Govt. of Andhra Pradesh and Ors. Etc. v. M.A. Kareem and Others Etc.

SHARMA, J. CivilAppea/NiJ. 173 of 1986:· By the judgment under appeal the Andhra· Prad~sh Administra, tive Tribunal has accepted the claim of seniority pressed by the respon- dents in their Representation P~tition No.· 15S9 of 19S3. · ·· 2. The respondents were working as Lowe'r Division ·clerks (LDCs) in the district police offices/units in Andht~ Pradesh, when the question of appointing LDCs in the Chief O'ffice arose.'Ii was decided to give an opportunity to the LDCs working in the district police offices/units on the condition that they would ·be willing not to rely upon their service rendered in the district police: offices/units for the purpose of seniority and that their seniority would be counted-with effect from the date they· joined the Chief Office. Accordingly a Memorandum Re. No. 1020/Sl/68 dated 21.11.1968 (Annexute''A') was issued to the district police offices/units. The choice was limited to probationers ·and approved probationers having good service records. The letter expressly stated that the appointees were fo be put at the bottom of the list of probationers· or approved probationers already working in the Chief Office. Immediately thereafter the respondents . and two other LDCs, who are not parties to ·the present case, expres­ sed their desire to join the Chief Office on the condition <ts mentioned in the said memorandum. They in positive terms declared in Annexure 'C' series their willingness to forego their seniority. After examination of their service records, orders were passed and accmdingly Memorandum Re. No:· 1020/SJ/68 dated 1.6.1970 (Annexure 'O') was, issued to the heads of departments of the concerned distrkt police offices/units. A pointed reference to the memorandum of 21: 11. 1968 was made stating that the clerks in question were to.take their seniority from the date of their·joining the duty in the Chief Office as alfeady mentioned in their letters. Accordingly, ·an ihe fivi; resp6;..dents joined their duty in the Chief Office after SUbl)litting,. with reference to the memorandum dated 1.6.1970, separate letters :(at 'pages 40:44 of the 486 SUPREME COURT REPORTS [ 1990] Supp. !' S.C.R. • paper book) addressed to the Inspector General of Police, stating that: "I submit that I am willing to take the last rank in seniority in the category of LDCs. in Chief Office from the date reporting duty in Chief Office." B Their respective dates of joining the Chief Office are detailed in the Memorandum dated 7.9.1970, Annexure 'H' (page 47 of the paper book). They were pl.aced on probation with the condition that if they failed to complete their probation satisfactorily they would be sent back to their original district/unit offices. c 3. The respondents satisfactorily completed their probation and were substantively confirmed in the Chief Office and their seniority was counted with effect from the dates they joined the Chief Office. In 1983 they filed an application before the Andhra Pradesh Administra­ tive Tribunal claiming that they were entitled to count their service rendered in the district police offices/units for the purpose of their D seniority in the Chief Office, which has been allowed by the impugned judgment. 4. In support of their claim the respondents relied on the Memorandum Re. No. 1020/S 1/68 dated 18. l. 1969 (Annexure 'B') issued by the office of the Inspector General of Police to the heads of E the district police organisations/units, stating that, "In continuation of the Chief Office memorandum cited, the Commissioner of Police, all Superintendents of Police and Commandants etc., are requested to state whether there are any L.D. Clerks willing to come on transfer to Chief Office, if the condition stipulated in the Memorandum cited regarding taking of last rank is not insisted upon. The records of the L.D. Clerks recom­ mended should be good." It h'as been argued before the Tribunal as also before us that this letter G clearly indicates that adequate number of clerks from the district police offices/uints were not available and a decision to forgo the condition in regard to the seniority of the clerks was taken. It has been contended that in view of this departmental decision the respondents should not be bound down by their statements made in Annexures 'C' series and in their letters Annexures 'E' series. The Tribunal has H accepted their plea. GOVT. OF A.P. v. M.A. KAREEM [SHARMA, J.) 487 5. Mr. C. Sitharamaiah, the learned counsel appearing in sup- A port of the appeal, has urged that the Metnorandum Annexure 'B' does not indicate any final decision taken by the Department. The learned C()unsel appea.rs to be right. A perusal of the letter makes it clear that the office of the Inspector General of Police was only mak- ing an inquiry in the terms indicated therein. It is true that presumably sufficient number of volunteers from the district police offices/units were not available which promoted the authority concerned to issue the letter Annexure 'B ',but it does not go beyond circulating a query. It cannot be suggested on its basis that there was a reversal of the policy with respect to the counting of the seniority of the incoming LDCs from the district police offices/units. It has been asserted in the counter affidavit of the State filed before the Tribunal that not a single person was allowed to join the Chief Office on the condition indicated in Annexure 'B', and it has not been denied on behalf of the respon­ dents either before the Tribunal or before us. The respondents have not been able to produce a copy of any decision taken on the lines indicated in Annexure 'B' nor have they been able to cite even a single case of an LDC joining the Chief Office on such a supposed decision. We have, therefore, no hesitation in holding· that the condition mentioned in Annexure 'B' is of no avail to the respondents. 6. The learned counsel for the respondents referred to r. 16 of the A.P. Ministerial Service Rules (hereinafter referred to as the Rules) and urged that when the respondents were permitted to join the E Chief Office, they were allowed to do so by way of a regular transfer from one department to another and this was done. for administrative exigencies of the Police Department, within the meaning of the said Rules, and not on their own request. They are, therefore, entitled to count their earlier service for the purpose of seniority. It is alleged that the fact that the respondents were paid travelling allowances for join- F ing the Chief Office corroborates their stand. We have considered the argument addressed on behalf of the respondents along with the rele­ vant documents but do not find any merit in their stand. It has to be appreciated that the cadre of the Chief Office is altogether different from cadre. of the district police offices/units where the respondents were earlier appointed and they were not liable to be transferred to the G Chief Office. The service conditions· at the Chief Office were better, . which was presumably the re.ason for the respondents to give up their claim based upon their past services. It is true that the differential advantage was not so substantial as to attract every LDC working in the district offices/units, and in that situation the le1ter Annexure 'B' had to be circulated. However, so far the respondents and the two others H 488 SUPREME COURT REPORTS [ 1990] Supp. 1 S.C.R. were concerned, they found it in their own interest to forego their claim Of seniority .on the· basis of their past services and they did so. It is significant to note that their. letters Annexures 'E' series were sent to the Inspect.or General of Police many months after the issuance of Annexure 'B' and they were allowed to join the Chief Office on clear understanding that they would .not be entitled to count their past services. it is, therefore, idle to suggest that the respondents can now turn. back and repudiate their commitment expressly made many months after Arrnexure 'B'. 7. So far the. allegation regarding payment of travelling allo­ wance is concerned, the. same has been dealt with in paragraph 6 of the counter afficlavit of the appellant filed before the Tribunal in the fol­ lowing terms.: "They cannot claim seniority now after a lapse of 13 years on the ground that they were given T.T.A. at the time of their transfer. No orders were issued from this office to the Subordinate Officer that the petitioners are eligible for T.T.A. and joining time. Jn fact the Dy. lnspr. Genl. of Police, Hyderabad Range in his order No. 534/E/256/70 Hr. Dt. 5.6.70, addressed to Supdt. of Police, Medak had specifically informed that the petitioners No. 1 and 2 are not entitled for any T. T.A. and joining time .. " It is ·urged ihat inspiie of the clarification made by the Deputy Inspector General of Police, as stated above, if some officers permit­ ted the respondents to draw travelling allowance, this cannot be a grou~d to hold that ii was a case ·of regular departmental transfer. The r. !6 cannot, therefore, be held to be applicable in the present case. 8. Mr. Sitharamaiah urged that having regard to the entire circumstances as spelt out of the different documents on the records of the present .case, it .should be heid that the Memorandum Annexure 'A' issued by the Office of the.Inspector General of Police was a mere invitation to the LDCs in the district police offices/units to apply for appointment in the Chief Office with the condition mentioned therein, and availing of the opportunity, the respondents accordingly requested by their statements and letters for appointment in the Chief Office. lt . is suggested by the learned counsel that if the case be treated to be one of transfer, it has to be held, in the circumstances, to be at the request of the LDCs concerned within the meaning of r. 16 of the Rules. There is considera~l_e substance in the alternative argument of Mr. Sithara- GOVT. OF A.P. v. M.A. KAREEM [SHARMA, J.J 489 ~ maiah a!So, but, it is not necessary to go into this question deeper as A the absorption of the respondents in the Chief Office cannot be treated by way of transfer within the meaning of the Rules. 9. Besides the above infirmities there are two other impoGtant considerations which weigh heavily against the respondents. The peti­ tion before the Tribunal was filed by the respondents after a period of B 13 years of their initial appointment in the Chief Office, during which period many orders consistent with the terms of service as indicated in the Memorandum Annexure 'A' must have been passed in favour of the other incumbents of the service. The courts and tribunals should be slow in disturbing the settled affairs· in a service for such a long period. Besides, the respondents, in the application before the Tri­ bunal, did not implead their colleagues who have been prejudicially affected by the impugned judgment. It cannot be assumed that the respondents had no knowledge about them. As was rightly pointed out by Mr. Sitharamaiah, although in paragraph 4(d) of their application before the Tribunal (page 53 of the paper book) the respondents mentioned one Vijaya Chand alleged to be an officiating LDC who was put over them, they did not implead even him. We are, therefore. of :the view that apart from the merits of the case, the petition of the respondents before the Tribunal was fit to be rejected on the ground of the above mentioned last two points. 10. Finally the learned counsel for the respondents said that in any event they should not be put below those pers_ons who had not successfully completed their probation in the Chief Office on the date the respondents joined there. We do not find any merit in this submis­ sion either. Accordingly, the judgment under appeal passed by the Andhra Pradesh Administrative Tribunal is set aside and the Rep­ resentation petition of the respondents is dismissed. The appeal is allowed, but, in the cifcumstances, there will be no order as to costs. Writ Petitions (Civil) Nos. 11135-37of1984: 11. These applications under Article 32 of the Constitution have been filed by the three petitioners who were appointed during the r, years.1965-67 in the Central Office of the Inspector General of Police (now redesignated as Director General and Inspector General of Police), Andhra Pradesh. Since they had not passed the general exami­ nation held for the purpose, a special qualifying examination was held in 1968 to facilitate the petitioners and other simiiarly situated persons to pass at the test. The petitioners, however, did not appear at this H 490 SUPREME COURT REPORTS [1990) Supp. 1 S.C.R. A examination. Another special qualifying examination was held in 1974 and the petitioners successfully cleared the same. Thereafter, by an order dated 17.6.1976 (Annexure 'E'), their services were regularised with effect from 1.8.1972. Their claim i.n the present case is for counting their seniority with effect from their initial dates of appomtment in the years 1965-67 12. It has been contended by the learned counsel for the petitioners that they were not qualified for the 1968 examination and at the very first opportunity available to them in 1974, they passed the special qualifying examination and, therefore, they shoul,d not be penalised by ignoring their services rendered before 1.8.1972. 13. It is significant to note that although the impugned order was passed in 1976, the petitioners did not commence any legal remedy before the year 1984 when they filed the present application directly before this Court after a period of 8 years. 14. By way of a preliminary objection, Mr. Subbarao, the learned counsel appearing for some of the officers impleaded as respondents in this petition, has drawn our attention to the fact that earlier a writ application, being W.P. No. 106 of 1980, was filed by some of the employees of the central office making similar claim of seniority and the present petitioners specifically stated that their case would be governed by the judgment in the e'rlier writ petition which was ultimately dismissed by this Court on August 8, 1986 (M. Nirmala and Others v. State of Andhra Pradesh and Others, [1986) 3 SCR 507. Mr. Subbarao contends that after the dismissal of the earlier case, the petitioners now cannot be permitted to urge any new ground in sup­ port of their claim. The reply on behalf of the petitioners is that if the earlier writ application had been allowed, they would also be entitled to succeed, but after its dismissal their claim cannot be rejected with­ out examination of the additional questions which did not arise in the earlier case. 15. On merits the reply on behalf of the Government of Andhra Pradesh is that the respondent-officers had joined the office of the Inspector General of Police after qualifying at the general examination held for the purpose, and since the petitioners did not appear at the examination, they cannot be equated with the respondent officers. The general examinations for recruitment to the central office were held in 1964, 1965, 1966, 1967 and 1968, but the petitioners did not choose to avail of the ordinary method for joining the service. Instead GOVT. OF A.P. v. M.A. KAREEM [SHARMA, J.] 491 they entered the service by the side aoor and their department, taking an attitude liberal to them and other similar officers, decided to hold special qualifying examinations. It is contended that in these circum­ stances the rule as laid down in Memorandum No. 473/Yl/70-5 dated 24. 7 .1970 (Annexure 'VII') is clearly applicable, and for the purpose of seniority the petitioners were given the advantage of two years of service rendered by them prior to their successfully completing the special qualifying examination. The argument is well founded. The learned counsel also pointed out that the standard of the special qua­ lifying examination was not the same as that of the general examina­ tion held for recruitment. 16. Besides the weakness in the case of the pel!l!oners as mentioned above, the delay of 8 years on their part to initiate legal remedy is fatal and these writ petitions are fit to be rejected on this ground alone. The writ applications are, therefore, dismissed with costs payable to the respondents represented by Mr. Subbarao, G.N. Appeal allowed and writ petition dismissed.