Research › Search › Judgment

Andhra High Court · body

2013 DIGILAW 775 (AP)

B. S. P. Ravi Kumar v. State of A. P. , Rep. by its Principal Secretary to Government, Home Department

2013-09-19

L.NARASIMHA REDDY, S.V.BHATT

body2013
Judgment : L. Narasimha Reddy, J. 1. The petitioners challenge the order dated 20-04-2012 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short “the Tribunal”), in O.A. No.6546 of 2010 that was filed by respondents 3 to 9. The Tribunal allowed the O.A. 2. Briefly stated, the facts are: The Armed Reserve, a State-Wide establishment and Special Armed Reserve (SAR) stationed at Hyderabad, are two of several wings of the A.P. Police. Recruitment to these wings is separate and each organization has its own service rules. However, for the post of Deputy Superintendent of Police (DSP) for the Armed Reserve (AR), service rules, under proviso to Article 309 of the Constitution of India, were framed through G.O. Ms. No.118, Home, (Police.E) Department, dated 16-06-1997. 3. The feeder category for the post of DSP is the Inspectors from both the wings. In Rule – 6 of the Andhra Pradesh Police (Armed Reserve) Service Rules (for short “Service Rules”), the post of Inspectors in Hyderabad City and Special Armed Reserve (SAR CPL) was included in the feeder category for the post of DSP. After promotion, the distribution of the officers so promoted used to take place. Such of the officers, as were allotted to SAR CPL, used to be designated as Assistant Commandants. 4. The Government, in the Home Department, amended the Service Rules of SAR CPL through G.O.Ms. No.231, Home (Legal.II) Department, dated 11-09-2007. In Rule – 6 of the Service Rules, which dealt with constitution of the service of DSP AR and has included the post of Assistant Commandant, SAR CPL, and other equivalent categories, the expression “Assistant Commandant” was omitted. Similarly, in Column – 3 of the table appended to Rule – 6, the Units – III and IV i.e., Hyderabad City and SAR, respectively, were omitted. The result is that for the post of DSP in SAR CPL, under the Service Rules, the feeder category is confined to Inspectors working in the Armed Reserve. 5. The petitioners herein have been promoted to the post of DSP and are discharging the functions as per the Service Rules. Respondents 3 to 9, who are working as Inspectors in SAR CPL, are in the allied posts. 5. The petitioners herein have been promoted to the post of DSP and are discharging the functions as per the Service Rules. Respondents 3 to 9, who are working as Inspectors in SAR CPL, are in the allied posts. They i.e. respondents 3 to 9 filed O.A. No.6546 of 2010, with a prayer to direct respondents 1 and 2, to calculate and count such of the persons promoted to State-Wide posts prior to creating SAR CPL as separate Unit and not as part of SAR CPL, for the purpose of filling the vacancies of DSP and Assistant Commandant that were existing before the amendment of Rule 6 in the year 2007, in accordance with the unamended Service Rules. They have also insisted that promotions in the separate Unit of SAR CPL must be made as per G.O. Ms. No.231, dated 11-09-2007, only after undertaking the exercise indicated in the preceding part of the prayer. Consequential reliefs were also claimed. 6. Respondents 3 to 9 pleaded that by the time the Rules were amended through G.O. Ms. No.231 dated 11-09-2007, several vacancies of DSP remained unfilled and being the persons holding the posts in the feeder category in SAR CPL, they are entitled to be considered against such vacancies. They submitted that though the division of cadre has taken place between AR and SAR CPL, and the Service Rules, the amendment would have only prospective effect and that the rights that have accrued to them on the basis of the Service Rules that were in force when they were appointed in the post of Sub Inspectors or when they were promoted to the posts of Inspectors, cannot be defeated. 7. The petitioners herein were not parties to the O.A. The O.A. was opposed by respondents 1 and 2. They took the plea that once the Service Rules were amended and there is a change in the structure of the respective services, respondents 3 to 9 cannot insist on the operation of the un-amended Service Rules. It was also pleaded that the amendment to the Service Rules was challenged in O.A. No.5311 of 2008 and batch, and that the O.As. were dismissed by the Tribunal through the order dated 31-12-2009, upholding the amendment. 8. The Tribunal allowed O.A. No.6546 of 2010, almost as prayed for. Thus, arises the writ petition. 9. It was also pleaded that the amendment to the Service Rules was challenged in O.A. No.5311 of 2008 and batch, and that the O.As. were dismissed by the Tribunal through the order dated 31-12-2009, upholding the amendment. 8. The Tribunal allowed O.A. No.6546 of 2010, almost as prayed for. Thus, arises the writ petition. 9. Sri T. Suryakaran Reddy, learned counsel for the petitioners, submits that the promotion to the post of DSPs in Multi Zones – I and II in the AR, according to the un-amended Service Rules, was resulting in considerable injustice to the Inspectors of that service, and that acting on the repeated representations made thereon, the Government appointed a One Man Commission of Sri J.M. Girglani, a retired I.A.S. Officer, to examine the matter. He submits that the commission analyzed the problem and on the basis of the recommendations made by it, Service Rules were amended through G.O. Ms. No.230 dated 11-09-2007. He contends that there was a clear bifurcation of posts of all categories between AR on one hand and SAR CPL on the other, and the said Service Rules were upheld by the Tribunal. He submits that respondents 3 to 9 have taken recourse to indirect method, to defeat the very amendment and filed the O.A. with a twisted prayer to overcome the Service Rules. He submits that the view taken by the Tribunal that the vacancies that were available before the amendment must be filled on the basis of the un-amended Service Rules is totally untenable, once the composition of the organization has undergone a substantial change, after the amendment. He has placed reliance upon the judgment of the Supreme Court in Dr. K. RAMULU v. Dr. S. SURYAPRKASH RAO (1997) 3 SCC 59 ). 10. Learned Government Pleader for Services -I submits that the relief granted by the Tribunal is contrary to the purport of the Service Rules and unless the relevant provisions of the Service Rules are challenged and set aside, there was no basis for granting relief. 11. Sri J. Sudheer and Sri Ashok Anand Kumar, learned counsel for respondents 3 to 9 and some other persons similarly situated, submit that the dispute is squarely covered by the judgment of the Supreme Court in Y.V. RANGAIAH v. J. SREENIVASA RAO (1983) 3 SCC 284 ). 11. Sri J. Sudheer and Sri Ashok Anand Kumar, learned counsel for respondents 3 to 9 and some other persons similarly situated, submit that the dispute is squarely covered by the judgment of the Supreme Court in Y.V. RANGAIAH v. J. SREENIVASA RAO (1983) 3 SCC 284 ). They submit that the amended Service Rules would govern the situation from the date of amendment and the vacancies that have arisen thereafter and that the vacancies that were existing before the amendment must be dealt with in accordance with the un-amended Service Rules. They submit that the Tribunal has taken into account the relevant provisions of law and that the order passed by the Tribunal in the O.A. does not warrant interference. 12. The AR is a separate wing of A.P. Police and the Service Rules in relation thereto were framed through G.O. Ms. No.118 dated 16-06-1987. It comprises of three categories viz., Commandant, DSP and Reserve Inspector (AR). The post of DSP takes in to hold, not only those in the AR but also similar posts in other wings, such as City Armed Reserve, SAR CPL, Home Guards in Intelligence Security wing, Armed Reserve and Chief Office Stores etc. While the unit for promotion to the post of Reserved Inspector is the concerned Zone, the other two posts appear to be State-Wide, in nature. The feeder category for the post of DSP or its equivalent is the Inspector, in various Units, including SAR CPL. Promotions from the Unit of SAR CPL used to be larger in size, in comparison to other organizations. The Inspectors of that wing were standing to a better chance of promotion to the post of DSP in the combined category and the Inspectors in AR were feeling aggrieved on that account. To address this problem, the Government appointed a Commission and on the basis of the recommendations made by it, the Service Rules were amended through G.O. Ms. No.230. The SAR CPL was totally de-linked from AR in the context of promotion to the post of DSP. On the same day, a notification was issued through G.O. Ms. No.231, Home (Legal.II) Department, dated 11-09-2007, framing Andhra Pradesh Police (Special Armed Reserve, Central Police Lines)) Service Rules, 2006. 13. As a result, the post of Inspector in SAR CPL alone became the feeder category for the post of Assistant Commandant in that organization. On the same day, a notification was issued through G.O. Ms. No.231, Home (Legal.II) Department, dated 11-09-2007, framing Andhra Pradesh Police (Special Armed Reserve, Central Police Lines)) Service Rules, 2006. 13. As a result, the post of Inspector in SAR CPL alone became the feeder category for the post of Assistant Commandant in that organization. However, even before G.O. Ms. Nos.230 and 231 were issued, the Government effected promotions in the post of combined category of DSP (AR) and Assistant Commandant (SAR CPL) by issuing separate orders vide G.O. Ms. Nos.123 and 124, Home (Services-I) Department dated 25-05-2006, for the AR wing on one hand and SAR CPL on the other. The anomaly in this behalf is not subject matter of this writ petition. 14. Once the Service Rules applicable to AR were amended and de-linked it completely from SAR CPL and separate Service Rules were framed for the latter, phenomenal change has taken place in the structure of the respective organizations. The link that used to exist earlier in the context of making promotions to the post of DSP, became completely snapped. The posts were also arranged and readjusted in such a manner that there would not be any scope for any interrelation between them. Depending on the allotment to the cadre, the incumbents are given options. Whatever was existing earlier, virtually becomes a matter of past. 15. It has already been mentioned that when challenged, the amendments were upheld by the Tribunal. 16. Respondents 3 to 9 approached the Tribunal in the year 2010 i.e., seven years after reconstitution of the respective wings, with a prayer to direct respondents 1 and 2 to consider their cases vis-à-vis the vacancies of DSP and its equivalent that existed prior to the amendments. They were not clear about number of vacancies or the year thereof. They were too general and abstract. They wanted such posts to be filled on the basis of the un-amended Service Rules. In other words, they wanted the vacancies that were existing prior to 2006, to be treated as the combined cadre and that the same be filled through the common feeder category, which included the Inspectors in AR and SAR. The petitioners herein have been promoted after the amendments came in to effect. They were promoted through G.O. Ms. No.123. In other words, they wanted the vacancies that were existing prior to 2006, to be treated as the combined cadre and that the same be filled through the common feeder category, which included the Inspectors in AR and SAR. The petitioners herein have been promoted after the amendments came in to effect. They were promoted through G.O. Ms. No.123. If any promotions against the vacancies that existed prior to 2006 are made, such persons are prone to be treated as seniors to the petitioners. 17. Respondents 3 to 9 took a plea that even where any amendments are made to the Service Rules, the promotions for the post that existed as on the date of amendment effected, must be is in accordance with the un-amended Service Rules. They placed reliance upon the judgment of the Supreme Court in Y.V. Rangaiah’s Case (Supra 2). 18. There is no quarrel with the principle that an amendment caused to the Service Rules cannot affect the right that has accrued to an employee and operation of such amendments can be only prospective in nature. The facts that gave rise to judgment in Y.V. Rangaiah’s Case (Supra 2), are that consequent upon the implementation of six points formula in the State of Andhra Pradesh, the localisation of the cadres in the Government services has taken place with effect from a particular date, the cadres came to be localized. The post of Assistant Registrar in the Registration Department was treated as zonal one. Consideration for promotion to that post is confined to the employees, working in the feeder category, in the concerned zone. There was delay in consideration of the case of the appellants in that case. In the meanwhile, the new arrangement came into force and that resulted in denial of promotion to them. The Hon’ble Supreme Court took the view that the rights that accrued to the employees to be promoted as per the un-amended Service Rules, cannot be defeated on account of delay on the part of the department. 19. The facts in the present case are totally different. The units of appointment are the wings of police department, in which, the petitioners on the one hand and respondents 3 to 9 on the other, are appointed, are totally different. 19. The facts in the present case are totally different. The units of appointment are the wings of police department, in which, the petitioners on the one hand and respondents 3 to 9 on the other, are appointed, are totally different. There was only a small common area between those two wings at the stage of promotion to the post of DSP or its equivalent post. That common area was erased and obliterated through the amendment to the Service Rules in the year 2007. That there is nothing otherwise common, between those two wings. Respondents 3 to 9 could certainly have canvassed their rights within their unit of appointment or the wing; if any amendments to their Service Rules were made. They cannot claim rights vis-a-vis another unit of appointment and wing of police department. The ratio of judgment in Y.V. Rangaiah’s Case (Supra 2) does not apply to the facts of the case. 20. In Dr. Ramulu’s Case (Supra 1), the Supreme Court had an occasion to deal with the case, similar to the case on hand. Their Lordships held that an employee cannot be said to have acquired any vested right for being considered for promotion in accordance with the repealed service rules. The relevant portion of the judgment reads: “Thus, we hold that the first respondent has not acquired any vested right for being considered for promotion in accordance with the repealed Rules in view of the policy decision taken by the Government which, we find is justifiable on the material available from the record placed before us.” 21. Added to that, there is a total change in the structure of the organizations; in the present case. A clear and separate division of posts of DSPs and the equivalent post was made between AR on one hand and SAR CPL on the other. In effect, respondents 3 to 9 wanted respondents 1 and 2 to repeat or continue the same anomaly, which the Government has taken away, through its orders in G.O. Ms. Nos.230 and 231 in 2007. One of the known rules of interpretation is to verify as to what mischief, the Legislature wanted to contain or the anomaly, to remove; through its legislature. Nos.230 and 231 in 2007. One of the known rules of interpretation is to verify as to what mischief, the Legislature wanted to contain or the anomaly, to remove; through its legislature. That having been done, the Court must ensure that the interpretation placed by it on the relevant provision, does not result in resurrection of and revival of such mischief or anomaly, which the legislature has removed. 22. Further, the direction issued by the Tribunal is totally unworkable. The cases of respondents 3 to 9 cannot be considered for the post of the combined cadre of DSP in isolation. It must be on the basis of a common seniority list, comprising of the Inspectors in SAR CPL and AR. There is no such list in the AR wing, since the Inspectors therein have already been promoted. A futile exercise has to be undertaken through a notional process. Even if any promotions are made, the allocation that used to exist earlier, must be undertaken. Once there is no common cadre of DSP and each of the wings have their own cadres of DSP or Assistant Commandant, as the case may be, and the officials were already functioning under the cadre so constituted, it would become next to impossibility, if, not a futile exercise, to allot the persons so selected to various wings. 23. Therefore, the Writ Petition is allowed and the order passed by the Tribunal is set aside. The Miscellaneous Petitions filed in this writ petition shall stand disposed of. There shall be no order as to costs.