanitarian basis and allowed the petitioners to undergo training of civil constables, because the mistake which was already pardoned, they cannot be denied their promotion on the ground of the same mistake which was forgiven by the competent authority.
11. In support of his contention, learned Senior Counsel placed reliance upon the judgments of the Hon'ble Supreme Court of India in Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others1; State of West Bengal vs. Mitul Kumar Jana2 and judgment of the Division Bench of High Court of Andhra Pradesh in Shaik Ahmmad vs. The State of A.P3 and requested to grant the relief prayed in the writ petition.
12. On the other hand, learned Government Pleader for Services-I would submit that, the petitioners suppressed the material facts of their previous employment which is a disqualification for appointment as per Rule 3(G)(i) of the A.P. Police (Stipendiary Cadet Trainee) Rules, 1999. Non-disclosure of material facts is a serious offence in service law jurisprudence. It is contended 1 (1978) 1 Supreme Court Cases 405 2 Civil Appeal No.8510/2011 dated 22.08.2023 3 WP No.21489 of 2012 dated 18.08.2023 8 NV,J W.P.No.7930 of 2020 that the petitioners were not sent for training on 17.01.2009 and they re-joined in their previous units. As per G.O.Ms.No.85 dated 07.02.2009, being a special relaxation, the petitioners were sent for induction training on 17.11.2009 and appointed with effect from 27.08.2010 after successful completion of training.
13. Learned Government Pleader would further contend that, the seniority of the petitioners was fixed in terms of Rule 11 of the A.P. Police Stipendiary Cadet Trainee Rules and Rule 10 of the Special Rules of A.P. Police (Civil) Subordinate Service Rules, basing on the total marks secured by them at the time of recruitment examination as well as at the end of training at PTC, both indoor and outdoor. Learned Government Pleader submits that, G.O.Ms.No.85 dated 07.02.2009 is a special relaxation to 627 candidates in the entire State before bifurcation and the petitioners raised objections in the year 2018 i.e. after lapse of 8 years, which is not permissible to revise their seniority as per Government Circular Memo No.57759/Ser.A/2004-1 dated 20.05.2004, wherein it was clarified that "no request for revision of seniority for a period of which is more than 3 years old shall be considered. Since the regular batch of 2009 year is getting promotions, who were sent for training on 17.01.2009, the petitioners have filed the present writ petition after lapse of eight years, as 9 NV,J W.P.No.7930 of 2020 such the request of the petitioners cannot be considered as per the rules in vogue and requested to dismiss the writ petition.
14. Heard Sri K.S. Murthy, learned Senior Counsel for the writ petitioners, learned Government Pleader for Services-I and perused the material available on record.
15. Apparently, the Chairman, State Level Police Recruitment Board, A.P., Hyderabad has reported that, a total of 15,621, posts of Stipendiary Cadet Trainee Police Constables (Civil/AR/APSP) and Constables in SPF Department were filled up in pursuance of Notification issued vide Rc.No.8/R&T/Gen-2/2008 dated 19.03.2008. Out of the said 15,621 posts, nearly 627 candidates suppressed facts of their employment (previous/present) in State or Central Government/ undertaking. Whereas, as per Para 3(G)(i) of the Andhra Pradesh Police (Stipendiary Cadet Trainee) Rules, 1999 suppression of material facts either in the application form or in the attestation form is a disqualification for appointment. Therefore, the cases of the petitioners and other similarly situated persons were not considered.
16. Thereafter, the petitioners and other similarly situated persons made request to the Government not to cancel/disqualify the appointments on the 10 NV,J W.P.No.7930 of 2020 mere ground that the petitioners have suppressed the information relating to their previous present employment.
17. After considering the representations of the petitioners, the Government issued a special relaxation vide G.O.Ms.No.85 dated 07.02.2009 relaxing 627 candidates in the entire State before bifurcation. The special relaxation reads as follows:
"Government after careful examination of the matter hereby issue a special relaxation to appoint the selected candidates of notification 3rd read above, who have suppressed the information with regard to their previous employment as required under 3(G)(i) of the Andhra Pradesh Police (Stipendiary Cadet Trainee) Rules, 1999, subject to the condition that an affidavit/undertaking of their previous employment be taken from these candidates that they are honorably discharged from the previous service and the concealment of fact does not jeopardize the interest of Government at any point of time, and if anything adverse comes to the notice of Government, they shall be liable for necessary action."
18. It appears that the petitioners have suppressed the material facts that they were already recruited as Armed Reserve Constables and submitted their applications pursuant to the notification for selection as Civil Constables. After their selection, their appointment was deferred for some time on the ground 11 NV,J W.P.No.7930 of 2020 that they suppressed the material fact in their applications. In the meanwhile, the regular selected candidates were sent for training on 17.01.2009, which is the date of joining of the first batch. While so, the petitioners and similar situated persons submitted a representation to the Government to consider their cases.
19. Admittedly, in the case on hand, the petitioners were admitted into the Police Department on 27.08.2010 and they were sent to training on 22.11.2009, whereas, the first batch who were duly selected, they were sent for training on 17.01.2009 and they were inducted into the police department on 04.11.2009. Therefore, even though the petitioner and other candidates who were selected pursuant to the same notification, they were appointed on different dates.
20. The selected first batch candidates have completed their training 10 months before to the petitioners herein. Therefore, the general anology as contended by the learned Senior Counsel appearing for the petitioners that the seniority among same selection should be in accordance with the merit list of the same selection cannot be made applicable in the present facts and circumstances of the case.
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21. Rule 16 (a) of the Andhra Pradesh State and Subordinate Service Rules deals with commencement of probation for direct recruits and Rule 16(c) deals with Period of Probation. For better appreciation of the case, Rule 16(a) & (c) are extracted hereunder:
16. (a) COMMENCEMENT OF PROBATION FOR DIRECT RECRUITS: A person appointed in accordance with the rules, otherwise than under rule 10, by direct recruitment shall commence his probation from the date of his joining the duty or from such other date as may be specified by the appointing authority: Provided that a person having been appointed temporarily under rule-10 to a post in any service, class or category or having been so appointed otherwise than in accordance with the rules governing appointment to such post, is subsequently appointed to the same post, in the same service or class or category, in the same unit of appointment, in accordance with the rules, shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine, subject to the condition that his commencement of probation from an earlier date shall not adversely affect any person who has been appointed earlier or simultaneously, to the same service, class or category in the same unit.
(c) Period of Probation:- Unless otherwise stated in the special rules or in these rules, the period of probation shall be as follows:-
(i) Every person appointed by direct recruitment to any post shall, 13 NV,J W.P.No.7930 of 2020 from the date on which he commences his probation be on probation for a period of two years on duty within a continuous period of three years. (ii) Every person appointed to any post either by promotion or by transfer (not by transfer on tenure) shall, from the date on which he commences his probation, be on probation for a period of one year on duty within a continuous period of two years. (iii) A probationer in any category, class or service shall be eligible to count for probation his service in a higher category of the same service or class, as the case may be, or in any other service (State or Subordinate Service) towards his probation in the former service, to the extent of the period of duty performed by him in the latter service during which he would have held the post in the former service but for such appointment in the latter service.
22. Probation for the first batch of candidates was declared on 04.11.2019. As per Rule 16 (a) & (c), the first batch of candidates were far ahead than the petitioners whose probation was declared on 27.08.2010. Therefore, the claim of the petitioners cannot be accepted and their claim is liable to be rejected.
23. One of the contention raised by the learned Senior Counsel for the petitioners that the services of the petitioners come under the purview of A.P. Police (Stipendiary Cadet Trainee) Rules, 1999 and the provisions governing the Andhra Pradesh State and Subordinate Service Rules are not applicable to the petitioners, since, A.P. Police (Stipendiary Cadet Trainee) Rules, 1999 is 14 NV,J W.P.No.7930 of 2020 a special enactment. Whereas, learned Government Pleader contends that, wherever the A.P. Police (Stipendiary Cadet Trainee) Rules, 1999 are not available or silent in respect of any particular issues, then the Andhra Pradesh State and Subordinate Service Rules are applicable. Therefore, in the present facts and circumstances of the case, A.P. Police (Stipendiary Cadet Trainee) Rules, 1999 are silent as such the Andhra Pradesh State and Subordinate Service Rules are applicable. Therefore, this Court is of the view that, in the absence of A.P. Police (Stipendiary Cadet Trainee) Rules, 1999, it is right enough that the Andhra Pradesh State and Subordinate Service Rules should make applicable even in respect of Department of Police also.
24. In view of my foregoing discussion, the contention of the petitioners is rejected, therefore, there is no need of interspersing the present seniority list already published by the 1st respondent.
25. In the result, writ petition is dismissed. No costs.
26. Consequently, miscellaneous applications pending if any, shall stand closed.
_____________________________________ JUSTICE VENKATESWARLU NIMMAGADDA Date:19.07.2024 SP 15 NV,J W.P.No.7930 of 2020 THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA WRIT PETITION No. 7930 OF 2020 Date:19.07.2024 SP