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2001 DIGILAW 1506 (AP)

D. Koteswara Babu v. State Of A. P.

2001-11-21

S.B.SINHA, V.V.S.RAO

body2001
S. B. SINHA, J. ( 1 ) QUESTIONING the order dated 26-4-2000 passed by the learned state Administrative Tribunal in O. A. No. 5186 of 1999 and M. A. No. 348 of 2000 inter alia dismissing the same, the petitioner herein has preferred this writ petition. Facts: ( 2 ) THE petitioner herein joined the police Department as Police Constable (Civil) on 31-1-1990. While working as constable (Civil), East Godavari District, the petitioner was deputed to work in the gray Hounds at Hyderabad on 20-10-1991. While in service, he completed his graduation in 1995. During the month of March, 1998 a notification was issued by the respondents calling for applications for the posts of reserve Sub-Inspector, Armed Reserve and reserved Sub-Inspectors in Andhra Pradesh special Police by direct recruitment. ( 3 ) THE petitioner, who was one of the aspirants thereto against the vacancies reserved for Backward Classes, applied for therefor. He appeared at the written and all other tests conducted by the respondents. ( 4 ) THE petitioner was provisionally selected to the said post. The same was communicated to him by the Inspector general of Police, A. P. Special Police, hyderabad through his Memorandum no. 382/al/98 dated 8-11-1998 and asked for his option for one post. ( 5 ) PURSUANT thereto the petitioner opted for the post of Armed Reserve Sub- inspector. Subsequently the 6th respondent through his letter marked as DO. Lr. No. 787/ 98 dated 22-11-1998 directed that the petitioner shall be relieved from the post of constable w. e. f. 23-11-1998 for reporting before Deputy Inspector General of Police, hyderabad for medical examination and thereafter for training. ( 6 ) THE petitioner, however, was not admitted to the medical and training courses for the post of Reserved Sub-Inspector (Armed Reserve ). The petitioner filed O. A. No. 8741 of 1998 before the State administrative Tribunal questioning the said action of the respondents and the learned tribunal by way of interim measure directed the respondents to send him for medical examination. Accordingly, the petitioner was sent to medical examination and on 7-1-1999 the 5th respondent has deputed him to undergo the training in the post of r. S. I. (Armed Reserve ). The 5th respondent, however, issued another order dated 19-1-1999 cancelling his earlier order dated 7-1-1999, pending final orders of the learned Tribunal. Challenging this order, the petitioner filed O. A. No. 691 of 1999. The 5th respondent, however, issued another order dated 19-1-1999 cancelling his earlier order dated 7-1-1999, pending final orders of the learned Tribunal. Challenging this order, the petitioner filed O. A. No. 691 of 1999. ( 7 ) THE learned Tribunal in its order dated 16-2-1999 disposed of both the original applications (O. A. Nos. 8741 of 1998 and 691 of 1999) with a direction to the respondents to consider the case of the applicant for appointment as R. S. I. (A. R.) in view of his selection in open competition. The Tribunal has also directed the respondents to complete this exercise within a period of two months. As the respondents have not implemented the aforementioned order of the learned Tribunal, the petitioner preferred a contempt application marked as c. A. No. 250 of 1999 and the same is pending. ( 8 ) THE Chairman, State Level Police recruitment Board-3rd respondent subsequently passed an order dated 22-7-1999 informing the petitioner that he was disqualified for selection to the post of Stipendiary Trainee cadet, R. S. I. (A. R. ). The said order reads thus: the State Level Police Recruitment Board, hyderabad is satisfied that his character and antecedents are not such as to qualify him for the post of Stipendiary Trainee cadet R. S. I. (A. R. ). Therefore, the State Level Police Recruitment board disqualifies his candidature for selection to the post of Stipendiary Trained cadet R. S. I. (A. R. ). Hence his representation has been considered and not acceded to. ( 9 ) QUESTIONING the said order, the petitioner herein filed O. A. No. 5186 of 1999 before the learned Tribunal. In the said o. A. , the petitioner contended that the order dated 22-7-1999 is not a valid order as the same was not passed by respondent no. 2-Director General and Inspector General of Police, and according to the Standing order 1 in Chapter one of the A. P. Police standing Orders read with the A. P. Police acts there can be only one Head of the force designated as Director General, and under Fundamental Rule 9, the Head of the Department for the Police Force is director General and Inspector General of police. In the said O. A. , the petitioner also contended that recourse to Rule 40 of the a. P. Civil Services (Control, Classification and Appeal) Rules, 1991 cannot be made by any other officer other than the person holding the office of the Head of the department. It is also his case that after issuance of an order dated 22-11-1998, he ceased to be a Government Servant and c. C. A. Rules cease to apply to non- government servants and, therefore, the scheme of direct recruitment cannot be affected by the performance of an individual in a different post. Pending final decision in the O. A. , the petitioner has filed a miscellaneous application marked as m. A. No. 348 of 2000 praying the Tribunal to summon the respondents to appear with the records before it and file a statement for the delay. The learned Tribunal dismissed the original application, as also the M. A. , holding :. . . . . In the instant case, since it was detected that the applicant was facing the charge of desertion, there is every reason for the respondents to withhold his selection. Further, the respondents are also suspecting that the applicant produced false document stating that the same was issued by the dig, Hyderabad. However, the same is under investigation now. Further, it is also evident that the charge of desertion was established and the applicant was also punished. Thus, it is the case of the respondents that the applicant exhibited traits of irresponsibility, lack of temperament and devotion to duty. Hence, in view of the facts and circumstances of the case, the respondents are having every right to cancel the selection. ( 10 ) AS regards the contention that the chairman, State Level Police Recruitment board is not competent to cancel the selection, the learned Tribunal observed:. . . . . . It is the case of the respondents that the chairman, State Level Police Recruitment board is vested with administrative and financial powers vide G. O. Ms. No. 2518 dated 18-9-1987. Further, as per Rule 12 (1) (a) (ii) it is said that the selection authority is entitled to satisfy himself with the character and conduct of the candidate as to qualify him to which post the candidate is selected. No. 2518 dated 18-9-1987. Further, as per Rule 12 (1) (a) (ii) it is said that the selection authority is entitled to satisfy himself with the character and conduct of the candidate as to qualify him to which post the candidate is selected. ( 11 ) IMPUGNING the said order of the learned Tribunal, the petitioner herein has filed the writ petition praying to set aside the judgment dated 26-4-2000 of the learned tribunal and to declare that he was duly selected to the post of Reserved Sub- inspector and deemed to have joined the post on 16-11-1998 along with other selected candidates. Submissions: ( 12 ) SMT Tripura Sundari, learned counsel appearing on behalf of the petitioner, inter alia submits that the learned Tribunal has wrongly assumed that the whole litigation pertains to promotion and that the petitioner herein has applied for the post of R. S. I. as an in-service candidate. She contended that the learned Tribunal has erred in accepting the suggestion of the respondents that the communication dated 10-11-1998 of the Deputy Inspector General of Police, Hyderabad Range to the petitioner could not have been issued, in the absence of any evidence, more so when in the earlier litigations viz. , O. A. Nos. 8741 of 1998 and 691 of 1999, the respondents have not taken such a stand and recording the said suggestion in the judgment constitutes a virtual acceptance of deliberate false statement by the judiciary. The learned counsel submits that she has produced a copy of the order dated 15-10-1999 issued by the 6th respondent along with m. A. No. 348 of 2000 which knocked the bottom out of the entire assertions of respondents 1 to 6 and the learned Tribunal though referred the M. A. in the cause title did not discuss about the same in the judgment thereby leading to serious injustice to the petitioner. The learned Counsel also submits that the learned Tribunal erred in not noticing the fact that the orders dated 19-1-1999 passed by the 6th respondent are ab-initio void for not following the rule audi alterim partem and the entire procedure has been manipulated with motivation to help somebody next in rank to the petitioner. The learned Counsel also submits that the learned Tribunal erred in not noticing the fact that the orders dated 19-1-1999 passed by the 6th respondent are ab-initio void for not following the rule audi alterim partem and the entire procedure has been manipulated with motivation to help somebody next in rank to the petitioner. The learned Counsel submits further that the verification of antecedents alleged to have been done after the petitioner s selection was a farce in the face of the record of good services already noticed by the learned Tribunal in its judgment dated 16-2-1999 passed in O. A. Nos. 8741 of 1998 and 691 of 1999 and the same was also placed before the learned Tribunal in o. A. No. 5186 of 1999. According to the learned Counsel, the settled procedure for verification of antecedents in relation to any disciplinary action can be confined only to any recorded illegality or otherwise before the date of selection only and any further communication motivated to cause the selection cannot be brought in as an antecedent to harass the candidate. The learned Counsel contends that the learned tribunal has committed a serious error in not summoning the respondents to appear which record, as prayed for in M. A. No. 348 of 2000, leading to non-production of records and serious miscarriage of justice. ( 13 ) MR. Padma Rao, learned government Pleader for Services-II, appearing on behalf of respondents, filed a counter-affidavit sworn by the Chairman, state Level Police Recruitment Board, andhra Pradesh, Hyderabad. In the said counter it was inter alia stated that the petitioner while working in Grey Hounds, hyderabad was declared as deserter vide d. O. No. 403/98 dated 8-7-1998 of the inspector General of Police, Grey Hounds, under provision of Order No. 224 of A. P. Police Manual Volume-I, for having absented himself unauthorisedly without leave or permission from 11-6-1998 to 16-10-1998 a. n. , and he was repatriated to his parent unit i. e. , East Godavari District and a departmental enquiry was ordered by the superintendent of Police, which resulted in imposition of punishment of "censure" vide proceedings No. 729/pr/98 dated 19-11-1998 of the Superintendent of Police, East godavari District. The punishment was, however, enhanced by the appellate authority i. e. , Dy. The punishment was, however, enhanced by the appellate authority i. e. , Dy. Inspector General of Police, Eluru range to that of reduction in time scale of pay by one stage for a period of one year without effect on future increments and pension and the period of absence was treated as "not duty". It is also stated in the counter that the petitioner was provisionally selected as a substitute candidate for the post of reserve Sub-Inspector of Police (Armed reserve) only and the question of calling his option for the post of Reserve Sub- inspector of Police in Andhra Pradesh special Police or Armed Reserve did not arise. It is also stated that the Inspector general of Police, A. P. Special Police did not issue any memo referred to by the petitioner in the writ petition, but the petitioner submitted an option, which was never called for, enclosing a forged letter purported to have been issued by the Office of Inspector General of Police, A. P. Special police. It is also stated in the counter, that the respondents have challenged the orders passed by the learned Tribunal in o. A. Nos. 8741 of 1998 and 691 of 1999 and this Court disposed of the writ petition observing that the Tribunal has only directed the authorities to consider the case of the applicant for appointment as Reserve Sub- inspector (A. R.) in view of his selection in open competition and stipulated time of two months and that does not tantamount to directing the authorities to appoint the applicant - petitioner herein. As such, the authorities are liable to consider as to whether the applicant - petitioner is fit to be appointed in the post sought for on comparative evaluation of the merit and also taking into other circumstances keeping in view the correct rule position. It is also stated in the counter that the State Level Police recruitment Board has satisfied itself that the character and antecedents of the petitioner are not such as to qualify him for the post or Stipendiary Trainee Cadet reserve Sub-Inspector of Police (Armed reserve) and, therefore, disqualified his candidature for selection to the above said post. ( 14 ) MR. ( 14 ) MR. Padma Rao, learned government Pleader placed strong reliance on the decisions in K. Rajaiah v. State of a. P. , AIR 1987 SC 2005 and in Shridhar v. Nagar Palika, Jaunpur, AIR 1990 SC 307 . ( 15 ) AS regards the finding contained in the order dated 22-7-1999 passed by the third respondent, the learned Counsel for the petitioner contends that while the petitioner had been in police service, the award of censure was issued and the same by itself cannot lead to passing of the impugned order. She would urge that once the selection had been made, the recruiting agency ceases to have any jurisdiction whatsoever. As regards the purported abandonment of duty on the alleged production of forged certificate, the learned counsel would contend that the charges in relation thereto had been dropped. ( 16 ) MR. Padma Rao, learned government Pleader on the other hand submits that the selection was made by playing fraud upon the Selection Board. In this connection, our attention has been drawn to the earlier decision of this Court in W. P. No. 13013 of 1999 dated 8-7-1999. The learned Counsel would contend that the order impugned in this writ petition is a speaking one and the same had been passed pursuant to the order passed by this Court and therefore, the question of giving another opportunity does not arise. ( 17 ) THE question raised in this application is in a short compass. It is not in dispute that the purported selection of the petitioner for the post of Armed Reserve sub-Inspector was a direct recruitment. He was selected by the Police Recruitment board. Allegedly, he was relieved from the service and as such, his relationship with the Police Department ceased for the purpose of determination of the issues raised in this writ petition. It may not be necessary for this Court to deal with the submissions made by the learned Counsel for the petitioner. The Superintendent of Police, east Godavari District, Kakinada in his order dated 15-10-1999 observed that the explanation of the delinquent is found to be satisfactory and hence the further action is dropped. He further certified that the procedure laid down under Rule 22 of the a. P. C. S. (CCanda) Rules, 1991 has been followed correctly in the matter. The said order was questioned by the petitioner before the Tribunal. He further certified that the procedure laid down under Rule 22 of the a. P. C. S. (CCanda) Rules, 1991 has been followed correctly in the matter. The said order was questioned by the petitioner before the Tribunal. The petitioner however in an original application filed by him submitted that he is entitled to promotion to the post of Reserve Sub-Inspector whereof he was required to undergo training. This Court in the said Writ Petition No. 13013 of 1999 without going into the merits of the case observed: we need not enter into the merits of the case for the reason that the Tribunal did not emphatically rule that the respondent herein should be appointed, per force. The tribunal had recorded the contentions advanced on behalf of the respondent herein, but that does not mean that the Tribunal had adjudicated the matter. If the Tribunal had adjudicated the matter, then a positive direction would have been given. But, it is not so. The Tribunal has directed the petitioners herein to consider the case of the respondent herein for appointment as reserve Sub-Inspector (A. R.) in view of his selection in open competition and stipulated at time of two months. That does not tantamount directing the petitioners herein to appoint the respondent herein. As such, the petitioners are liable to consider as to whether the respondent herein is fit to be appointed to the post sought for on comparative evaluation of the merit and also taking into other circumstances keeping in view the correct rule position. ( 18 ) PURSUANT to the above order, the petitioner has not been able to produce the offer of appointment. The learned Counsel has however referred to the selection orders passed by the Deputy Inspector General of police, Hyderabad Range dated 7-1-1999 wherein it is stated that the petitioner has been selected as Stipendiary trainee cadet. It was made clear that he discontinues the training for any reason discharged for unsatisfactory training for misconduct, he is liable to repay the stipend. The said order does not disclose that he had been appointed. But he has been selected for training. It appears that the appointment of the petitioner had not been taken place and in that situation, the High Court had directed the third respondent to consider as to whether the petitioner herein is fit to be appointed to the post sought for on comparative evaluation. But he has been selected for training. It appears that the appointment of the petitioner had not been taken place and in that situation, the High Court had directed the third respondent to consider as to whether the petitioner herein is fit to be appointed to the post sought for on comparative evaluation. The aforementioned decision of the High court is binding upon the parties. It would therefore, not be correct to contend that the recruitment Board had no jurisdiction to cancel the selection. ( 19 ) RELEVANT clauses of Rule 12 (l) (a) upon which the learned Counsel for the petitioner placed reliance read thus: 12. Qualifications for direct recruitment : (1) a) No person shall be eligible for appointment to any service by direct recruitment unless he satisfies the selection authority as well as the appointing authority; that: (i) he is of sound health, active habits and free from any bodily defect or infirmity rendering him unfit for such service; (ii) his character and antecedents are such as to qualify him for such service (iii ). . . . . (iv ). . . . . ( 20 ) THE reliance placed by Mrs. Tripura Sundari to Rule 12 is misplaced having regard to the fact that no appointment as such had taken place. Unless the selection authority is satisfied itself that a candidate s antecedents are not such as to disqualify him for such service on the basis of the admitted facts, no person shall be eligible for direct recruitment. No exception thereto can be taken. ( 21 ) BY reason of selection only, no person obtains any status or no status is conferred. Such status is derived when an offer of appointment is issued. The letter of the Deputy Inspector General of Police, hyderabad Range dated 7-1-1999 merely is a communication to the petitioner that he has been selected as Stipendiary Trainee cadet, R. S. I. (A. R.) and no offer of appointment has been issued to him. In the aforementioned situation, prior to issuance of the impugned order, the principles of natural justice were not required to be followed. ( 22 ) IT is now well settled principle of law that when an offer of appointment is made, the selectee derives merely a limited right. It may be true that by reason of cancellation of selection, civil consequences will ensue. ( 22 ) IT is now well settled principle of law that when an offer of appointment is made, the selectee derives merely a limited right. It may be true that by reason of cancellation of selection, civil consequences will ensue. But, it must also be borne in mind that principles of natural justice are required to be observed in a situational flexibility. It is also well settled that if an order is passed having regard to the admitted facts, the principles of natural justice are not required to be complied with in view of the principles envisaged under section 58 of the Indian Evidence Act. The facts admitted need not be proved. In the instant case, it is not in dispute that the petitioner was awarded the punishment of censure on the ground that he had deserted. Whether such a person having regard to the discipline of police force which is required to be maintained, should be taken in service, in our opinion, is a matter which is within the exclusive domain of Selection Board. A person may be otherwise suitable for appointment. But suitability in relation to specialised appointment may have nexus with his past conduct. The fifth respondent in his order dated 7-1-1999 on the basis of the admitted facts and materials on record observed: after completion of training and passing of prescribed tests and based on his work, conduct and performance he will be considered for appointment in a time scale of pay and placed on probation for a period of two years within a continuous period of three years. ( 23 ) THE Tribunal did not interfere with the said order having regard to the conduct of the writ petitioner herein. If the Tribunal has refused to exercise its discretion in the matter, grounds must be made out for interfering with such discretion by this Court in exercise of its power of judicial review. It is now well settled that discretionary jurisdiction is exercised by a Court. The court of appeal or the writ Court shall not interfere with therewith only because it may be lawful to do so. It is trite that even the appellate Court refuses to interfere with discretionary orders not when the order is not right, but when it is clearly wrong (See gujarat Steel Tubes v. Gujarat Steel Tubes mazdoor Sabha, AIR 1980 SC 1896 ). It is trite that even the appellate Court refuses to interfere with discretionary orders not when the order is not right, but when it is clearly wrong (See gujarat Steel Tubes v. Gujarat Steel Tubes mazdoor Sabha, AIR 1980 SC 1896 ). ( 24 ) IN K. Rajaiah v. State of Andhra pradesh (supra) whereupon Mrs. Tripura sundari placed strong reliance runs counter to the case of the petitioner. Therein, it has been held: these two circumstances are no doubt the criteria of a transfer, but merely because of the presence of these circumstances, it will not justify a finding that the appellant was transferred, as contended by him, having regard to the manner in which the appellant was appointed to the post of Sub-Inspector of Police (Civil ). Although a Government servant can be transferred from one post to another, but when he chooses to get himself recruited to that another post after subjecting himself to all requirements and formalities of direct recruitment along with other independent candidates and is confirmed after satisfactory completion of the probationary period, his appointment as a direct recruit cannot be substituted by an order of transfer to the prejudice of the other direct recruits in the matter of computation of seniority. It may be that the appellant had not resigned from the post of Reserve Sub-Inspector of police, and that the Government allowed him the last pay drawn as Reserve Sub- inspector of Police on his appointment as sub-Inspector of Police (Civil), that would not, in our opinion, wipe out the appointment of the appellant as a direct recruit. The tribunal, in our view, is perfectly justified in holding that the appellant was directly recruited to the post of Sub-Inspector of police (Civil), and that his seniority should be computed from the date of such appointment. ( 25 ) ONCE direct recruitment is made, the same cannot be treated to be made on promotion. Direct recruitment must be made in terms of the rules by an appropriate authority. When an offer of appointment is not issued, the question of termination of service does not arise in terms of the General clauses Act. In any event, the third respondent having passed the said orders on the basis of the judgment of this Court aforementioned, cannot be said to have acted illegally or without jurisdiction. When an offer of appointment is not issued, the question of termination of service does not arise in terms of the General clauses Act. In any event, the third respondent having passed the said orders on the basis of the judgment of this Court aforementioned, cannot be said to have acted illegally or without jurisdiction. ( 26 ) FOR the reasons aforementioned, there is no merit in this writ petition. It is accordingly, dismissed. No costs.