WP/22081/2008 of Mohd. Zafar Javid, Vs The Deputy Inspector General of Police, on 30 December 2008

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

TUESDAY, THE THIRTIETH DAY OF DECEMBERTWO THOUSAND AND EIGHT

PRESENTTHE HON'BLE MR JUSTICE GHULAM MOHAMMEDand THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY

WRIT PETITION NO : 24959 of 2008

Between:

1 Narra Venkateswara Rao S/o.N.V.Krishna Rao Kovvur, East Godavari District.

2 Kudithi Raghuveer Reddy S/o.late Laxma Reddy Rajahmundry, East Godavari District.

3 Sandaka Raghava S/o.Ramulu

Kaikaluru, Krishna District.

4 Pattaswamy Satyanarayana Rao S/o.Sitha Rama Murthy Gudivada Rural Circle, Krishna District.

5 Vasamsetty Gopala Krishna S/o. (late) Narasimha Swamy Bhimavaram Rural Circle, West Godavari District.

AND

1 The Deputy Inspector General of Police, Hyderabad Ranga, Lakdikapool, Hyderabad.

2 The Director General of Police, Lakdikapool, Hyderabad.

3 The Government of Andhra Pradesh, rep. by its Principal Secretary, Home Department, Secretariat, Hyderabad.

4 G.Venugopal S/o.G.Venkataswamy

Central Crime Station, O/o. Commissioner of Police, Hyderabad.

5 A.Prabhakara Rao S/o.A.Swamy

Mahankali Police Station, Secunderabad.

6 P.Chalam S/o.P.Venkataiah

Chilakalaguda, P.S. Secunderabad.

7 T.Raghupathi Goud S/o.Yalla Goud

Vigilance & Enforcement, Hyderabad City, O/o. Regional Vigilance &

Enforcement Office,

Hyderabad City.

8 H.Kistaiah S/o.H.Pentaiah

P.S. Osmania University, Hyderabad.

9 S.Rajasekhar Rao S/o.Santoji Rao

Railway Police, Secunderabad.

10 P.R.Kosalram S/o.P.T.Ramchandra Naidu Abids P.S. Hyderabad.

11 A.V.Srinivas

Traffic P.S. Saifabad, Hyderabad.

12 N.Sudhakar Reddy

Chikkadpally P.S. Hyderabad.

13 S.Sarat Kumar

O/o. Commissioner of Police, Hyderabad.

Petition under Article 226 of the constitution of India praying that inthe circumstances stated in the Affidavit filed herein the High Court will bepleased to issue writ order or direction more particularly one in the natureof Writ of "Certiorari" call for the records relating to order passed inO.A.No.1772/2008 by the Hon'ble A.P. Administrative Tribunal,Hyderabad dated 26.6.2008 and set aside the same as unjust and withoutany basis in the interest of justice and pass such other order or orders.

Counsel for the Petitioner: MR.C.SRINIVASA BABA

Counsel for the Respondent No.: GP FOR HOME

Between:

1 Mohd. Zafar Javid, S/o. Mohd. Abdul Ghaffar, ACD Head Quarters, Hyderabad.

2 M.M. Ali Baig, S/o. Late Mirza Mohd. Ali Baig, H.No. 1-4-34/A, Rajender Nagar, Mahabubnagar.

3 S. Satyanarayana Rao, S/o. Keshava Rao, H.No. 7-1/44, Srinivasa Nagar Colony, Temple Alwal, Secunderabad.

..... PETITIONER(S)

AND

1 The Deputy Inspector General of Police, Hyderabad Range,Lakdikapol, Hyderabad.Lakdikapol, Hyderabad.

3 State of A.P. Rep by its Principal Secretary to Government, Home Department, Secretariat, Hyderabad.

4 K. Anil Kumar, Inspector of Police,

Vigilance and APTS, APCPDL, Gun Rock, Secunderabad.

.....RESPONDENT(S)

Petition under Article 226 of the constitution of India praying that inthe circumstances stated in the Affidavit filed herein the High Court will bepleased to to issue writ order or direction more particularly one in thenature of Writ of 'Certiorari' call for the records relating to order passed inOA No. 4959/2007 by the Hon'ble A.P. Administrative Tribunal,Hyderabad dated 26-6-2008 and set aside the same as unjust and without any basis and also set aside the final seniority list of SubInspector of Police (Civl) upto 1985 batch of Hyderabad Range in Rc.No.739/E1-202/HR/2007-2008 dated 13-9-2008 issued by the 1st respondentas illegal, arbitrary, in the interest of justice and pass

Between:

1 Jangiti Ranga Rao, S/o. J. Narasaiah,

O/o. Inspector General of Police, Hyderabad.

2 Md. Jameeluddin, S/o. Md. Imamuddin,

Asif Nagar Police Station, Hyderabad.

AND

..... PETITIONER(S)

1 The Deputy Inspector General Of Police, Hyderabad Range,Lakdikapool, Hyderabad.Lakdikapool, Hyderabad.

2 The Director General of Police, Lakdikapool, Hyderabad.

3 The Government of Andhra Pradesh, Rep. by its Principal Secretary, Home Department, Secretariat, Hyderabad. Home Department, Secretariat, Hyderabad.

4 Sri K. Anil Kumar, S/o. Late Yogeswara Rao, Vigilance & APTS A.P.C.P.D.C.L., Gun Rock, Secunderabad.

Petition under Article 226 of the constitution of India praying that inthe circumstances stated in the Affidavit filed herein the High Court will bepleased to issue writ order or direction more particularly one in the natureof Writ of "Certiorari" call for the records relating to order passed in OANo. 4959/2007 by the Hon'ble A.P. Administrative Tribunal, Hyderabaddated 26-06-2008 and set aside the same as unjust and without any basisin the interest of justice and pass

Between:

1 Jangiti Ranga Rao, S/o. J.Narasaiah,

O/o. Inspector General of Police, Hyderabad.

2 Md.Jameeluddin, S/o. Md.Imamuddin, Asif Nagar Police Station, Hyderabad. Asif Nagar Police Station, Hyderabad.

AND

1 The Deputy Inspector General of Police, Hyderabad Range,lakdikapool, Hyderabad.lakdikapool, Hyderabad.

2 The Director General of police, Lakdikapool, Hyderabad.

3 The Government of Andhra Pradesh, rep by its Principal Secretary,Home Department,Home Department, Secretariat, Hyderabad.

4 B.Gopal,

C.C.S. Hyderabad. O/o. Commissioner of Police, Hyderabad City.

5 D.Chinna Hussain,

P.S.Kulsumpura, Hyderabad. O/o. Commissioner of Police,Hyderabad City.Hyderabad City.

6 K.Jagannadha Reddy,

P.S.Mirchowk, HYderabad.O/o. Commissioner of Police, Hyderabad. Hyderabad.

7 A.Srinivas Reddy,

Commissioner Task Force, HYderabad.O/o. Commissioner of Police, Hyderabad.

8 B.Venkata Ratnam,

P.S.Kachiguda, HYderabad.O/o. Commissioner of Police, Hyderabad.9 M.Srinivas, Special Branch, HYderabad.O/o. Commissioner of Police, Hyderabad.

10 S.Subba Raju, S.B.City, HYDERABAD, O/o. Commissioner of Police, Hyderabad.

11 K.Sivaram Prasad, Special Investigation Team, HYderabad.O/o. Commissioner of Police, Hyderabad.

12 B.Kamalakar Reddy, P.S.Abids, HYderabad.O/o. Commissioner of Police, Hyderabad.13 Y.Tulasi Ram Prasad, Jubilee Hills, P.S.HYderabad.O/o. Commissioner of Police, Hyderabad.

Petition under Article 226 of the constitution of India praying that inthe circumstances stated in the Affidavit filed herein the High Court will bepleased to To issue writ order or driection more particularly one in thenature of Writ of 'Certiorari' call for the records relating to order passed inOA.No.1564/2008 by the hon'ble A.P.Administrative Tribunal, Hyderabaddated 26.06-2008 and set aside the same as unjust and without any basisin the interest of Justice and pass

Between:

1 Jangiti Ranga Rao, S/o. J. Narasaiah,

O/o. Inspector Genral of Police, Hyderabad.

2 Md. Jameeluddin, S/o. Md. Imamuddin,

O/o. Asif Nagar Police Station, Hyderabad.

AND

..... PETITIONER(S)

1 The Deputy Inspector General of Police, Hyderabad Range, Lakdikapool, Hyderabad.

2 The Director General of Police, Lakdikapool, Hyderabad.

3 The Government of Andhra Pradesh, Rep by its Principal Secretary, Home Department, Secretariat, Hyderabad.

4 G. Venugopal, S/o. G. Venkataswamy,

Central Crime Station, O/o. Commissioner of Police, Hyderabad.

5 A. Prabhakara Rao, S/o. A. Swamy,

Mahankali Police Station, Secunderabad.

6 P. Chalam, S/o. P. Venkataiah,

Chilakalaguda P.S. Secunderabad.

7 T. Raghupathi Goud, S/o. Yalla Goud,

Vigilance & Enforcement, Hyderabad City, O/o. Regional Vigilance &Enforcement Office,Enforcement Office, Hyderabad City.

8 H. Kistaiah, S/o. H. Pentaiah,

P.S. Osmania University, Hyderabad.

9 S. Rajasekhar Rao, S/o. Santoji Rao,

Railway Police, Secunderabad.

10 P.R. Kosalram, S/o. P.T. Ramchandra Naidu, Abids P.S. Hyderabad.

11 A.V. Srinivas,

Traffic P.S. Saifabad, Hyderabad.

12 N. Sudhakar Reddy,

Chikkadpally P.S. Hyderabad.

13 S. Sarat Kumar,

CCS, O/o. Commissioner of Police, Hyderabad.

Petition under Article 226 of the constitution of India praying that inthe circumstances stated in the Affidavit filed herein the High Court will bepleased to issue writ order or direction more particularly one in the natureof Writ of Certiorari" call for the records to order passed in OA No.1772/2008 by the Hon'ble AP Administrative Tribunal, Hyderabad dated26-6-2008 and set aside the same as unjust and without any basis in theinterest of justice and pass

The Court made the following :

THE HON’BLE SRI JUSTICE GHULAM MOHAMMED

&

THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDYWRIT PETITION Nos: 24959, 22081, 18161, 19502 & 19483 of 2008COMMON ORDER: (per Hon’ble Sri Justice Ghulam Mohammed,J)

Leave is granted to petitioners in these writ petitions tochallenge the common order dated 26-6-2008 passed in OA No.1772of 2008 and batch, by the AP Administrative Tribunal, Hyderabad.

2. Since the subject matter in these writ petitions is one and thesame, they are clubbed, heard together and being disposed of by thiscommon order. As common question of law is raised in these writpetitions, suffice if facts in WP No.24959 of 2008 and thecorresponding OA No.1772 of 2008 are adverted to.

3. The petitioners in these writ petitions are not parties to OANo.1772 of 2008 and batch. The applicants-un-official respondentsherein ‘for short, ‘the applicants’ filed the said OA No.1772 of 2008stating that they have been selected as Sub-Inspectors of Police after being selected by the APPSC in the year 1983 and were appointed assuch by proceedings dated 12-9-1985. Their case was that theseniority list dated 2-7-2007 impugned in the OA has been preparedby the official respondents by giving regularization to them with effectfrom 12-9-1985 i.e. the date of joining. The case of the applicantswas that the rank promotees from the cadre of head constableshaving appeared the required tests on 7-6-1985 and in view ofpassing of the tests subsequently, were included in “C” list by orderdated 4/7-4-1986 and consequently rank promotees (un-officialrespondents in the OA) have been promoted as SIs of Police videorders dated 18-2-1987 and placed on probation for a period of oneyear to be spent on duty within a continuous period of two years from18-2-1987. It is further the case of the applicants that in theimpugned seniority list, the rank promotees ought not to have beenshown seniors to them i.e. reckoning their seniority with effect from 7-6-1985 (i.e. the date of examination of the required test) and thedate of seniority in the cadre ought to have been reckoned from thedate of their appointment as Sub-Inspectors of Police videproceedings dated 18-2-1987. It was further case of the applicantsthat placement of rank promotees in the impugned seniority listabove the applicants who are direct recruits as Sub-Inspectors ofPolice through the APPSC was contrary to Rule 15 of the AP PoliceSubordinate Service Rules, for short, ‘the Rules’ as the rankpromotees were promoted in the year 1987, but their regularization inthat cadre has been given effect from 7-6-1985 i.e. the date ofappearing the qualifying test.

4. It is borne out from record that though notices were served onthe un-official respondents in the OA i.e. rank promotees, noneappeared for them. The official respondents have filed counteraffidavit before the Tribunal stating that the rank promotees passedthe qualifying test on 7-6-1985 and thereafter their names were included in “C” list on 7-4-1986 fit to act as Sub-Inspectors of Policeand the same was approved on 7-4-1986 and the promotion orderswere given basing on the inclusion of their names in the “C” list. Itwas also stated that the rank promotees have passed the qualifyingtest on 7-6-1985 and they are eligible to be promoted to the post ofSub Inspectors of Police from that date.

5. The Tribunal, by the impugned common order, in view ofRule 15 of the Rules and also the guidelines issued in GOMs.No.270, dated 30-4-1984, allowed the OAs and held thatregularization of the rank promotees w.e.f. 7-6-1985 was contrary toRule 15 of the Rules and their seniority can be reckoned from 7-4-1986 i.e. from the date of their entry into the “C” list and in view of theguidelines issued in GO Ms.No.270, dated 30-4-1984, the last date ofpassing the test can be taken into account for the purpose ofreleasing the increment, but not for the purpose of seniority. Hence,these writ petitions by the rank promotees.

6. Heard the learned counsel for the petitioners, the learnedcounsel for the un-official respondents and the learned SpecialGovernment Pleader for the official respondents.

7. It is the contention of Sri M. Ratna Reddy, learned counsel forthe petitioners that that final seniority list impugned in the OA rightlythe rank promotees have been placed above the applicants, as thenames of the rank promotees have been included in the “C” list ofSub-Inspectors of Police, fit to act as such in accordance with theirseniority reckoned from the date of passing the qualifying test. Learned counsel also contended that the said seniority list hasbecame final and the Tribunal ought not to have allowed the OAswithout considering the fact that it will have far reachingconsequences on the rank promotees who are not at all made partiesto the OAs filed by the applicants. Sri C. Srinivasa Baba, learnedcounsel for the petitioners in WP No.24959 of 2008 submitted that settled things cannot be unsettled at this length of time inasmuch asbasing on the date of seniority reckoned from the date of including the names of the rank promotees in “C” list, the rank promotees arefurther promoted as Inspectors of Police and further promoted as Dy.Superintendent of Police and if the impugned order is allowed tostand, the promotions shall have to be reviewed and this exercisecannot be permitted to be done at this long length of time. Learnedcounsel in support of their contentions relied on the decision in BSBAJWA v. STATE OF PUNJAB[1].

8. Sri B. Adinarayana Rao, learned counsel appearing on behalfof learned counsel for the applicants contended that nowhere there isany averment in the affidavits filed in support of these writ petitions,as to how the impugned order passed by the Tribunal is bad and notaccording to law and liable to be set aside. The inter-se-senioritybetween the parties was prepared by the department between therank promotees and the direct recruits was contrary to Rule 15 of theRules and the guidelines issued in that behalf, the Tribunal rendereda judgment giving and cogent and convincing reasons and thereforeis no error of jurisdiction warranting interference under Article 226 ofthe Constitution of India. Sri T. Surya Karan Reddy, learned counselalso contended that in a representative capacity some of the rankpromotees have been made parties to the OAs and though noticeswere served, the rank promotees did not contest the matter andtherefore the petitioners-rank promotees cannot now contend thatthey are the affected parties and they were not put on notice.

9. Learned Special Government Pleader appearing for theofficial respondents submitted that under Rule 15 of the Rules,seniority of a person in the class or category or grade shall unless hehas been reduced to lower rank as a punishment be determined bythe date of his first appointment to such class or category or gradeand the rank promotees of Hyderabad Range Zone-VI were actually promoted on 18-2-1987, but their seniority was fixed w.e.f. 7-6-1985,that the Department having realized that the impugned orders are inaccordance with the rules, seeks to implement the Tribunal’s order.

10. The matter rests on a very narrow compass. The disputerelates to inter-se-seniority between the rank promotees and directrecruits in the cadre of Sub-Inspectors of Police. The applicantsbefore the Tribunal belong to direct recruit Sub-Inspectors of Policeof 1985 batch and they belong to Zone VI i.e. Hyderabad Range,whereas the petitioners in WP No.24959 of 2008 belong to the batchof the year 1989 and they belong to Zone-II i.e. Eluru Range. Areading of Rule 15 of the Rules it is clear that the seniority of aperson in the class or category or grade shall be determined by thedate of his first appointment to such class or category or grade. Thisrule postulates that an employee commences his seniority in aparticular category from the date on which he was actually appointedto the said category, but cannot be any other date of earlier to thesaid date. Rule 15 of the Rules further clarifies that seniority shall bedetermined by the date of commencement of service of an employeewhich counts towards probation. In other words, there cannot be aseniority prior to commencement of probation in a particular category.Under 10 of the Rules every person appointed to a class or categoryshall from the date on which he joins duty be on probation. Thequestion of any employee joining duty would be only after such anemployee has been appointed to a particular category. In otherwords, there cannot be a join in duty without appointment and therecannot be commencement of probation without joining the duty andthere cannot be counting of seniority in a particular category, withoutcommencement of probation. The decision relied on by the learnedcounsel for the petitioners (1 supra) does not apply to the facts of thepresent case as in this case the promotions were effected withoutconsidering the effect of Rule 15 of the Rules and the guidelines issued by the Government in GO Ms.No.270, dated 30-4-1984. Therank promotees i.e. the writ petitioners in respect of Zone-VIHyderabad Range, were actually promoted on 18-2-1987, which is notin dispute, but their seniority was fixed w.e.f. 7-6-1985 which is thedate of last examination conducted by the Department uponcompletion of training.

11. The writ petitioners-rank promotees could not point out, in theteeth of Rule 15 of the Rules, and also the guidelines issued in GOMs.No.270, dated 30-4-1984, any error committed by the Tribunal inallowing the OAs filed by the direct recruits, except harping upon theground that they were not heard. The Tribunal categorically dealt withthe rule position before arriving at the conclusion in setting aside theimpugned seniority list. The writ petitions have not placed anymaterial to nullify the findings of the Tribunal. There cannot be twoopinions about the legal position that a employee cannot seek forseniority from a date earlier to his actual appointment to a particularpost. In that view of the matter, the contention of the learned counselfor the rank promotees that they were put to prejudice as the seniorityof all the persons in that cadre are affected is untenable.

12. The Division Bench of this Court in K. Natarajan’s case discussed the parameters for exercise of the High Court’s power toissue a writ of certiorari and observed that finding of fact reached bythe inferior Court, Tribunal etc., as a result of the appreciation ofevidence, cannot be reopened or questioned in writ proceedingsexcept when the judgment, order or award suffers from an error oflaw apparent on the fact of the record.

13. In the instant case, we do not find any illegality or irregularityin the impugned order passed by the Tribunal warranting interferenceby this Court. The writ petitions fail they are accordingly dismissed.No order as to costs.

_____________________

Mohammed, J

Ghulam

______________________

B. SeshasayanaReddy, JDated: 30-12-2008Tnb/Nrg.

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Form-NIC-OGS/WP{RLD}

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