{"id":208654,"date":"2001-06-15T00:00:00","date_gmt":"2001-06-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/e-shankar-reddy-vs-govt-of-a-p-rep-by-on-15-june-2001"},"modified":"2018-12-22T15:34:46","modified_gmt":"2018-12-22T10:04:46","slug":"e-shankar-reddy-vs-govt-of-a-p-rep-by-on-15-june-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/e-shankar-reddy-vs-govt-of-a-p-rep-by-on-15-june-2001","title":{"rendered":"E. Shankar Reddy vs Govt. Of A.P., Rep. By … on 15 June, 2001"},"content":{"rendered":"
Andhra High Court<\/div>\n
E. Shankar Reddy vs Govt. Of A.P., Rep. By … on 15 June, 2001<\/div>\n
Equivalent citations: 2001 (4) ALT 626<\/div>\n
Author: S Sinha<\/div>\n
Bench: S Sinha, S Nayak<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S.B. Sinha, C.J.<\/p>\n
1. The parties herein are litigating for their seniority. The applicants before this Court filed various Original Applications before the Andhra Pradesh Administrative Tribunal.\n<\/p>\n
2. O.A.Nos. 1396, 1811 and 1815 of 1999 out of which W.P.Nos. 1635, 2120 and 2135 of 2000 arose were filed by the Reserve Sub-Inspectors of Police (hereinafter referred to as RSIs). The said applicants were recruited as RSIs in the year 1985.\n<\/p>\n
O.A.NO 4363, O-A.No. 6380 out of which W.R No. 2643 arose and O.A.No. 6840 out of which W.P.No. 5881 arose – by the direct recruit SIs (Civil) of 1989 batch – and O.A.No. 5066 and O.A.No. 6801 of 1999 out of which W.P.No. 6693 of 2000 arose – by RSIs – were filed challenging G.O.Ms. No. 188, Home (Police-C) Department, dated 30-6-1999 which was issued fixing inter se seniority of Reserve Sub-Inspectors and Sub-Inspectors (Civil) belonging to the 1985, 1989 and 1991 batches.\n<\/p>\n
W.P.Nos. 1761, 2938, 14247 and 25902 of 2000 were filed by the direct recruit SIs (Civil) aggrieved by the interim directions issued by the Tribunal in O.A.No. 6367 of 1999 directing the authorities to consider the cases of the applicants therein for promotion as Inspectors of Police before 1989 batch SIs are proposed for promotion pending consideration of the O.A. W.P. No. 744 of 2000 is filed by the direct recruit Civil SIs aggrieved by the order in O.A. No. 6840 of 1999. W.P.No. 15808 of 2000 is preferred by a Reserve Sub-Inspector challenging G.O.Ms.No. 188.\n<\/p>\n
3. In O.A.No. 1396 of 1999 the following relief was prayed for by the petitioners herein:\n<\/p>\n
 “To declare the action of the respondents in not considering the cases of the applicants for promotion to the post of Circle Inspectors (Civil) as per Special Rules and in the light of the Memo No. 7067\/Pol.C\/A1\/99-1, dated 25-2-1999 as illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India and further direct the respondents to consider the claims of the applicants for promotion to the post of C.I. (Civil) as per Special Rules i.e., G.O.Ms.No. 35, Home (Police), dated 11-2-1999 by reckoning the service rendered by them as Sub-Inspectors (Reserve).\n<\/p>\n
4. In O.A.No. 6380 of 1999 the applicants therein prayed for the following reliefs:\n<\/p>\n
 “To call for the records relating to G.O.Ms.No. 188 Home (Police-C) Department, dated 30-6-1999 issued by the 1st respondent and set aside the same as illegal, arbitrary, bad without jurisdiction and unjust.”\n<\/p>\n
5. It is, thus, evident that they did not claim any seniority over 1989 RSIs. Similar is the prayer in O.A. 6840 of 1999. E. Shankar Reddy, Sub-Inspector of Police who had been given out of turn promotion, filed O.A.NO. 1811 of 1999.\n<\/p>\n
6. The factual matrix involved in these matters is not in dispute.\n<\/p>\n
7. The 1985 batch RSIs questioned the legality and validity of an executive instruction issued by G.O.Ms.No. 188, dated 30-6-1999. They prayed for reckoning of their seniority from the date of initial appointment in the category of RSI in terms of the statutory rules issued under G.O.Ms.No. 35 (Police) Department dated 11-2-1999 with retrospective effect from 15-5-1992 in terms whereof the last paragraph in G.O.Ms.No. 638, dated 5-9-1994 was deleted. It is not in dispute that the minimum qualification prescribed for recruitment of RSI was Matriculation. Although the petitioners herein are graduates, they were appointed directly as RSIs pursuant to the examination conducted in February, 1985. One batch of SIs (Civil) were also appointed in the year 1985.\n<\/p>\n
8. The State of A.P. framed A.P. State Police Subordinate Service Rules (hereinafter referred to as ‘Special Rules’) in terms of the proviso to Article 309 of the Constitution of India.\n<\/p>\n
9. By reason of G.O.Ms.No. 270 Home (Police-C) Department dated 2-4-1990 the Special Rules were amended in terms whereof a channel of transfer was provided to the SI (Civil) limited to 5% of the personnel from RSI cadre. Such provisions had been made also for the posts of constable. It is also admitted that even at the level of the Deputy Superintendent of Police such a provision exists. Those who are recruited to the posts of SI (Civil) were to undergo the requisite training. Those RSIs are said to have been discharging their functions efficiently and one of them had been given out of turn promotion.\n<\/p>\n
10. Rules 15 (a)and (c) of the Special Rules read thus:\n<\/p>\n
Rule 15(a):\n<\/p>\n
“Seniority:– (a) The seniority of a person in the class or category or grade shall, unless he has been reduced to lower rank as a punishment be determined by the date of his first appointment to such class or category or grade. If any portion of the service of such person does not count towards his probation under the General Rules his seniority shall be determined by the date of commencement of his service which counts towards probation:\n<\/p>\n
Provided that in the case of Sub-Inspectors, Sub-Inspectors of Police (Intelligence) and Reserve Sub-Inspectors, the seniority inter se shall be fixed on completion of training in the Police Training College or with the Andhra Pradesh Special Police, as the case may be, instead of at the time of selection in accordance with the aggregate of marks obtained by each probationer–\n<\/p>\n
(i) in respect of his record in the Police Training College or with the Andhra Pradesh Special Police, as the case may be, and<\/p>\n
(ii) at the final examination.\n<\/p>\n
In determining such order of merit, no account shall be taken of marks awarded to a probation in any subject in which he has failed. But such seniority shall be liable to revision by the Deputy Inspector General of Police concerned if he considers it necessary, before completion of probation.\n<\/p>\n
This sub-rule shall not affect the seniority of any members of the service which may have been fixed expressly or by implication before the 19th November, 1941 or any orders as to seniority which may have been passed by competent authority before the 19th November, 1941.\n<\/p>\n
Provided that in the case of directly recruited Sub-Inspectors of Police (Intelligence) the inter se seniority shall be fixed on completion of training the Police Training College\/Andhra Pradesh Police Academy, instead of at the time of selection, in accordance with the list which shall be arranged in order of merit, which shall be determined in accordance with the aggregate of marks obtained by each probationer in the tests and examinations prescribed for them in the training modules conducted at these institutions.\n<\/p>\n
The seniority of the Sub-Inspectors of Police(Intelligence) appointed by transfer from among Sub-Inspectors of Police (Civil) or equivalent ranks of this service carrying the same scale of pay shall not be treated as first appointment but shall be determined with reference to the date of his seniority in the Class or Category from which he was transferred.\n<\/p>\n
Provided further that the inter se seniority of the Sub-Inspectors selected from among the Reserve Sub-Inspectors of Armed Reserve and Andhra Pradesh Special Police Battalions by transfer shall be fixed in the order of merit for each Range (Zone) separately based on the aggregate marks obtained by them in the final examination conducted at Police Training College at the end of six months training. In determining such order of service and seniority in the category from which they are transferred as Sub-Inspectors (Civil) will not be protected, and their seniority shall be reckoned from the date of appointment as Sub-Inspector (Civil) for all purposes.\n<\/p>\n
Rule 15(c):\n<\/p>\n
 (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 person 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.”\n<\/p>\n
By reason of G.O.Ms.No. 638, dated 5-9-1994, which was given retrospective effect and retroactive operation with effect from 15-5-1992 it was directed that the past seniority in the category from which they are transferred would not be protected and the seniority would be reckoned from the date of appointment as SI (Civil) for all purposes. The said amended rule, which was published in the Gazette on 12-9-1994, reads thus:\n<\/p>\n
 “Provided further that the inter se seniority of the Sub-Inspectors selected from among the Reserve Sub-Inspectors of Armed Reserve and Andhra Pradesh Special Police Battalions by transfer shall be fixed in the order of merit for each Range (Zone) separately based on the aggregate marks obtained by them in the final examination conducted at Police Training College at the end of six months training. In determining such order of merit, the marks secured in the failed subjects need not be taken into account. Their past service and seniority in the category from which they are transferred as Sub-Inspectors (Civil) will not be protected, and their seniority shall be reckoned from the date of appointment as Sub-Inspector (Civil) for all purposes.”\n<\/p>\n
11. Thereafter representations were made by the RSIs to the concerned authorities requesting counting of their past service also for the purpose of seniority as was allegedly done by the State in relation to other category of employees in terms of G.O.Ms.No. 661, dated 4-11-1991 and G.O.MS.NO. 462, dated 10-6-1994.\n<\/p>\n
Upon such representations, the opinion of the Director General of Police was called for who advised the Government against amending such rules. However, on 30-6-1998 a memo bearing No. 52631\/ Police. C\/A1\/96-6 was issued wherein the fact that gross injustice has been caused to the RSIs was acknowledged and it was pointed out that such divesting of the right of seniority would be contrary to several judgments of the Andhra Pradesh Administrative Tribunal as also the Supreme Court. A policy decision was therefore taken by the State to again amend the Rule 15(a) of the Special Rules.\n<\/p>\n
12. Thereafter G.O.Ms.No. 35 dated 11-2-1999 was issued with retrospective effect from 15-5-1992 as a result whereof the last four lines of the third proviso to Rule 15(a) commencing from “Their past service……as Sub-Inspector (Civil) for all purposes” incorporated as per G.O.Ms. No. 638 were deleted. The said G.O.Ms. No. 35, dated 11-2-1999 reads thus:\n<\/p>\n
“For the third proviso to Rule 15(a) of the said rules, the following shall be substituted, namely:–\n<\/p>\n
‘Provided also that the inter se seniority of the Sub-Inspectors selected form among the Reserve Sub-Inspectors of Armed Reserve and Andhra Pradesh Special Police Battalions by transfer shall be fixed in the order of merit for each Range (Zone) separately based on the aggregate marks obtained by them in the final examination conducted at the Police Training College, at the end of six months training. In determining such order of merit, the marks secured in the failed subjects need not be taken into account.”\n<\/p>\n
13. The Government of Andhra Pradesh thereafter issued Memo No. 7067\/Pol.C\/ A1\/99-1, dated 25-2-1999 whereby and whereunder the Director General of Police was asked to regulate the seniority of the RSIs transferred to SI (Civil) as per Rule 15(c) obviously keeping in view the amendment issued to Rule 15(a) in G.O.Ms.No. 35 dated 11-2-1999. In the said letter it is inter alia stated:\n<\/p>\n
“2. In the reference second cited certain RSIs requested that their seniority be fixed in accordance with Rule 15(c) of Andhra Pradesh Police Subordinate Service Rules duly giving effect the amendment already issued in the Government Order first cited. The representations are enclosed herewith.\n<\/p>\n
3. Government have examined the matter carefully and direct that the seniority of RSIs transferred to Civil S.I. category shall be regulated as per Clause (c) of Rule 15 of Andhra Pradesh Police Subordinate Service Rules.”\n<\/p>\n
14. The scheme of Rule 15(c) appears to be that when the pay scales are identical the seniority should be protected and having regard thereto, as the posts of RSI and SI (Civil) are equivalent having regard to the fact that they have identical scales of pay, their past seniority should be reckoned. However, the Director General and other subordinate officers refused to follow the said rules and Government instructions and they had been promoting the juniors from the SI (Civil).\n<\/p>\n
Aggrieved by the action of the authorities in not reckoning their past seniority in the category of RSIs and promoting persons belonging to Sub-Inspectors (Civil) to the rank of Circle Inspector ignoring their claims some of the RSIs filed O.As. 1396, 1811 and 1396 of 1999. It appears that pending these O.As. the official respondents were directed to strictly implement the statutory rule and executive instructions dated 25-2-1999. Despite the same, on 9-4-1999 those in the civil service were promoted ignoring the claim of the RSIs.\n<\/p>\n
When the said O.As were pending before the Tribunal, the Government issued G.O.Ms.No. 188, dated 30-6-1999 by reason of which it was directed:\n<\/p>\n
“4. However, the Director General and Inspector General of Police, Andhra Pradesh, Hyderabad is time and again reporting that implementation of Rule 15 (c) of Andhra Pradesh Police Subordinate Services Rules will adversely affect the seniority of Sub-Inspectors Civil, who were recruited directly during the years 1985, 1989, 1991. The Government keeping in view the orders issued in G.O.Rt. No. 176, Home (Police-C) Department, dated 21-1-1993 and with a view to avoid hardship to any direct recruit Civil Sub-Inspector or the Reserve Sub-Inspector appointed by transfer as Civil Sub-Inspectors the following orders are issued to determine the seniority between Sub-Inspectors Civil and Reserve Sub-Inspectors appointed by transfer as Civil Sub-Inspectors by the concerned appointing authorities:–\n<\/p>\n
(i) The Reserve Sub-Inspectors who were recruited as such prior to 9\/1985 but appointed as Sub-Inspectors Civil by transfer after 9\/1985 shall be placed en bloc below the directly recruited Sub-Inspectors (Civil) of 1985 batch.\n<\/p>\n
(ii) The Reserve Sub-Inspectors who were recruited as such between 9\/85 and 1\/89 and appointed as Sub-Inspectors Civil on transfer after 1\/89 shall be placed en bloc below the direct recruit Sub-Inspectors Civil of 1989 batch.\n<\/p>\n
(iii) Similarly the Reserve Sub-Inspectors, who were appointed between 1\/89 and 7\/91 but appointed as Sub-Inspector Civil on transfer subsequent to 7\/91 shall be placed en bloc below the direct recruit Sub-Inspectors of 1991 batch.\n<\/p>\n
(iv) The same principle shall be followed in determining the seniority of Reserve Sub-Inspectors appointed from time to time on transfer as Sub-Inspectors Civil.”\n<\/p>\n
Aggrieved by the above G.O.Ms. No. 188, both the RSIs who had been transferred as SIs (Civil) and the direct recruit SIs (Civil) of 1989 batch filed Original Applications being O.A.Nos. 6801, 6380, 4363, 5066 of 1999 etc.<\/p>\n
By reason of the aforesaid Government Order No. 188, dated 30-6-1999 the RSIs recruited prior to September, 1985 and appointed as SI (Civil) by transfer after September, 1985 were to be placed en bloc below the directly recruited SI (Civil) of 1985 batch. As noticed hereinbefore the said Government Order was questioned both by the RSIs as also SI (Civil) 1989 batch.\n<\/p>\n
Some of the RSIs filed OA.No. 6367 of 1999 for a declaration that they are entitled to be promoted in preference to the direct recruit SIs of 1989 batch and the Tribunal by interim order dated 29-10-1999 granted interim directions in their favour. Challenging the said directions, direct recruit Civil SIs filed W.P.Nos. 1761, 2938, 14247, 25902 of 2000.\n<\/p>\n
15. The learned Tribunal heard the matters together and passed a common judgment dated 31-12-1999.\n<\/p>\n
16. As regards the claim of the 1985 batch of RSIs i.e., O.As. 1811, 1815 and 1396 of 1999, it was held that having regard to the issuance of G.O.Ms.No. 188, a new cause of action has arisen and, therefore, the said applications had become infructuous. Although it was held that RSIs, having regard to Rule 15(c) of the Special Rules become eligible to get their past service counted for seniority in the category of SI (Civil), it was opined:\n<\/p>\n
 “The sole justification for the issue of G.O.Ms.No. 188 restricting the retrospective seniority of reserve SIs in the batch of 1985, 1989 and 1991 is that the provision for conversion as such, for the first time, comes in the year 1990 and persons who are taking advantage of this provision cannot be allowed to affect the vested seniority rights of the directly recruited Civil SIs. Accordingly, while considering the claims of Reserve SIs for retrospective seniority taking into account their past service as Reserve SIs this benefit is however limited to protect the vested rights of direct recruit Sub-Inspectors, Civil, which is particularly so in case of 1985 batch. In 1985 batch, Reserve SIs were appointed in February, 1985 and in other two batches there is no such problem on both the Reserve SIs and Civil SIs were appointed in one and the same time and if they were given retrospective seniority taking into consideration the aggregate marks obtained by them in the final examination conducted at the Police Training College at the end of training, no injustice would be done to the directly recruited Civil SIs. We feel that there is every justification to protect the vested rights of the direct recruit civil SIs of 1985 batch in view of the fact that the provision for conversion of Reserve SIs was subsequently introduced in the year 1990 and any retrospective seniority given should not affect the vested rights of the direct recruit SIs Civil of 1985 batch. Taking over all view of the matter, we are of the view that the impugned G.O. while protecting the rights of Reserve SIs for retrospective seniority and for counting their past service as Reserve SIs has sought to be justice to the seniority claims of the Sub-Inspectors (Civil) also and the impugned G.O. is a compromise and it has, in our view, succeeded in protecting the interests of both the groups of Sub-Inspectors. We, therefore, find nothing illegal or irregular in the impugned orders. Consequently, all these O.As. are liable to be dismissed.”\n<\/p>\n
17. Both those who were initially appointed in the category of RSI in 1985 and SI (Civil) of 1989 batch have filed these writ applications. W.P.Nos. 2120, 1638, 2135, 6693 and 15808 of 2000 have been filed by the RSIs who were later on transferred as SI (Civil). The SIs (Civil) filed W.P.Nos. 744, 25902, 2643, 1761, 5881, 2938 and 14247 of 2000. Interim orders passed by the Tribunal are also in question.\n<\/p>\n
18. In these writ applications orders had been passed to the effect that no appointment to the category of Inspectors of Police shall be made but allegedly on 27-6-2000, 17 juniors had been promoted to the post of Inspectors of Police in relation whereto a contempt application was filed whereafter those who are promoted had been reverted to their original posts.\n<\/p>\n
19. Mr. K. Lakshmi Narasimha, the learned Counsel appearing on behalf of the petitioners-Sis appointed from the category of RSIs has principally raised three questions in support of this application. The learned Counsel would submit that having regard to the fact that their seniority had been protected by reason of G.O.Ms.No. 35 by amending Rule 15(a) whereafter the executive instructions had been issued on 25-2-1999 directing the Director General to give effect thereto, the impugned order of the Tribunal must be held to be bad in law. The learned Counsel would submit that in a similar situation the apex Court in K. Jagannadha Rao v. State of A.P.,  has clearly held that seniority has to be counted from the date of original service. The learned Counsel would contend that when a person is appointed in terms of the rules, his seniority should be reckoned from the date of entry in the service. Reliance in this connection has been placed on M. Ramachandran v. Govind Ballabh,  L. Chandra Kishore Singh<\/a> v. State of Manipur, , , R. Ramaswamy v. Govt of T.N.,<\/a> (1995) Supp. (3) SCC 597, 1998 (3) Supreme 90, S.I. Rooplal v. LT. Governor Through Chief Secretary, Delhi,<\/a> (1999) 10 Supreme 300.\n<\/p>\n
20. It was next contended that the Tribunal ought to have allowed the OA and quashed G.O.Ms.No. 188, dated 30-6-1999. The learned Counsel would urge that the learned Tribunal erred in dismissing the cases as infructuous despite the fact that no such plea was advanced particularly when having regard to Rule 15(c) of the Special Rules it arrived at a finding that once the RSIs complied with the requirements of the law it comes into operation as a result whereof their seniority should be counted from the date of initial joining.\n<\/p>\n
21. The learned Counsel would contend that the learned Tribunal proceeded on a misconception that the SIs (Civil) had a vested interest of seniority, which is contrary to all legal norms.\n<\/p>\n
22. According to the learned Counsel the rule, which was applicable at the time of preparation of the seniority list, would prevail over any subsequent rule. In any event, contends the learned Counsel, G.O.Ms.No. 188, dated 30-6-1999 being an executive instruction, the same could not be subservient to Statutory Rule 15(c). In support of the said contention strong reliance has been placed on State Bank of India v. Vijaya Kumar,  J. Kumar<\/a> v. Union of India,  Union of India and Ors. v. Jagjit Lamba and Anr.,<\/a> 1989 (11) ATC 892 K.S. Vora and Ors. v. State of Gujarat and Ors.,<\/a> 1987 (5) ATC 325 O.P. Singala and Anr. v. Union of India,  Sandhya Jain (Dr.) v. Subhash Jeorge (Dr.),  SC and ST Officers Welfare Council v. State of U.P.,  Shish Ram<\/a> v. State of Himachal Pradesh,  J.C.Bhatia v. State of Rajasthan,  Akhil Bhartiya Soshit Karmachari Sangh<\/a> v. Union of India,  Bengal Iron Corporation v. C.T.O.,<\/a> (1994) Supp. 1 SCC 310, (1993) Supp 1 SCC 746.\n<\/p>\n
23. In short, according to the learned Counsel, G.O.Ms.No. 188 is invalid and ultra vires the statutory rules.\n<\/p>\n
24. The learned Counsel appearing on behalf of the writ petitioners (1989 batch) would submit that G.O.Ms.No. 35 is ultra vires inasmuch as those who had been appointed by transfer were new entrants to the service. It was pointed out that at a point of time when they were transferred, they gave an undertaking in writing to the effect that they would forego their seniority. In any event, contends the learned Counsel, that undergoing training being a part of qualification to hold the post, their seniority would count from the day they complete the training. It was submitted that it was open to the official respondents to amend the rule keeping in view the fact that such a power exists in the State.\n<\/p>\n
25. It had been pointed out that prior to issuance of G.O.Ms.No. 638 on 5-9-1994 the RSIs and SIs (Civil) were posted in different categories and not only their qualification and period of training were different, but even their source of recruitment was also different. It has been pointed out whereas SIs (Civil) were appointed through Public Service Commission the RSIs were appointed by a Board.\n<\/p>\n
26. It had further been submitted that those RSI having been borne to a new cadre upon appointment by transfer, they were subjected to a fresh probation which would clearly prove that their appointment in the latter category was not in continuation of their earlier appointment and as such question of counting their seniority in the previous cadre from 1985 to 1992 does not and cannot arise. It had further been submitted that the omission of last four lines in the proviso appended to Rule 15(a) of the Special Rules by G.O.Ms.No. 35, dated 11-2-1999 would not enure to the benefit of RSI as it encompassed within its fold the matter as regards inter se seniority of the RSI and AP Special Police Force. It has been submitted that Rule 15 (c) has no application in the case of the petitioners as a distinction must be drawn between the simple transfer and an appointment by transfer. The learned Counsel would contend that Rule 15(c) would apply to those who were borne on the same cadre. Reliance in this connection has been placed on K. Rajaiah v. State of AP., . As in the new cadre also the ex-RSIs were required to get a special training, the same also forms part of probation and unless they complete their period of probation successfully they cannot be borne in the same cadre. The decision of the apex Court in K. Jagannadha Rao (1 supra) has been distinguished by the learned Counsel on the ground that therein the Deputy Superintendents of Police from both the categories were having the same qualification, scale of pay and other experiences and their seniority had been protected by a statutory rule. It was strenuously argued that no employee can claim any vested right in particular position and grade but such seniority must be determined in accordance with the rules which were in force at the time when he was borne in the cadre. Strong reliance has been placed on a recent three-Judge Bench decision in P. Mohan Reddy v. E.A.A. Charles and Ors.,<\/a> <\/p>\n
27. Having regard to the aforementioned rival contentions the principal questions which arise for consideration are: (1) Whether G.O.Ms.No. 188 dated 30-6-1999 is invalid in law; (2) Whether for computing the inter se seniority between the SI (Civil) and RSI, Rule 15(c) will apply.\n<\/p>\n
28. The State in exercise of the power conferred upon it under proviso to Art. 309 of the Constitution of India inter alia framed two rules governing different categories of employees known as the A.P. Police Services Rules and the A.P. Police Subordinate Service Rules. In this case we are concerned with the A.P. Police Subordinate Service Rules. The general rules viz., the A.P. State and Subordinate Services Rules, 1996 have no application in the case of those who are governed by the special rules.\n<\/p>\n
29. Both SI (Civil) and RSI including bandmasters are borne in different categories in Class I.\n<\/p>\n
Rule 2 of the said Rules provides for appointment to several classes and categories as indicated in Annexure I appended thereto. It is not in dispute that the mode of appointment to the category of SI (Civil) is as follows:\n<\/p>\n
  Category           (a) Promotion from H., Cs    Upto not more   In the muffasil the\nI: Sub-Inspectors  (category 5)                 than 30% of the Dy. Inspr. Genl. of\nof Police (Civil)                               cadre           Police concerned\n                                                                and in the Hyd. city,\n                                                                the Commr. of\n                                                                Police.\n                   (b) Reservation for Police   Upto not more   -do-\n                   Executive i.e., P.Cs. and    than 13% of the\n                   H.Cs. Police Ministerial     cadre.\n                   Staff and Sportsmen.\n                   Break up for 13% is\n                   indicated and hereunder:\n                   (i) Police Executive i.e.,\n                       P.Cs and H.Cs. 7%\n                   (ii) Police Ministerial Staff\n                                            4%\n                   (ii) Sportsmen 2%\n                   (c) Direct recruitment       Upto not more   In the mufassil the\n                                                than 50% of the Dy. Inspr. Genl. of\n                                                cadre.          Police, concerned\n                                                                and in the Hyd.\n                   (d) By transfer of RSIs      Upto not more   In the muffasil the\n                       from AR\/APSP             than 5% of the  Deputy Inspr. Genl.\n                                                cadre.          of Police, concerned\nCategory 3 Reserve (a) Promotion from           20%             and in the Hyd. City\nSub-Inspectors,        Assistant Reserve                        the Commissioner of\nArmed Reserve          Sub-Inspectors                           Police.\n                   (b) By direct recruitment    65%\n                   (c) Reservation for Police   Upto not more\n                       Executive i.e., PCs and  than 13% of the\n                       HCs. Police Ministerial  Cadre.\n                       Staff and Sportsmen\n                       Breakup for 13% if\n                       indicated hereunder.\n                   (i) Police Executive i.e.,\n                       PCs and HCs 7%\n                   (ii)Police Ministerial Staff\n                                             4%\n                   (iii)Sportsmen 2%\n                   (d) Appointments under       Upto not more   Head of the Dept\n                       special circumstances    than 2% of the  (DG and IGP)\n                       on compassionate         cadre.          Subject to the\n                       grounds from among                       approval of the\n                       the dependants of                        Government.\n                       police personnel\n                       killed or incapaci-\n                       tated while perform-\n                       ing duty\n\n \n\n<\/pre>\n
30. Rule 10 of the said rules provide that every person appointed to a class or category shall from the date on which he joins shall be on probation in the manner as laid down therein. Both the SI (Civil) and RSI were to be on a total period of probation of duty on a continuous period of 2 years whereas SI (civil) were to be on probation for 2 years and RSI for 3 years. One year and seven months on duty or a total period of 2 years on duty (RSIs) the total period of 2 years on duty within a continuous period of 3 years. The probationers are also required to undergo training as specified therein. It is true that the methodology of training varies from category to category.\n<\/p>\n
It is not in dispute that the initial qualifications and the modes in two services of recruitment were different. By G.O.Ms. No. 270, dated 2-4-1990 which came into force with effect from the date of publication, 5 posts of the SI (Civil) could be filled up by transfer of RSI from Armed Reserve or AP Police Service. Similar provisions had been made in the category 6 (b) i.e., constables (civil) from district armed reserve, city armed reserve and special armed reserve.\n<\/p>\n
31. Although the initial qualification of both the categories was different, one of the conditions of appointment by transfer from the category of RSI to SI (civil) was that the same was to be confined to those who hold the requisite educational qualifications. It further appears that in terms of D.O.Lr. No. 4305, dated 3-12-1992 appointments had been made with the following conditions:\n<\/p>\n
“2. He will be governed by the provisions of the A.P.Police Subordinate Service Rules from the date of commencement of training.\n<\/p>\n
3. He will be on probation for a continuous period of one year six months within a total period of two years from the date of his joining training in P.T.C.\/A.P.P.A. His appointment is subject to the condition that his services are liable to be terminated at any time before declaration of his probation, as per rules with one month’s notice or with one month’s pay in lieu thereof.\n<\/p>\n
4. He will undergo a course of 6 months induction training in P.T.C.\/ A.P.P.A. This is followed by practical training in district for a period of one year. The place and date of commencement of training will be intimated separately.\n<\/p>\n
6. The inter se seniority of the SIs (civil) on transfer will be fixed in the order of merit for each range (zone) separately based on the aggregate marks obtained by him in the final examination conducted at P.T.C.\/ A.P.P.A at the end of six months training. His seniority as civil SI in the respective zone will commence from the date of joining the training institution.\n<\/p>\n
7. He will be placed below the last probationer of the zone as on the date of commencement of training.\n<\/p>\n
8. Since the post of R.S.I. and civil S.I. are identical in the scale of pay, his pay will be protected.”\n<\/p>\n
32. It is also not in dispute that in terms of G.O.Ms.No. 638, dated 5-9-1994 the RSIs were to be on probation for a continuous period of one year and six months on duty within a total period of 2 years. It is further beyond any cavil of doubt that the RSIs were appointed as SI (civil) as per 5% quota reserved for them on transfer on their giving willingness to forego their seniority in the cadre of RSI, as would appear from the letter of the Director General and Inspector General of Police, Andhra Pradesh, Hyderabad addressed to the Principal Secretary to the Government of Andhra Pradesh dated 27-1-1998. But it appears that the Government of Andhra Pradesh in terms of Memo No. 52631\/ Police-C\/A1\/96-C, dated 30-6-1998 in reply to the said letter stated:\n<\/p>\n
“(i) …\n<\/p>\n
(ii) Since provisos in the same rule cannot override the provisions contained in another sub-rule of the same rule, it is felt reasonable that the last sentence in the third proviso to Rule 15(a) be omitted which would be helpful in overcoming the controversy between Rule 15 (a) and 15 (c) for purpose of effective implementation of the A.P.A.T. order, dated 25-9-97 in O.A. No. 5506\/97;\n<\/p>\n
(iii) ……\n<\/p>\n
(iv) …..\n<\/p>\n
(v) …….\n<\/p>\n
(vi) It was also considered that the amendment issued to Rule 15 (a) through G.O.Ms.No. 638, Home Department, dated 5-9-1994 with retrospective effect from 15-5-1992 is not in order.\n<\/p>\n
In the above circumstances keeping in view the position of law, Government have decided to rectify the ambiguity by way of deleting the last sentence added to the third proviso to Rule 15(a) of the Andhra Pradesh Police Subordinate Service Rules through G.O.Ms.No. 638, Home Department, dated 5-9-1994 with retrospective effect from 15-5-1992.\n<\/p>\n
However, before amending the rules as suggested by General Administration Department, the Hon’ble M (Home) would like to have a discussion with Principal Secretary, Home and Director General and Inspector General of Police, Andhra Pradesh, Hyderabad in the matter. The Director General and Inspector General of Police, Andhra Pradesh, Hyderabad is requested to discuss the same with Principal Secretary to Government, Home Department before meeting M (Home) in this regard.”\n<\/p>\n
33. The intention of the State in issuing G.O.Ms.No. 35, dated 11-2-1999 is therefore absolutely clear and unambiguous.\n<\/p>\n
34. The State thus has substituted the 3rd proviso by omitting the last four lines appended to Rule 15(a) as in existence only for granting certain benefits to the RSIs despite their undertaking by which they had earlier foregone their seniority and by reason of such amendment, the injustice which had been done to those who had been appointed on transfer were sought to be rectified.\n<\/p>\n
35. The intention of the State in giving seniority to those RSI who were appointed as SI (civil) is also evident from its memo dated 25-2-1999 which is to the following effect:\n<\/p>\n
“2. In the reference second cited certain RSIs requested that their seniority be fixed in accordance with Rule 15 (c) of Andhra Pradesh Police Subordinate Service Rules duly giving effect to the amendment already issued in the Government Order first cited. The representations are enclosed herewith.\n<\/p>\n
3. Government have examined the matter carefully and direct that the seniority of RSIs transferred to Civil S.I. category shall be regulated as per Clause (c) of Rule 15 of Andhra Pradesh Police Subordinate Service Rules.”\n<\/p>\n
36. G.O.Ms.No. 188, dated 30-6-1999 certainly could not be issued contrary to or inconsistent with the statutory rules framed under the proviso appended to Article 309 of the Constitution of India. This position is well settled by the opinions of the Apex Court in State Bank of India v. Vijaya Kumar (6 supra), J. Kumar v. Union of India (7 supra), Union of India and Ors. v. Jagjit Lamba and Anr.<\/a> (8 supra), K.S. Vora and Ors. v. State of Gujarat and Ors.<\/a> (9 supra), O.P. Singala and Anr. v. Union of India (10 supra), Sandhya Jain (Dr.) v. Subhash Jeorge (Dr.)<\/a> (11 supra) SC and ST Officers Welfare Council v. State of U.P. (12 supra), Shish Ram v. State of Himachal Pradesh<\/a> (13 supra), J.C. Bhatia v. State of Rajasthan<\/a> (14 supra), Akhil Bhartiya Soshit Karmachari Sangh v. Union of India (15 supra), Bengal Iron Corporation v. C.T.O.<\/a> (16 supra), (1993) Supp 1 SCC 746.\n<\/p>\n
37. The decision of the apex Court in K. Jagannadha Rao v. State of A.P. (1 supra) interpreting Rule 3 of the A.P. Police Service Rules as regards transfer of the Deputy Superintendent of Police may or may not be apposite but there cannot be any doubt whatsoever that the State intended to bring the employees of both the categories at par as regards their inter se seniority having regard to the said decision which would be evident from the counter-affidavit filed on behalf of the State before the A.P. Administrative Tribunal in O.A.No. 2874 of 1999 affirmed by Sri K.V. Sukumar Babu, the Assistant Secretary to the Government wherein it has been inter alia stated:\n<\/p>\n
“2. In reply to para 6(a) it is submitted that the contention of the petitioners that RSI and Civil SIs are distinct and separate categories is not correct inasmuch as both these posts are governed by A.P. Police Subordinate Service Rules and also carry the same scales of pay. Further it is also not correct to resort to class legislation by gauzing these two categories with mathematical nicety. At best principle of reasonableness what is required under Art. 14 of the Constitution of India has to be applied. Further in respect of Deputy Superintendents of Police the Hon’ble Supreme Court of India has upheld the Government action in the matter of conferring seniority for the service rendered in the category of Deputy Superintendents of Police, A.P.S.P. As such as per the ratio decided by the Hon’ble Supreme Court of India and in order to ensure in discrimination so as to confirm with the constitutional provisions laid down under Art. 14 and also as per the provisions embodied in A.P.State and Subordinate Service Rules i.e., General Rules, Government have rectified the anomaly by way of an amendment through G.O.Ms.No. 35, dated 11-2-1999.\n<\/p>\n
3. In reply to para 6(b), it is submitted that Government have issued orders duly providing a channel for RSIs to get themselves transferred to the Civil cadre to the extent of 5% vide G.O.Ms.No. 270, dated 2-4-1999. Similar provision is also existing in the A.P.P. Service Rules and according to the said provisions Deputy Superintendent of Police of Category 3 by virtue of transfer to the posts of Deputy Superintendents of Police of category 2 are entitled to claim their entire service rendered in the category 3. This provision laid down in Rule 3(b) of A.P. Police Service Rules was upheld by the Hon’ble Supreme Court in K. Jagannadha Rao v. State of Andhra Pradesh<\/a> ((1981) 3 SCC 640 = AIR 1981 SC 1591). As such the question of giving prospective effect ignoring the service rendered in an identical post carrying same scales of pay does not resort to relax rules where there were clear provisions which are in conformity with the constitutional norms which were not only incorporated in General Rules but also in A.P. Police Service Rules. Inasmuch as there being a provision for appointment by transfer the question of conferring a right to seniority does not vest in the authority who has made the said provisions but it will vest in the person, who got himself transferred, automatically. Lest it should go against the spirit of fundamental right which in toto is being applied to all in general and to A.P. Police Services in particular i.e., in respect of Deputy Superintendents of Police. Hence the date of transfer will have no impact in claiming seniority for the service rendered in the category of RSIs.”\n<\/p>\n
38. The moot question which now arises for consideration is as to whether Rule 15(c) would be applicable in the case of RSIs.\n<\/p>\n
39. The submission of the learned Counsel appearing on behalf of the SI (civil) and in particular those of 1989 batch that Rule 15(a) is a special rule and thus Rule 15(c) is excluded by necessary implication, cannot be accepted.\n<\/p>\n
40. Rule 15(a) deals with the determination of seniority or grade by the date of his first appointment. Appointment by way of transfer for RSI and SI (civil) is not a first appointment under A.P. Police Subordinate Service Rules. Thus the appointment by way of transfer being not the first and initial appointment, there is no impediment in application of Rule 15 (c) in this case. Furthermore, the induction training done by the RSI is different from the initial training contemplated under 3rd proviso to Rule 15(a). By reason of the third proviso appended to Rule 15(a) as per G.O.Ms.No. 638, dated 5-9-1994 the past service and seniority in the category of the RSI from which they are transferred as SI (civil) was not protected and their seniority has to be reckoned from the date of appointment as SI (civil) for all purposes.\n<\/p>\n
41. Only pursuant to or in furtherance of the said rules, the RSIs were treated to be junior both of 1985 batch and 1989 batch. As indicated hereinbefore, it is only with a view to ameliorate the grievances and particularly having regard to the fact that although the qualifications prescribed for the post of RSI were different, the incumbents had the requisite qualifications and their scale of pay was same, G.O.Ms.No. 35, dated 5-9-1994 (sic. 11-2-1999) had been issued.\n<\/p>\n
42. A substitution may be treated to be an amendment but also in certain cases may be treated to be having come into force from the very beginning.\n<\/p>\n
43. Furthermore, the third proviso, as it now stands, relates to the inter se seniority of the SI (Civil) from amongst the RSI and A.P. Special Police Battalions by transfer. It is, therefore, not correct to contend that the inter se seniority of the appointees would depend upon the marks obtained by them in the special training held for that purpose. In this case we are not concerned with the inter se seniority between the SI (Civil), RSI and A.P. Special Battalions by transfer but we are concerned with the inter se seniority between the direct recruits of 1995 and 1999 batch of SI (Civil) vis-a-vis the RSI who were appointed by way of transfer to the first mentioned category having regard to the 5% of quota mentioned therein.\n<\/p>\n
44. The submission of Mr. Surender Rao that Rule 15 (c) does not take within its purview an appointment by transfer is wholly misplaced. Appointment by transfer is a valid mode of recruitment. Such a transfer having regard to the special rules, can be made from one class or category of services to another class or category of services.\n<\/p>\n
45. In K. Rajaiah’s case (17 supra) the apex Court was not concerned with the question of seniority. It is true that appointment by transfer and transfer simpliciter do not stand on the same footing. But Rule 15(c) contemplates computation of inter se seniority between the persons who had been transferred from one class or category of the services to another class. In this case, this Court is concerned with appointments made by transfer. Such appointments are protected in terms of Rule 15(c) of the Rules. By reason of the said Rule 15(c), the applicability of Rule 15(a) is clearly taken away having regard to the fact that thereby a legal fiction has been created that such appointment by transfer shall not be treated as first appointment inter alia for the purpose of seniority. Such legal fiction must be given full effect.\n<\/p>\n
46. Rule 15(c) in no uncertain terms protects the past seniority of such categories of persons from the date of his first appointment to the class or category of service from which he has been transferred. To the said extent the decision of the Apex Court in K. Jagannadha Rao’s case (1 supra) shall squarely apply. In the said decision it has been observed:\n<\/p>\n
 We do not however think it necessary to decide whether appointments to category 2 from category 3 amount to transfer attracting Rule 33(c) of the Andhra Pradesh State and Subordinate Services Rules. Under Rule 3(a) of the Andhra Pradesh Police Service Rules, 1966, appointment from category 3 is one method of recruitment to category 2 and the only question is whether giving credit to such appointees for past service in another category in the State Service is justified. We have mentioned the above points of similarity in matters of recruitment and promotion to the two respective categories. It has been noticed also that they carry the same scale of pay. Whether or not some credit should be given for past service in such circumstances is a matter of policy resting with Government. We do not find anything arbitrary or absurd in what Rule 3(d) prescribes, and that being so, the Court cannot examine the matter and come to its own conclusion about what should be the length of past service for which credit should be given……..\n<\/p>\n
47. Once it is held that Rule 15(c) applies to the instant case, the submission of the learned Counsel for the parties to the effect that Rule 15(a) being special rule, the principle of generalia specialibus non derogant shall apply, cannot also be accepted.\n<\/p>\n
48. For the self-same reasons, the question of the effect of the persons borne in the cadre for the first time takes a back seat in view of the fact that although the RSIs, having been appointed on transfer to the posts of SIs (Civil) were borne on a new cadre, their seniority is protected by reason of a statutory rule.\n<\/p>\n
49. It is not a case where Rule 15 (a) and Rule 15 (c) are in conflict with each other and thus the question of applying the doctrine of generalia specialibus non derogant or taking recourse to the principles of harmonious construction for the purpose of reading down the provisions of Rule 15(c), in our considered opinion, cannot be said to have any application whatsoever.\n<\/p>\n
50. The right of seniority is not a fundamental right but is a civil right. Such a right has to be determined in accordance with the provisions of statutory rule. Once the provisions of statute are found to be clear and unambiguous and can be given effect to without any difficulty whatsoever, the question of the Courts considering their right of seniority having regard to different principles enunciated by the Courts would not arise.\n<\/p>\n
51. The vires of G.O.Ms.No. 35 has although been questioned, no ground exists therefor and thus it is idle to contend that despite the fact that the said provision applies to the case of the RIs who were appointed on transfer to the post of SIs (Civil), their seniority must be reckoned from the date from which they were borne in the cadre.\n<\/p>\n
We must also notice that Rule 15 (c) applies to all categories of employees and thus unless an exception is made to any class or category of service as regards its applicability, the same will have uniform application. Rule 15(c) is in pari materia with Rule 3(d) of the A.P. Police Service Rules, 1966 which was to the following terms:\n<\/p>\n
 3(d):The seniority of the Deputy Superintendents of Police, category 2 appointed from the posts of Deputy Superintendents of Police, category 3 shall be fixed in that category giving them credit for their entire service in the posts of the Deputy Superintendents of Police, category 3.\n<\/p>\n
52. For the foregoing reasons, Writ Petition Nos. 2120, 1635,2135, 6693 and 15808 of 2000 filed by the RSIs are allowed and the Writ Petition Nos. 25902, 744, 2643, 1761, 5881, 2938 and 14247 of 2000 filed by the SIs (Civil) are dismissed. It is further declared that G.O.Ms.No. 188 is invalid. There shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Andhra High Court E. Shankar Reddy vs Govt. Of A.P., Rep. By … on 15 June, 2001 Equivalent citations: 2001 (4) ALT 626 Author: S Sinha Bench: S Sinha, S Nayak JUDGMENT S.B. Sinha, C.J. 1. The parties herein are litigating for their seniority. The applicants before this Court filed various Original Applications before the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,8],"tags":[],"class_list":["post-208654","post","type-post","status-publish","format-standard","hentry","category-andhra-high-court","category-high-court"],"yoast_head":"\nE. Shankar Reddy vs Govt. Of A.P., Rep. 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