Judgment:
HONOURABLE Sr.JUSTICE L.NARASIMHA REDDY AND HONOURABLE Sr.JUSTICE CHALLA KODANDARAM WRIT PETITION Nos.21610 of 2007 and batch 08-10-2013 Md.Saiduddin and others...Petitioners K.Venkatesam and others....Respondents Counsel for the petitioneRs.Sr.C.Srinivasa Baba, Sr.G.Vidhyasagar Smt.
M.Panduranga Rao Govt.Pleader for Services-II Counsel for respondents: Sr.M.Surender Rao, Smt.
K.Rajyalaxmi, Sr.K.Siva, Sr.D.Balakishan Rao, Govt.Pleader for Services-I GIST HEAD NOTE ?.Cases referred HONOURABLE Sr.JUSTICE L.NARASIMHA REDDY AND HONOURABLE Sr.JUSTICE CHALLA KODANDARAM WRIT PETITION Nos.21610, 24847 of 2007, 26765 of 2011, 31595,33217 of 2012 and 18254 of 2013 Common Order:
(Per Hon'ble Sr.Justice L.
Narasimha Reddy) In this batch of writ petitions, as common questions of fact and law are involved, they can be disposed of through common order.
The genesis for these proceedings is an order dated 23.08.2007 passed by the A.P.Administrative Tribunal(for short, ".Tribunal".) in O.A.No.2352 of 2007.
That, in turn, was filed questioning the seniority list of the post of Police Constables in the District Armed Reserve (for short,".DAR".).Medak District, communicated through a memo dated 20.09.2006 and consequential memo dated 07.10.2006.
W.P.No.24847 of 2007 is filed by the Government challenging the orders in O.A.2352 of 2007 and W.P.No.21610 of 2007 is filed by the third parties to O.A., O.A.No.8213 of 2008 and O.A.No.10126 of 2008 and others were filed by the persons working in the Armed Reserve (for short, ".AR".) of other districts.
Those O.As.
were allowed through common order dated 09.09.2011, following the order in O.A.No.2352 of 2007 by DAR of Warangal.
O.A.7233 of 2012, filed on the same lines was allowed by the Tribunal on 03.10.2012.
While W.P.No.33217 of 2012 is filed by the Government against the order in O.A.No.8312 of 2008, W.P.No.26765 of 2011 is filed by the 7th respondent onwards in O.A.No.10216 of 2008.
Similarly,W.P.No.18254 of 2013 is filed by the Government against the orders in O.A.No.7233 of 2012, other respondents in that O.A.filed W.P.No.31595 of 2013.
The AR Wing of A.P.Police and other connected Wings used to be governed by the special rules of the Andhra Pradesh State Police Subordinate Service Rules, 1996 (for short, 'Rules') framed in G.O.Ms.No.1263GA/(Rules)/Department, dated 26.08.1959.
In the year 1997, the AR Special Armed Wing was carved out of it, through Rules framed in 1997.
The Civil Wing of the police was constituted as separate entity through Rules framed in G.O.Ms.No.270 dated 02.04.1990.
The appointment to the post of Constables in the AR used to be through various methods.
While for sometime, it was exclusively through direct recruitment, during the other times, it was partly by direct recruitment and partly through appointment by transfer from different sources, at the stipulated percentages.
The Government issued G.O.Ms.No.299, Home, (Pol.
D) Department, dated 05.10.1999, providing for the recruitment of constables in the AR exclusively by transfer from A.P.Police battalions.
Through the said G.O., the Rules in G.O.Ms.No.1263 GA/(Rules)/Department, dated 26.08.1959 were amended.
The Constables from the Special Armed Reserve Battalions, on completion of ten years of service in that category, were made eligible to be appointed by transfer as Constables in the AR.
Consequent on such appointments, seniority lists were published in the respective districts.
The Constables that were transferred or received from the battalions were interpolated in the seniority list, by taking into account, the date of their initial appointment, in the respective battalions.
Thereby all of them were shown en bloc, as seniors to the Constables in the AR, appointed through direct recruitment.
Therefore, the Constables, directly recruited to AR in the respective districts, filed the O.As.
challenging the seniority list.
Their contention was that the inter se seniority among the constables is to be determined according to Rule 15-e of the Rules, which directs that the Constables, that are appointed on transfer from special battalions, shall take their seniority from the date of confirmation in the vacancies in the AR Service and not from the date of their initial appointment in that special battalions.
The O.As.
were opposed by the constables who were appointed by transfer from the special battalions.
The plea of the respondents was that their appointment to the AR was not on the basis of any individual proceedings, but on the basis of policy decision taken by the Government.
Their contention was that they have been appointed as Constables in the ordinary course, but were drawn to the special battalions without their consent; and taking into account onerous nature of duties performed by them in the combing operations etc., the Government has taken a policy decision through G.O.Ms.No.299, dated 05.10.1999, providing for their shifting to the AR.
The Government has also made an attempt to sustain action taken by them.
The Tribunal allowed O.A.No.2352 of 2007 through its order dated 23.08.2007, taking the view that the seniority of the Constables of the special battalions transferred to AR must be determined, with reference to Rule 15-e of the Rules and not 15-c thereof.
Other O.As.
filed by the Constables, directly recruited to the A.R.from various districts, were allowed, following the order in O.A.No.2352 of 2007, dated 23.08.2007.
The arguments, on behalf of the petitioneRs.are advanced by the learned Government Pleader for Services I and II, Sr.G.
Vidhyasagr, C.
Srinivasa Baba and Sr.M.
Pandu Ranga Rao, learned counsel.
According to them, the circumstances that warranted the issuance of G.O.Ms.No.299 are mentioned in the G.O.itself and a special mechanism was evolved by the Government, to compensate the constables, who worked in the special battalions, by making them part of AR.
They contend that since the Constables were drawn to the battalions for certain special purposes, they are entitled to be extended the benefit of that service, when they are shifted to AR.
It is also pleaded that the placement of the Constables in the battalions, at the relevant point of time, was not on the basis of any options exercised by the Constables or through any specific process and realizing that the Constables drawn to special battalions have undergone hardship, a compensatory step was taken.
They plead that Rule 15-c of the Rules gets attracted on the facts of the case, since it is not appointment on transfer in the ordinary parlance but en bloc shifting of a category of Constables to the AR, and that such move cannot be said to have caused prejudice to the constables appointed to AR through direct recruitment.
It is also pleaded that taking into account, the potential of Rule 15-e of the Rules to cause hardship to the Constables of the special battalions, the Government has repealed the said provision in the recent past.
The learned counsel for the respondents, on the other hand, submits that the AR is a separate service by itself and specific rules are framed, prescribing method of recruitment to it and providing it for other conditions of service.
They contend that the entry into service can be only through the modes prescribed under Rule 6 of A.P.Special Subordinate Service Rules namely direct recruitment, promotion or recruitment by transfer, and there cannot be any other method of entry into service.
They submit that the appointment by transfer from other departments is not alien to the AR service.
They contend that it was only for certain period, that the appointment of Constables in AR was exclusively through direct recruitment and for rests.
According to them, even if the appointment as Constables is exclusively through transfer of Constables from special police battalions, it partakes the character of appointment by transfer and the service of the persons, who appointed in the AR, has to be counted from the date of entry into that organization/service.
Learned counsel submits that whatever may have been the intention in issuing G.O.Ms.No.299, dated 05.10.1999, it cannot nullify or redefine the principles of reckoning the seniority.
He submitted that the Tribunal has taken the view, in holding that the situation is governed by Rule 15-e of the Rules and not Rule 15-c.
As observed in the preceding paragraphs, the appointment to the post of Constables in the AR was not uniform, over the period.
It ranged from the appointment exclusively through direct recruitment, to one of exclusively appointment by transfer.
In between, there was admixture of both.
Relevant rule was amended many times.
Contesting respondents in the respective writ petitions i.e.applicants in the O.As.
were the Constables who were appointed through direct recruitment, from time to time.
The petitioners herein (except in the writ petitions filed by the Government).on the other hand, were initially appointed as Constables and were drawn to the special battalions.
Earlier, certain percentages of posts of Constables in the A.R.were earmarked for appointment by transfer from A.P.special battalions and other organizations.
The Government issued G.O.Ms.No.299, dated 05.10.1999 providing for appointment of Constables to A.R.exclusively by transfer of the Constables in the special battalions, subject to their having ten years of service and fulfilling eligibility criterion.
Necessary amendments were carried out to Annexures - I and II, appended to the Rules.
Appointment on transfer of the Constables of special battalions is the only method of recruitment is stipulated as the only method.
The G.O.stipulates the qualifications as under;- AMENDMENTS1 In the said Rules, in Annexure -I, under ".Class - I, Category 6(b) Constables (District Armed Reserve, City Armed Reserve, Head quarters and Special Armed Reserve, Central Police Lines) in colomn (1) and the corresponding / in Col.No.2, 3, there of, the following shall be substituted namely: Class and Category Method of Appointment Limitation Appointing Authority 1 2 3 4 Class - I Category 6 (b) Constables (District Armed Reserve, City Armed Reserve, Head quarters and Special Armed Reserve, Central Police Lines) By Transfer from Andhra Pradesh special police Battalions Nil In muffasil, the Superintendent of Police concerned in Visakhapatnam and Vijayawada cities, the Commissioner of Police concerned and Hyderabad city the Deputy Commissioner of Police, City Armed Reserved Head quarters Hyderabad on allotment from State Level Recruitment Board.
2.
In the said rules, in Annexure - II under Class - II in Column (1) for entries against Category 6(b) Constables (District Armed Reserve).City armed Reserve, Head quarters and Special Armed Reserve, Central Police Lines) for the corresponding entries in Col.
Nos.1,2 and 3 thereof, the following shall be substituted, namely: Class and Category Age limit for appointment otherwise than promotion Qualifications 1 2 3 Class - I Category 6(b) Constables (District Armed Reserve, City Armed Reserve, Head quarters and Special Armed Reserve, Central Police Lines) -Nil- Police Constables of Andhra Pradesh Special Police who have completed ten years of service are eligible for appointment as Police Constables in District Armed Reserve/City Armed Reserve/Special Armed Reserve/Central Police Lines by transfer based on the recommendations of the Inspector General of Police, Andhra Pradesh Special Police, Battalions and subject to fulfilling the local candidature of the respective District or Units.
G.O.Ms.No.299 cannot be found fault with, insofar as it has made an appointment by transfer, as the exclusive method of recruitment of Constables in AR.
That in fact, was not questioned by any one.
The whole dispute is about fixation of seniority of the Constables of the battalions, on their transfer to the AR.
Rule 15 of the Rules deals with the seniority within the service of AR.
Important among them are the Clauses are Clause- c and e.
They read: 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 fiRs.appointment to the latter for purposes of seniority and the seniority of person so transferred shall be determined with reference to the date of his fiRs.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.
15(e).The seniority of qualified Special Policemen appointed by transfer as Constables in this service shall be determined by the date of their fiRs.appointment in this service for purposes of confirmation in vacancies in this service.
Clause-c of Rule 15 deals with the situation, where a person in the same service i.e., AR is transferred from one category in the service to another category, or one class in the category to another class in the category.
In such an event, the seniority has to be determined, with reference to the date of fiRs.appointment of the employee to the class or category from which he was transferred.
For example, in category-4 of the AR service, one of the post is Sub Inspector.
In category-6 also, the post of Sub Inspector figures.
If a Sub Inspector appointed in category-4 is transferred, either on request or administrative grounds to category-6, his seniority in Category-6 has to be determined, with reference to the date of his appointment as Sub Inspector, in Category -4.
This facility is created, on account of the fact that the employee continues to remain in the same service.
Rule 15-e of the Rules, however, deals with a situation, where a constable is appointed in the AR on transfer from another service or organization.
A constable appointed on transfer from special battalion or any other organization or service, becomes part of the AR only, when he comes to be appointed to that service.
What Rule 15-e of the Rules mandates is that the service of the persons so appointed shall be reckoned from the date of fiRs.appointment in ".this service"., meaning thereby AR Service.
The literal and strict interpretation of this rule would to the conclusion that the seniority of the petitioners herein must be reckoned from the date, on which they entered into ".this service".
i.e.A.R., no matter, what, the length of service they had to their credit, in the special battalions, has been.
Seniority list prepared by the respondents was, admittedly, in derogation to Rule 15-e of the Rules.
Though an attempt is made to impress this Court that special battalions are part of the AR, or that there was no qualitative change in services, except that they have been shifted from one wing to other; the fact that the AR is a separate service and they entered into it, only through transfer from another service, cannot be ignored.
In the seniority lists that were published in the respective districts, Constables in the AR were assigned places, taking into account, the date of their initial appointment in the special battalions as the basis.
For example, in Srikakulam district, the final seniority list was published on 22.08.2007.
The constables that were appointed by transfer from 5th battalion on 06.05.2000 in terms of G.O.Ms.No.299, dated 05.10.1999, were placed immediately after the Constables appointed on 17.07.1976.
The dates of their initial appointment in the battalion were taken into account.
For example, though the 1st petitioner in W.P.No.26765 of 2011 was appointed on transfer to the A.R.on 17.03.2004, his date of initial appointment i.e.05.04.1997 was taken as basis for reckoning his seniority.
In that process, he was placed above the Constables appointed in AR, in the year 1994, through direct recruitment.
The petitioners were extended the benefit of decades of service, over the direct recruit Constables.
Same pattern was repeated in other direction.
This has naturally resulted in gross injustice to the respondents.
In a particular seniority list, a person, who was to figure at serial No.3, was pushed down to serial No.41.
The effect on the persons, a bit lower in the list, was far more devastating.
Even according to the procedure contemplated under G.O.Ms.No.299, 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 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, be 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.
True, the Government may have definite purpose in its mind, when it issued G.O.Ms.No.299.
The making of appointment by transfers of constables from battalions, as the only means of recruitment of Constables in the AR, would certainly have the effect of relieving the constables of the special battalions, of the arduous duties.
However, if the Government wanted to confer any benefit on them, it could have provided for weightage on the basis of service, subject to certain limit, that too, duly taking into account the interests of the persons, who are already working as Constables in the AR and awaiting promotions.
Such practice is in vogue in the engineering wings of the various departments of the Government of A.P.; Wherever the Assistant Engineers (SupervisORS.are upgraded as Deputy Executive Engineers on acquiring the prescribed qualifications, the benefit of service in the post of A.E.subject to certain limit is extended.
This would bring about a sort of balance between the conflicting interests.
The placement of hundreds of Constables above the Constables, who are already working in the AR for decades together, cannot be countenanced either in law or on logic.
It is not in dispute that Rule 15-e of the Rules was very much in force, when the seniority lists were prepared.
The fact that it came to be repealed in the recent past, does not rectify the serious infirmity, that has crept into the seniority lists.
The petitioners are not able to convince us to take a different view, from the one that was taken by the Tribunal.
This much, however, can be said that instead of extending benefit of the entire service rendered by the Constables of the special battalions, on being appointed on transfer as ARs.feasibility of extending the benefit of weightage, subject to certain limit, can be considered.
This, however, is a matter that needs to be examined by the Government, without any further loss of time.
A balanced approach would keep the morale of the petitioners on one hand, the respondents on the other, intact.
Any one sided decision in favour of either of them, would not at all promote the efficiency in the service.
Hence, we dispose of the writ petitions 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.
This exercise shall be completed within a period of four (04) months from today.
Till such time, the reversions, that are warranted on account of the implementation of the orders passed by the Tribunal, shall stand stayed.
There shall be no order as to costs.
The Miscellaneous petitions, filed in these Writ Petitions shall stand disposed of.
______________________ L.NARASIMHA REDDY, J ___________________ CHALLA KODANDARAM, J Date:08-10-2013