C. P. Ramamohan Varma, Kadapa Dist v. Superintendent of Police, Kadapa
2023-08-28
K.MANMADHA RAO, RAVI NATH TILHARI
body2023
DigiLaw.ai
ORDER : K.Manmadha Rao, J. This Writ Petition is filed under Article 226 of the Constitution of India, seeking following relief: “to issue writ, order or direction, more particularly one in the nature of Writ of Certiorari calling for records relating to passing of the impugned orders dated 13.01.2015 of the Hon’ble Administrative Tribunal in O.A.No.9438 of 2011 along with the orders of the 1st respondent dated 10.03.2008, as reaffirmed in the 1st respondent reference in C.No. A1/6257/95, dated….08.2009 and quash the same as illegal, consequently directing the 1st respondent to assign the seniority of the petitioner between Sl.Nos. 35 and 36 of the C-List issued in C.No.1199/A1/2007, dated 03.05.2007 by the 1st respondent, with all consequential benefits including arrears of the salary and pass such other orders.” 2. The precise case of the petitioner is that he was appointed as Armed Reserve Police Constable in 1984 and appeared for the qualifying examination conducted by the Superintendent of Police, Kadapa for promotion to the Armed Reserve Head Constable along with 43 constables. Initially 13 persons only from the said list were promoted and there were still 26 more vacancies. The Government changed the procedure and issued G.O.Ms.No.499, Home Department, dated 09.11.2003. As per the said G.O the qualifying service was enhanced from 4 years to 5 years. While the earlier procedure was that holding of promotional test sine qua non for inclusion of the eligible candidate names in the ‘C-List’, the said G.O changed the procedure and prescribed promotion first and tests subsequently. The earlier procedure prescribed no time limit for the life of ‘C-List”. The respondents were conducting selections in accordance with new procedure prescribed under G.O.Ms.No.499, all the persons, who were in the ‘C-List’ but not yet promoted have challenged the said G.O by filing O.A.No.731 of 1994 and O.A.No.5098 of 1992 before the A.P. Administrative Tribunal and as per orders of the learned Tribunal dated 09.03.1994 the petitioner and others also came to be brought into the ‘C-List’ and issued promotion orders on 25.04.1994 and 28.06.1994. The petitioner and 44 others were declared as qualified. Despite vacancies they were not promoted. Therefore, they filed O.A.No.5984 of 1995 and as per orders of the learned Tribunal dated 15.12.2003 the petitioner and others were promoted as Armed Reserve Head Constables, by order dated 23.06.2004 of the 1st respondent. 3.
The petitioner and 44 others were declared as qualified. Despite vacancies they were not promoted. Therefore, they filed O.A.No.5984 of 1995 and as per orders of the learned Tribunal dated 15.12.2003 the petitioner and others were promoted as Armed Reserve Head Constables, by order dated 23.06.2004 of the 1st respondent. 3. While the matter stood thus, the names of the petitioner and others have not been placed in the Seniority List as per ranking in the ‘C-List’. The petitioner submitted representation and questioned the same, so far no action taken by the respondents. Therefore, the petitioner filed O.A.No.4617 of 2007 before the learned Tribunal also directed to consider the request of the petitioners, but the 1st respondent rejected the request of the petitioner and same was communicated to their counsel in 3rd week of September-2009. Hence the petitioner approached the learned Tribunal and questioned the authority of the 1st respondent. The learned Tribunal without considering the factual aspects dismissed the O.A, which is highly illegal and arbitrary. Assailing the same, the present Writ Petition came to be filed. 4. The 1st respondent filed counter-affidavit, inter alia contended that as per judgment of the learned Tribunal in O.A.No. 5894 of 1995, the petitioner and others were promoted as Armed Reserve Head Constables vide proceedings dated 23.06.2004, but their names were included in the ‘C-List’ of ARPCs fit to act as ARHCs during the year 2004. Their names were not included in ‘C-List’ of 1990 as there were no vacancies available at that time. All the qualified ARPCs included in ‘C-List’ were promoted as ARHCs in the vacancies that were existed as on 09.11.1993 as per orders of the learned Tribunal and Chief Office directions. If the request of the petitioner is considered and their names including petitioner are included in the ‘C-List’ of 1990, all the ARHCs who were seniors to them working since 1993 will be affected. The petitioner and others filed O.A for the same request, but the same has been dismissed on 13.01.2015. Therefore there is inordinate delay in filing this writ petition. The grievance of the petitioner about the seniority is claimed to be pending since 1994, which is more than 22 years and several O.As were filed and disposed off since then.
The petitioner and others filed O.A for the same request, but the same has been dismissed on 13.01.2015. Therefore there is inordinate delay in filing this writ petition. The grievance of the petitioner about the seniority is claimed to be pending since 1994, which is more than 22 years and several O.As were filed and disposed off since then. As per standing instructions of the Government the representation in service matter such as seniority, promotion etc., should not be entertained after period of three years from the date of its origin. In the instant case, the issue is pending since more than 20 years, as such there is iota of need to consider the request of the petitioner, which may lead to disturbing the settled seniority of most of the Police Constables. Hence, requested to dismiss the writ petition. 5. Heard Mr.P. Sree Ramulu Naidu, learned counsel for the petitioner and Mr.G.V.S.Kishore Kumar, learned Government Pleader, Services-I for the respondents. 6. During hearing learned counsel for the petitioner reiterated the contents urged in the affidavit and mainly contended that the learned Tribunal failed to appreciate the contentions of the petitioner, misdirected itself and passed impugned order. Further it is the contention of the petitioner in the writ petition and also in O.A that the persons who got into the ‘C-List’ subsequent to them were placed above them and not that they were seniors in service with reference to their respective dates of appointments. The seniority of the Head Constables depends upon the selection by promotion after passing the prescribed tests. Therefore, the persons who got themselves qualified subsequent to ‘C-List’ cannot be placed beyond the petitioner. All the persons, who were placed above the petitioner were promoted without exhausting ‘C-List’ and that they cannot be placed above the petitioner, which fact is also not taken into consideration mistakenly by the learned Tribunal and rendered the impugned order. 7. Per contra, learned Government Pleader, Services-I for the respondents would contend that as per directions of the learned Tribunal, the respondent authorities included the names of the petitioners in the C-List of ARPCs fit to act as ARHCs during the year 2004. But the names of the petitioner and others were not included in ‘C-List’ of 1990 as there were no vacancies by that time.
But the names of the petitioner and others were not included in ‘C-List’ of 1990 as there were no vacancies by that time. All the qualified ARPCs included in ‘C-List’ were promoted as ARHS in the vacancies as on 09.11.1993 as per orders of the learned Tribunal. Therefore, if the request of the petitioner is considered and included in the ‘C-List’ of 1990 all the ARHCs, who were seniors to him working since 1993 will be affected. Therefore, the writ petitioner is not maintainable and same is liable to be dismissed. 8. Learned Government Pleader for respondents placed reliance on the decision of the Hon’ble Apex Court in “K. Meghachandra Singh and Others vs. Ningam Siro and Others”, (2020) 5 SCC 689 wherein it was held as follows: 38. At this stage, we must also emphasise that the Court in Union of India v.N.R.Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711 need not have observed that the selected candidate cannot be blamed for administrative delay and the gap between initiation of process and appointment. Such observation is fallacious inasmuch as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day, a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The persons who might respond to an advertisement cannot have any service-related rights, not to talk of right to have their seniority counted from the date of the advertisement. In other words, only on completion of the process, the applicant morphs into a selected candidate and, therefore, unnecessary observation was made in N.R. Parmar to the effect that the selected candidate cannot be blamed for the administrative delay. in the same context, we may usefully refer to the ratio in Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800, where it was held that even upon empanelment, an appointee does not acquire any right. 39. The judgment in N.R. Parmar’ relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar had incorrectly distinguished the long-standing seniority determination principles propounded in, inter alia, Jagdish Ch. Patnaik(Jagdish Ch.
39. The judgment in N.R. Parmar’ relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar had incorrectly distinguished the long-standing seniority determination principles propounded in, inter alia, Jagdish Ch. Patnaik(Jagdish Ch. Patnaik v. State of Orissa (1998) 4 SCC 456 ; 1998 SCC (L&S) 1156), Suraj Parkash Gupta v. State of J&K, (2000) 7 SCC 561 : 2000 SCC (L&S) 977 and Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCc (L&S) 481. These three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under service jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in Jagdish Ch. Patnaik and consequently we disapprove the norms on assessment of inter se seniority, suggested in N.R. Parmar'. Accordingly, the decision in N.R. Parmar' is overruled. However, it is made clear that this decision will not affect the inter se seniority already based on N.R.Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant rules from the date of vacancy/ the date of advertisement.” 9. Further learned Government Pleader for the respondents placed on record the decision of the Hon’ble Apex Court in “Amit Singh vs. Ravindra Nath Pandey and Others etc.”, Civil Appeal Nos. 8324-8327 of 2022, dated 11.11.2022 wherein it was held as follows: “20. This Court in the case of “Pawan Pratap Singh and Others vs. Reevan Singh and others”, (2011) 3 SCC 267 observed thus: "44. The Constitution Bench of this Court in Direct Recruit Class II Engg. of Officers' Assn. v. State Maharashtra I (1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] stated the legal position with regard to inter se seniority of direct recruits and promotees and while doing so, inter alia, it was stated that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. 45.
45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows: (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime." 10. Perused the record. 11. The grievance of the petitioner is that the name of the petitioner ought to have been placed at Sl.No. 35 and that he made a representation along with others and the 1st respondent rejected their request vide proceedings dated 10.03.2008 on the ground that the names of the applicants were included in “C-List’ in the year 2004 and vacancies were available only in the year 2004 and therefore their seniority was fixed accordingly, which is illegal and arbitrary and same is being challenged in the O.A before the tribunal. 12.
12. A perusal of the Seniority List would show that the petitioner and another are placed at Sl.No.61 and 63 and claiming to be placed above Sl.No.36 shows that up to Sl.No.35 the persons were appointed prior to 1984, except Sl.No.34 and after Sl.No.36 onwards the police constables were shown as appointed in February, 1992 and promoted as Head Constables in the year 1997. And remaining applicants were also promoted periodically. Therefore, about 19 persons, who are very seniors to the applicants in the category of Police Constables and Head Constables, were placed above the petitioner. Further it is finds that the petitioner was promoted as Head Constable in the year 2004, he has not raised any grievance seeking promotion with retrospective effect from 1990 or 1994 or even in the year 1997. In between several promotions were taken place. 13. As could be seen from the order of the learned Tribunal that the petitioner was promoted based on the order of the learned tribunal in the year 2004, the petitioner did not raise any grievance for retrospective promotion and for the first time, they sought intervention of the learned Tribunal only after their request made in the year 2007 was rejected by the impugned proceedings dated 10.03.2008 and stating that the case of the petitioner was considered in the vacancies that was available in the year 2004 and therefore, cases could not be considered earlier due to non-availability of vacancies. Therefore, the learned Tribunal dismissed the O.A. 14. Following the decisions cited supra, this Court finds that the inter se seniority in a particular service has to be determined as per the service rules. Further the date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one after or the other recruited from different sources. Therefore, there is settled law and made clear with regard to inter se seniority aspect as per decisions placed by the respondents, which cited supra, this Court finds no merit in the argument of the petitioner. The petitioner also not placed any case law to substantiate his claim. 15.
Therefore, there is settled law and made clear with regard to inter se seniority aspect as per decisions placed by the respondents, which cited supra, this Court finds no merit in the argument of the petitioner. The petitioner also not placed any case law to substantiate his claim. 15. Further a bare reading of the order of the learned Tribunal would show that the learned Tribunal has given valid reasons by taking into consideration of the facts on record properly and this Court finds that the order passed by the learned Tribunal is in accordance with law and hereby interference of this Court is not required as there is no impropriety or illegality. 16. In view of foregoing discussion, the Writ Petition is dismissed. There shall be no order as to costs.