Service matter - seniority list - Tribunal allowed the petition directing the seniority list should be prepared as per rule 15 -e but not rule 15 - c thereof - subsequently that rule was repealed - Hence, in appeal the High court dispose of the writ petitions a) upholding the orders passed by the Tribunal in the respective O.A., b) directing that the Government shall consider the feasibility of evolving a formula to extend the benefit of weightage of service rendered by the petitioners i.e., the Constables appointed to AR by transfer from special battalions, subject to certain limit, duly taking into account the interests of the Constables appointed through direct recruitment and other modes over the period. = Md.Saiduddin and others...Petitioners K.Venkatesam and others....Respondents = Published in judis.nic.in/judis_andhra/filename=10611

Service matter -Andhra Pradesh State Police Subordinate Service Rules, seniority list - Tribunal allowed the petition directing the seniority list should be prepared as per rule 15 -e but not rule 15 - c thereof  - subsequently that rule was repealed -   Hence, in appeal the High court dispose of the writ petitions 
a) upholding the orders passed by the
Tribunal in the respective O.A., 
b) directing that the Government shall consider
the feasibility of evolving a formula to extend the benefit of weightage of
service rendered by the petitioners i.e., the Constables appointed to AR by
transfer from special battalions, subject to certain limit, duly taking into
account the interests of the Constables appointed through direct recruitment and
other modes over the period. =
Their contention was that they have
been appointed as Constables in the ordinary course, but were drawn to the
special battalions without their consent; and taking into account onerous nature
of duties performed by them in the combing operations etc., the Government has
taken a policy decision through G.O.Ms.No.299, dated 05.10.1999, providing for
their shifting to the AR. The Government has also made an attempt to sustain
action taken by them.=

The Tribunal allowed O.A.No.2352 of 2007 through its order dated 23.08.2007,
taking the view that the seniority of the Constables of the special battalions
transferred to AR must be determined, with reference to Rule 15-e of the Rules
and not 15-c thereof.  
Other O.As. filed by the Constables, directly recruited to the
A.R. from various districts, were allowed, following the order in O.A.No.2352 of
2007, dated 23.08.2007.  = 
Appeal to high court
It is not in dispute that Rule 15-e of the Rules was very much in force, when
the seniority lists were prepared. 
The fact that it came to be repealed in the
recent past, does not rectify the serious infirmity, that has crept into the
seniority lists.  
The petitioners are not able to convince us to take a
different view, from the one that was taken by the Tribunal.  
This much,
however, can be said that 
instead of extending benefit of the entire service
rendered by the Constables of the special battalions, on being appointed on
transfer as ARs, feasibility of extending the benefit of weightage, subject to
certain limit, can be considered. 
This, however, is a matter that needs to be
examined by the Government, without any further loss of time. 
 A balanced
approach would keep the morale of the petitioners on one hand, the respondents
on the other, intact.  Any one sided decision in favour of either of them, would
not at all promote the efficiency in the service.

Hence, we dispose of the writ petitions 

a) upholding the orders passed by the
Tribunal in the respective O.A., 
b) directing that the Government shall consider
the feasibility of evolving a formula to extend the benefit of weightage of
service rendered by the petitioners i.e., the Constables appointed to AR by
transfer from special battalions, subject to certain limit, duly taking into
account the interests of the Constables appointed through direct recruitment and
other modes over the period.

This exercise shall be completed within a period of four (04) months from today.

Till such time, the reversions, that are warranted on account of the
implementation of the orders passed by the Tribunal, shall stand stayed.
There shall be no order as to costs.

HONOURABLE SRI JUSTICE L.NARASIMHA REDDY AND HONOURABLE SRI JUSTICE CHALLA KODANDARAM                  

WRIT PETITION Nos.21610 of 2007 and batch

08-10-2013

Md.Saiduddin and others...Petitioners

K.Venkatesam and others....Respondents

Counsel for the petitioners: Sri C.Srinivasa Baba,
                              Sri G.Vidhyasagar
                              Smt. M.Panduranga Rao
                              Govt.Pleader for Services-II

Counsel for respondents: Sri M.Surender Rao,
                          Smt. K.Rajyalaxmi,
                          Sri K.Siva,
                          Sri D.Balakishan Rao,
                          Govt.Pleader for Services-I

<GIST

>HEAD NOTE  

?Cases referred

HONOURABLE SRI JUSTICE L.NARASIMHA REDDY          

AND

HONOURABLE SRI JUSTICE CHALLA KODANDARAM            

WRIT PETITION Nos.21610, 24847 of 2007, 26765 of  2011,
31595,33217 of 2012 and  18254 of 2013


COMMON ORDER: (Per Hon'ble Sri Justice L. Narasimha Reddy)  

In this batch of writ petitions, as common questions of fact and law are
involved, they can be disposed of through common order.
The genesis for these proceedings is an order dated 23.08.2007 passed by the
A.P. Administrative Tribunal(for short, "Tribunal") in O.A.No.2352 of 2007.
That, in turn, was filed questioning the seniority list of the post of Police
Constables in the District Armed Reserve (for short,"DAR"), Medak District,
communicated through a memo dated 20.09.2006 and consequential memo dated    
07.10.2006.

  W.P.No.24847 of 2007 is filed by the Government challenging the orders in
O.A.2352 of 2007 and W.P.No.21610 of 2007 is filed by the third parties to O.A.,
O.A.No.8213 of 2008 and O.A.No.10126 of 2008 and others were filed by the
persons working in the Armed Reserve (for short, "AR") of other districts. Those
O.As. were allowed through common order dated 09.09.2011, following the order in
O.A.No.2352 of 2007 by DAR of Warangal. O.A.7233 of 2012, filed on the same
lines was allowed by the Tribunal on 03.10.2012.  While W.P.No.33217 of 2012 is
filed by the Government against the order in O.A.No.8312 of 2008, W.P.No.26765
of 2011 is filed by the 7th respondent onwards in O.A.No.10216 of 2008.
Similarly,W.P.No.18254 of 2013 is filed by the Government against the orders in
O.A.No. 7233 of 2012, other respondents in that O. A. filed W.P.No.31595 of
2013.

The   AR Wing of A.P. Police and other connected Wings used to be governed by
the special rules of the Andhra Pradesh State Police Subordinate Service Rules,
1996 (for short, 'Rules') framed in G.O.Ms.No.1263GA/(Rules)/Department, dated
26.08.1959.
In the year 1997, the AR Special Armed Wing was carved out of it,
through Rules framed in 1997. 
The  Civil Wing of the police was constituted as
separate entity through Rules framed in G.O.Ms.No.270 dated 02.04.1990.

The appointment to the post of Constables in the AR used to be through various
methods. While for sometime, it was exclusively through direct recruitment,
during the other times, it was partly by direct recruitment and partly through
appointment by transfer from different sources, at the stipulated percentages.

The Government issued G.O.Ms.No.299, Home, (Pol. D) Department, dated  
05.10.1999, providing for the recruitment of constables in the AR exclusively by
transfer from A.P. Police battalions.  
Through the said G.O., the Rules in G.O.
Ms. No.1263 GA/(Rules)/Department, dated 26.08.1959 were amended.  The  
Constables from the Special Armed Reserve Battalions, on completion of ten years
of service in that category, were made eligible to be appointed by transfer as
Constables in the AR.

Consequent on such appointments, seniority lists were published in the
respective districts.
The Constables that were transferred or received from the
battalions were interpolated in the seniority list, by taking into account, the
date of their initial appointment, in the respective battalions. Thereby all of
them were shown en bloc, as seniors to the Constables in the AR, appointed
through direct recruitment.  
Therefore, the Constables, directly recruited to AR
in the respective districts, filed the O.As. challenging the seniority list.
Their contention was that
the inter se   seniority among the constables is to be determined according to Rule 15-e of the Rules, which directs that the Constables, that are appointed on transfer from special battalions, shall take their seniority from the date of confirmation in the vacancies in the AR Serviceand not from the date of their initial appointment in that special battalions.

 The O.As. were opposed by the constables who were appointed by transfer from
the special battalions. The plea of the respondents was that their appointment
to the AR was not on the basis of any individual proceedings, but on the basis
of policy decision taken by the Government. Their contention was that they have
been appointed as Constables in the ordinary course, but were drawn to the
special battalions without their consent; and taking into account onerous nature
of duties performed by them in the combing operations etc., the Government has
taken a policy decision through G.O.Ms.No.299, dated 05.10.1999, providing for
their shifting to the AR. The Government has also made an attempt to sustain
action taken by them.

The Tribunal allowed O.A.No.2352 of 2007 through its order dated 23.08.2007,
taking the view that the seniority of the Constables of the special battalions
transferred to AR must be determined, with reference to Rule 15-e of the Rules
and not
15-c thereof.  Other O.As. filed by the Constables, directly recruited to the
A.R. from various districts, were allowed, following the order in O.A.No.2352 of
2007, dated 23.08.2007.

The arguments, on behalf of the petitioners, are advanced by the learned
Government Pleader for Services I and II,
Sri G. Vidhyasagr, C. Srinivasa Baba and  Sri M. Pandu Ranga Rao, learned
counsel.  According to them, the circumstances that warranted the issuance of
G.O.Ms. No.299 are mentioned in the G.O. itself and a special mechanism was
evolved by the Government, to compensate the constables, who worked in the
special battalions, by making them part of AR.  They contend that since the
Constables were drawn to the battalions for certain special purposes, they are
entitled to be extended the benefit of that service, when they are shifted to
AR.  It is also pleaded that the placement of the Constables in the battalions,
at the relevant point of time, was not on the basis of any options exercised by
the Constables or through any specific process and realizing that the Constables
drawn to special battalions have undergone hardship, a compensatory step was
taken.  They plead that Rule 15-c of the Rules gets attracted on the facts of
the case, since it is not appointment on transfer in the ordinary parlance but
en bloc shifting of a category of Constables to the AR, and that such move
cannot be said to have caused prejudice to the constables appointed to AR
through direct recruitment. It is also pleaded that taking into account, the
potential of Rule
15-e of the Rules to cause hardship to the Constables of the special battalions,
the Government has repealed the said provision in the recent past.

The learned counsel for the respondents, on the other hand, submits that the AR
is a separate service by itself and specific rules are framed, prescribing
method of recruitment to it and providing it for other conditions of service.
They contend that the entry into service can be only through the modes
prescribed under Rule 6 of A.P. Special Subordinate Service Rules namely direct
recruitment, promotion or recruitment by transfer, and there cannot be any other
method of entry into service. They submit that the appointment by transfer from
other departments is not alien to the AR service. They contend that it was only
for certain period, that the appointment of Constables in AR was exclusively
through direct recruitment and for rests. According to them, even if the
appointment as Constables is exclusively through transfer of Constables from
special police battalions, it partakes the character of appointment by transfer
and the service of the persons, who appointed in the AR, has to be counted from
the date of entry into that organization/service.

Learned counsel submits that whatever may have been the intention in issuing
G.O.Ms.No.299, dated 05.10.1999, it cannot nullify or redefine the principles of
reckoning the seniority. He submitted that the Tribunal has taken the view, in
holding that the situation is governed by Rule 15-e of the Rules and not Rule
15-c.

As observed in the preceding paragraphs, the appointment to the post of
Constables in the AR was not uniform, over the period.  It ranged from the
appointment exclusively through direct recruitment, to one of exclusively
appointment by transfer. In between, there was admixture of both.  Relevant rule
was amended many times.  Contesting respondents in the respective writ petitions
i.e. applicants in the O.As. were the Constables who were appointed through
direct recruitment, from time to time. The petitioners herein (except in the
writ petitions filed by the Government), on the other hand, were initially
appointed as Constables and were drawn to the special battalions. Earlier,
certain percentages of posts of Constables in the A.R. were earmarked for
appointment by transfer from A.P. special battalions and other organizations.

The Government issued G.O.Ms.No.299, dated 05.10.1999 providing for appointment
of Constables to A.R. exclusively by transfer of the Constables in the special
battalions, subject to their having ten years of service and fulfilling
eligibility criterion. Necessary amendments were carried out to Annexures - I
and II, appended to the Rules. Appointment on transfer of the Constables of
special battalions is the only method of recruitment is stipulated as the only
method. The G.O. stipulates the qualifications as under;-

AMENDMENTS  

1. In the said Rules, in Annexure -I, under "Class - I, Category 6(b) Constables
(District Armed Reserve, City Armed Reserve, Head quarters and Special Armed
Reserve, Central Police Lines) in colomn (1) and the corresponding / in
Col.No.2, 3, there of, the following shall be substituted namely:




Class and Category
Method of Appointment
Limitation



Appointing Authority
1
2
3
4

Class - I

Category 6 (b)

Constables (District Armed Reserve, City Armed Reserve,
Head quarters and Special Armed Reserve, Central Police Lines)

By Transfer from Andhra Pradesh special police Battalions

Nil

In muffasil, the Superintendent of Police concerned in Visakhapatnam and
Vijayawada cities, the Commissioner of Police concerned and Hyderabad city the
Deputy Commissioner of Police, City Armed Reserved Head quarters Hyderabad on
allotment from State Level Recruitment Board.

2. In the said rules, in Annexure - II under Class - II in Column (1) for
entries against Category 6(b) Constables (District Armed Reserve), City armed
Reserve, Head quarters and Special Armed Reserve, Central Police Lines) for the
corresponding entries in Col. Nos. 1,2 and 3 thereof, the following shall be
substituted, namely:

Class and Category
Age limit for appointment otherwise than promotion
Qualifications



1
2
3

Class - I

Category 6(b)

Constables (District Armed Reserve, City Armed Reserve, Head quarters and
Special Armed Reserve, Central Police Lines)

-Nil-

Police Constables of Andhra Pradesh Special Police who have completed ten years
of service are eligible for appointment as Police Constables in District Armed
Reserve/City Armed Reserve/Special Armed Reserve/Central Police Lines by
transfer based on the recommendations of the Inspector General of Police, Andhra
Pradesh Special Police, Battalions and subject to fulfilling the local
candidature of the respective District or Units.


G.O.Ms.No.299 cannot be found fault with, insofar as it has made an appointment
by transfer, as the exclusive method of recruitment of Constables in AR. That in
fact, was not questioned by any one. The whole dispute is about fixation of
seniority of the Constables of the battalions, on their transfer to the AR.
Rule 15 of the Rules deals with the seniority within the service of AR.
Important among them are the Clauses are Clause- c and e. They read:
15(c):
The transfer of a person  from one class or category of the service to another
class or category carrying the same pay or scale of pay shall not be treated as
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.

         15(e):

          The seniority of qualified Special Policemen appointed by transfer as
Constables in this service shall be determined by the date of their first
appointment in this service for purposes of confirmation in vacancies in this
service.

Clause-c of Rule 15 deals with the situation, where a person in the same service
i.e., AR is transferred from one category in the service to another category, or
one class in the category to another class in the category. In such an event,
the seniority has to be determined, with reference to the date of first
appointment of the employee to the class or category from which he was
transferred.  For example, in category-4 of the AR service, one of the post is
Sub Inspector.  In category-6 also, the post of Sub Inspector figures. If a Sub
Inspector appointed in category-4 is transferred, either on request or
administrative grounds to category-6, his seniority in Category-6 has to be
determined, with reference to the date of his appointment as Sub Inspector, in
Category -4.  This facility is created, on account of the fact that the employee
continues to remain in the same service.
 Rule 15-e of the Rules, however, deals with a situation, where a constable is
appointed in the AR on transfer from another service or organization. A
constable appointed on transfer from special battalion or any other organization
or service, becomes part of the AR only, when he comes to be appointed to that
service.  What Rule 15-e of the Rules mandates is that the service of the
persons so appointed shall be reckoned from the date of first appointment in
"this service", meaning thereby AR Service.  The literal and strict
interpretation of this rule would to the conclusion that the seniority of the
petitioners herein must be reckoned from the date, on which they entered into
"this service" i.e. A.R., no matter, what, the length of service they had to
their credit, in the special battalions, has been.

Seniority list prepared by the respondents was, admittedly, in derogation to
Rule 15-e of the Rules. Though an attempt is made to impress this Court that
special battalions are part of the AR, or that there was no qualitative change
in services, except that they have been shifted from one wing to other; the fact
that the AR is a separate service and they entered into it, only through
transfer from another service, cannot be ignored.

 In the seniority lists that were published in the respective districts,
Constables in the AR were assigned places, taking into account, the date of
their initial appointment in the special battalions as the basis. For example,
in Srikakulam district, the final seniority list was published on 22.08.2007.
The constables that were appointed by transfer from 5th battalion on 06.05.2000
in terms of G.O.Ms.No.299, dated 05.10.1999, were placed immediately after the
Constables appointed on 17.07.1976.  The dates of their initial appointment in
the battalion were taken into account.  For example, though the 1st petitioner
in W.P.No.26765 of 2011 was appointed on transfer to the A.R. on 17.03.2004, his
date of initial appointment i.e.05.04.1997 was taken as basis for reckoning his
seniority.  In that process, he was placed above the Constables appointed in AR,
in the year 1994, through direct recruitment. The petitioners were extended the
benefit of decades of service, over the direct recruit Constables.  Same pattern
was repeated in other direction. This has naturally resulted in gross injustice
to the respondents. In a particular seniority list, a person, who was to figure
at serial No.3, was pushed down to serial No.41. The effect on the persons, a
bit lower in the list, was far more devastating.

Even according to the procedure contemplated under G.O.Ms.No.299, the
appointment of the petitioners is only through transfer.  It is, certainly,
otherwise than through direct recruitment. Once the transfer is from one service
to another, it is fundamental that the person, who enters through such a
procedure, must take the seniority, immediately after the direct recruits of the
contemporary period, or at least from the date of their entry into that service.
The service rendered by such persons in their parent organization can,
certainly, be counted towards pension and other benefits. In a given case, even
Pay protection can be extended.  However, the seniority of the persons, who were
already working in the service to which those appointed in other service are
transferred, cannot be adversely effected.

True, the Government may have definite purpose in its mind, when it issued
G.O.Ms.No.299.  The making of appointment by transfers of constables from
battalions, as the only means of recruitment of Constables in the AR, would
certainly have the effect of relieving the constables of the special battalions,
of the arduous duties.  However, if the Government wanted to confer any benefit
on them, it could have provided for weightage on the basis of service, subject
to certain limit, that too, duly taking into account the interests of the
persons, who are already working as Constables in the AR and awaiting
promotions.  Such practice is in vogue in the engineering wings of the various
departments of the Government of A.P.; Wherever the Assistant Engineers
(Supervisors) are upgraded as Deputy Executive Engineers on acquiring the
prescribed qualifications, the benefit of service in the post of A.E. subject to
certain limit is extended.  This would bring about a sort of balance between the
conflicting interests.  The placement of hundreds of Constables above the
Constables, who are already working in the AR for decades together, cannot be
countenanced either in law or on logic.

 It is not in dispute that Rule 15-e of the Rules was very much in force, when
the seniority lists were prepared. 
The fact that it came to be repealed in the
recent past, does not rectify the serious infirmity, that has crept into the
seniority lists.  
The petitioners are not able to convince us to take a
different view, from the one that was taken by the Tribunal.  
This much,
however, can be said that 
instead of extending benefit of the entire service
rendered by the Constables of the special battalions, on being appointed on
transfer as ARs, feasibility of extending the benefit of weightage, subject to
certain limit, can be considered. 
This, however, is a matter that needs to be
examined by the Government, without any further loss of time.  A balanced
approach would keep the morale of the petitioners on one hand, the respondents
on the other, intact.  Any one sided decision in favour of either of them, would
not at all promote the efficiency in the service.

Hence, we dispose of the writ petitions
 a) upholding the orders passed by the
Tribunal in the respective O.A., 
b) directing that the Government shall consider
the feasibility of evolving a formula to extend the benefit of weightage of
service rendered by the petitioners i.e., the Constables appointed to AR by
transfer from special battalions, subject to certain limit, duly taking into
account the interests of the Constables appointed through direct recruitment and
other modes over the period.

This exercise shall be completed within a period of four (04) months from today.
Till such time, the reversions, that are warranted on account of the
implementation of the orders passed by the Tribunal, shall stand stayed.
There shall be no order as to costs.


           The Miscellaneous petitions, filed in these Writ Petitions shall
stand disposed of.
______________________  
L.NARASIMHA REDDY, J  
___________________
CHALLA KODANDARAM, J    
Date:08-10-2013

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

cancellation of the sale deeds = Under the Registration Act, 1908 and the Rules framed thereunder, which provide that registration/cancellation of document is only with reference to the executant and the claimant under a document, which is already registered. Petitioner, being a third party, is, therefore, not entitled to approach the registering authority and seek cancellation of the documents executed by third party in favour of any other party. Petitioner’s reliance upon Rule 26 of the Rules framed under the Registration Act is also misconceived inasmuch as Rule 26(k)(i) of the Rules specifically refer to the duty of the registering authority to ensure that the deed of cancellation is executed by all the executants and the claimants, who are parties to previously registered document and only on mutual consent a deed of cancellation can be registered. Since petitioner is not a party to the impugned sale transactions between two different individuals, he is not entitled to seek cancellation thereof and in any case, the petitioner does not satisfy even the requirement of Rule 26, referred to above.