Andhra Pradesh High Court – Amravati
A.Nageshwara Rao, vs State Of Andhra Pradesh, on 17 April, 2025
APHC010406092019
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3396]
(Special Original Jurisdiction)
THURSDAY, THE SEVENTEENTH DAY OF APRIL
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA
WRIT PETITION Nos. 19453, 19482, 19505 & 19507/2019
Writ Petition No.19453 of 2019:
Between:
1. K.VYKUNTA RAO, S/O. ABBAIAH, AGED ABOUT 56 YEARS, A.R.H.C.
2428, DISTRICT ARMED RESERVE, VISAKHAPATNAM CITY,
VISAKHAPATNAM.
2. YELAMANCHILI SURYA RAO, S/O. LATE RAMULU, AGED 56 YEARS,
A.R.H.C. 252, DISTRICT ARMED, RESERVE, VISAKHAPATNAM.
3. T.RAMBABU, S/O. SUDARSHAN RAO, AGED 58 YEARS, A.R.H.C.
1256, DISTRICT ARMED RESERVE SRIKAKULANN.
...PETITIONER(S)
AND
1. STATE OF ANDHRA PRADESH, REP., BY ITS PRINCIPAL
SECRETARY, HOME (SER-II) DEPARTMENT, SECRETARIAT,
VELAGAPUDI, AMARAVATHI.
2. THE DIRECTOR GENERAL OF POLICE, ANDHRA PRADESH,
MANGALAGIRI, GUNTUR DISTRICT.
3. THE DEPUTY INSPECTOR GENERAL OF POLICE,
VISAKHAPATNAM RANGE, VISAKHAPATNAM.
4. THE COMMISSIONER OF POLICE, VISAKHAPATNAM CITY,
VISAKHAPATNAM.
5. THE SUPERINTENDENT OF POLICE, SRIKAKULAM, SRIKAKULAM
DISTRICT.
6. THE SUPERINTENDENT OF POLICE, VISAKHAPATNAM.
...RESPONDENT(S):
Writ Petition No.19482 of 2019:
Between:
1. A.NAGESHWARA RAO, S/O. NARAYANA, AGED ABOUT 55 YEARS,
A.R.H.C. 326, DISTRICT ARMED RESERVE, ANANTAPURAM.
2. T.CHENNARAYUDU, S/O. BALA CHENNAIAH, AGED 56 YEARS,.
A.R.H.C. 821, DISTRICT'ARMED RESERVE, KADAPA.
3. K.SIVA KUMAR REDDY, S/O. LATE ROSI REDDY, AGED 55 YEARS,
A.R.H.C.NO. 168, DISTRICT ARMED RESERVE, KURNOOL.
2
...PETITIONER(S)
AND
1. STATE OF ANDHRA PRADESH, REP., BY ITS PRINCIPAL
SECRETARY, HOME (SERVICES -II) DEPARTMENT, SECRETARIAT,
VELAGAPUDI, AMARAVATHI.
2. THE DIRECTOR GENERAL OF POLICE, ANDHRA PRADESH,
MANGALAGIRI, GUNTUR DISTRICT.
3. THE DEPUTY INSPECTOR GENERAL OF POLICE, ELURU RANGE,
ELURU.
4. THE DEPUTY INSPECTOR GENERAL OF POLICE, KURNOOL
RANGE, KURNOOL.
5. THE SUPERINTENDENT OF POLICE, ANANTAPURAM,
ANANTAPURAM DISTRICT.
6. THE SUPERINTENDENT OF POLICE, KADAPA, KADAPA DISTRICT..
7. THE SUPERINTENDENT OF POLICE, KURNOOL, KURNOOL
DISTRICT.
...RESPONDENT(S):
Writ Petition No.19505 of 2019:
Between:
1. SHAIK MOULALI, S/O. SHAIK MAHABUB, AGED ABOUT 57 YEARS,
A.R.H.C. 1934, DISTRICT ARMED RESERVE, GUNTUR.
2. K.L.NARAYANA, S/O. VENKATAIAH, AGED 55 YEARS, A.R.H.C,.
2176, DISTRICT ARMED RESERVE, NELLORE.
3. S.YESOB, S/O. RAMAIAH,. AGED 55 YEARS, A.R. H.C. NO. 2120,
DISTRICT ARMED RESERVE, PRAKASAM DISTRICT.
...PETITIONER(S)
AND
1. STATE OF ANDHRA PRADESH, REP., BY ITS PRINCIPAL
SECRETARY, HOME (SERVICES -II) DEPARTMENT, SECRETARIAT,
VELAGAPUDI, AMARAVATHI.
2. THE DIRECTOR GENERAL OF POLICE, ANDHRA PRADESH,
MANGALAGIRI, GUNTUR DISTRICT.
3. THE DEPUTY INSPECTOR GENERAL OF POLICE, GUNTUR RANGE,
GUNTUR.
4. THE SUPERINTENDENT OF POLICE, GUNTUR, GUNTUR DISTRICT.
5. THE SUPERINTENDENT OF POLICE, NELLORE, NELLORE
DISTRICT.
6. THE SUPERINTENDENT OF POLICE, ONGOLE, PRAKASAM
DISTRICT.
...RESPONDENT(S):
Writ Petition No.19507 of 2019:
Between:
1. CH.RAMAKRISHNA, S/O. SATYANARAYANA, AGED ABOUT 59
3
YEARS, A.R.H.C. 2935, DISTRICT ARMED RESERVE, EAST
GODAVARI DISTRICT.
2. G.SRI RAMA SHEKAR, S/O. RAMANA MURTHY, AGED 57 YEARS,
A.R.H.C. 1972, DISTRICT ARMED RESERVE, WEST GODAVARI
DISTRICT.
3. CH.GOVINDA RAJULU, S/O. SANKAR RAO, AGED 54 YEARS,
A.R.H.C. 211, ON DEPUTATION TO INTELLIGENCE DEPARTMENT,
VIJAYAWADA, KRISHNA DISTRICT,
4. D.MOULALI, S/O. KHASIM, AGED 59 YEARS, A.R.H.C. 668,
DISTRICT ARMED RESERVE, VIJAYAWADA CITY.
...PETITIONER(S)
AND
1. STATE OF ANDHRA PRADESH, REP., BY ITS PRINCIPAL
SECRETARY, HOME (SERVICES -II) DEPARTMENT, SECRETARIAT,
VELAGAPUDI, AMARAVATHI.
2. THE DIRECTOR GENERAL OF POLICE, ANDHRA PRADESH,
MANGALAGIRI, GUNTUR DISTRICT.
3. THE DEPUTY INSPECTOR GENERAL OF POLICE, ELURU RANGE,
ELURU.
4. THE COMMISSIONER OF POLICE, VIJAYAWADA CITY,
VIJAYAWADA, KRISHNA DISTRICT.
5. THE SUPERINTENDENT OF POLICE, EAST GODAVARI DISTRICT
AT KAKINADA.
6. THE SUPERINTENDENT OF POLICE, WEST GODAVARI DISTRICT
AT ELURU.
7. THE SUPERINTENDENT OF POLICE, KRISHNA DISTRICT AT
MACHILIPATNAM.
...RESPONDENT(S):
Counsel for the Petitioner(S):
1. A TIRUPATHI GOUD
Counsel for the Respondent(S):
1. GP FOR HOME (AP)
2. GP FOR SERVICES I
The Court made the following:
COMMON ORDER:
These Writ Petitions have been filed challenging the application of
G.O.Ms.No.1, Home, dated 07.01.2016 to the Petitioners, despite they
entered A.R.Service from APSP much prior to the cut of date of the G.O i.e.,
4
01.01.2008 and consequently issuance of G.O.Ms.No.107, Home (Ser.II)
Department, dated 03.09.2019 by giving notional seniority to the direct
recruities of A.R, finalization of seniority ignoring the rights of the Petitioners
regarding their seniority from the date of their initial appointment in APSP and
seeking a declaration that they are entitled for promotions as A.R Sub-
Inspectors.
2. Since the issue involved in these petitions is one and the same, they
are being disposed of by this common order.
3. Heard Sri V.R.Reddy Kovvuri, learned counsel representing Sri
A.Tirupathi Goud, learned counsel for the Petitioners and Sri Gujjarlapudi
Raju, learned Government Pleader for Services-I.
4. Learned counsel for the Petitioners would submit that, Petitioners herein
are working as Head Constables in Armed Reserve (A.R) Police. They work
under A.P.P.S.Service Rules vide G.O.Ms.No.1263, dated 26.08.1959.
Learned counsel for the Petitioners has vehemently argued that, a right which
is accrued in favour of the Petitioners cannot be wiped out by way of
amendment after 18 years of their entry into A.R. It is further submitted that
the Government have issued G.O.Ms.No.299, dated 05.10.1999 incorporating
a provision for appointment of A.P.S.P.Constables as Armed Reserve Police.
(ii) Learned counsel for the Petitioners would further submit that, in
pursuance of G.O.Ms.299, learned Director General of Police had clarified
vide Memo dated 04.05.2001 regarding the procedure to be followed for
5
transfer of A.P.S.P.Constable as A.R.Constable and their seniority, wherein, it
is clearly held as follows:
“9. SENIORITY OF THE PCs OF APSP TRANSFERRED TO
DAR/CAR/SAR.
The seniority of the PCs of APSP selected and transferred to
DAR/CAR/SAR will be fixed with reference to the date of their first
appointment in APSP Units as their transferee to DAR/CAR/SAR are
ordered on administrative grounds and under specific provisions contained
in the special rules covering the conditions of appointment by transfer in the
Police force.
They are also eligible to appear for promotion tests conducted for
AR PCS for promotion to the posts of HCs in district AR/CAR/SAR after
completing the period of probation as PCs in DAR/CAR/SAR. The period of
service rendered by the PCs in APSP shall also be countered for the
purpose of promotion tests to the text higher post.”
(iii) Learned counsel for the Petitioners finally would submit that the
orders passed in earlier litigation between APSP (PC) and A.R(D) does not
come in the way of this Court for giving the clarity regarding applicability of
G.O.Ms.No.1 to the case of the Petitioners.
5. Per contra, learned Government Pleader for Services-I would submit
that the plea of the Petitioners regarding the seniority from the date of their
initial appointment was unturned by the Tribunal in O.A.No.2352 of 2007
stating that Rule 15(e) is applicable and it was upheld by the Hon’ble
Composite High Court of A.P., Hyderabad vide Common Order in
W.P.Nos.21610 of 2007 and Batch, dated 08.10.2013, wherein the Court
directed the Government to consider the feasibility of evolving a formula to
extend the benefit of weightage of service rendered by the A.P.S.P(PC) i.e.,
the Constables appointed to A.R by transfer from Special Battalion subject to
6
certain limit, duly taking into account the interests of Constables appointed
through direct recruitment and other modes over the period.
(ii) Learned Government Pleader would further submit that, in
pursuance of such orders, Government have issued G.O.Ms.No.1, dated
07.01.2016 and it is applicable to the Petitioners. Learned Government
Pleader would finally submit that, in the light of the order of this Court in
W.P.No.14013 of 2019, dated 11.02.2020, wherein, the Court categorically
held that, regarding the seniority Rule 15(e) is only applicable. Hence, prays
for dismissal of the petitions.
6. Refuting the submissions of learned Government Pleader, learned
counsel for the Petitioners, in reply, would submit that, they are not
challenging the validity of G.O.Ms.No.1 in these petitions. The query raised in
these petitions is as to the applicability of G.O.Ms.No.1 to the case of the
Petitioners, despite the G.O., is vivid regarding the effective date i.e.,
01.01.2008. Whereas the Petitioners entered in A.R.Service during the period
from 2001 to 2005 and also promoted as Head Constables in A.R.
7. Now the point that would emerge for determination is:
Whether G.O.Ms.No.1, Home, dated 07.01.2016, is applicable to the
case of the Petitioners regarding seniority?
8. Admittedly, Petitioners herein were initially appointed as Constables in
A.P.S.P.Battalion during the period from 1983 to 1987. They have joined as
Constables in A.R during 2001 to 2005 on conversion. The Petitioners belong
to Anantapur, Kadapa, Kurnool, Prakasam, Krishna, West Godavari, East
7
Godavari, Visakhapatnam and Srikakulam Districts. It is also not in dispute
that the Petitioners were promoted as Head Constables in A.R during 2008 to
2012 and have been working as such. The service conditions of the
Petitioners are governed by A.P.P.Subordinate Service Rules (Special Rules)
notified in G.O.Ms.No.1263, dated 26.08.1959.
9. The entry of the Petitioners into A.R is by virtue of an amendment
brought to the Service Rules by G.O.Ms.No.299 Home (Police Department),
dated 05.10.1999. It is so relevant to examine the object and reasons behind
to bring such an amendment to the Service Rules. G.O.Ms.No.299, dated
05.10.1999 and also the Memo issued by the Director General of Police
relating to clarification as to the point of the seniority after their entry into
A.R.Service.
10. For ready reference, G.O.Ms.No.299, dated 05.10.1999 is extracted
hereunder:
“GOVERNMENT OF ANDHRA PRADESH
ABSTRACT
Police Department – Andhra Pradesh Special Police – Certain
Amendments for the method of Recruitment in DAR/SAR/CPL-
amendments for the method of Recruitment of Police Constables in
DAR/CAR/SAR-Orders issued.
————————————————————————————-
Home Police Department
GO Ms. No.299 Dated: 05.10.1999
————————————————————————————-
Read the following:-
1) GO Ms. No. 270 Home (Police) Department dtd. 02.04.1999.
2) From the DG & IGP Rc.No. 314/R&T (Admn.2)/97, dtd.
19.02.1999.
***
8
Order:
The Director & Inspector General of Police, Andhra Pradesh,
Hyderabad in the ref. 2nd read above, the reported that at present
85% force of Andhra Pradesh Special Police Battalions being
deployed in Telangana Districts and Hyderabad City where there is
serious extremist and L&O problem. Hyderabad City being
communally hyper-sensitive, requires deployment of large
components of Armed Forces to ineet security and L&O
requirements. Acute shortage of Armed Forces has been
necessitating continuous deployment of Andhra Pradesh Special
Police in these areas for long spells without relief to the men
deployed. The un-duly long deployment is leading to serious adverse
affect on the Andhra Pradesh police men and they are not able to
attend to their domestic obligations. In order to relieve the Andhra
Pradesh Special Police men from continuous tension and longer out-
door duties, the Director General & Inspector General of Police has
proposed to fill-up the posts of Police Cumtables in District Anned
Reserve/City Armed Reserve/Special Armed Reserve/Central Police
lines by transfer from Andhra Pradesh Special Police Constables
who have completed 10 years of service and “STRICTLY ON
SENORITY BASIS, BY DISPENSING WITH THE DIRECT
RECURITMENT TO THE POST OF POLICE CONSTABLES IN
DAR/CAR/SAR CPL”.
2) The Government after careful examination of the matter, accept
that proposal of the Director General and Inspector General of Police
and direct that direct Recruitment to the posts of Police Constables in
District Armed Reserve/City Armed Reserve/Special Armed
Reserve/Central Police lines dispensed with the immediate effect and
that the posts of Police Constable in District Armed Reserve/City
Armed Reserve/Special Armed Reserve/Central Potice tines filled, up
by transfer of Police Constables of Andhra Pradesh Special Police
Battalions who have completed 10 years of service.
3) The following notification will be published in the extra ordinary
issue of the Andhra Pradesh gazette.
NOTIFICATION
In exercise of the powers conferred by the provision to article
309 of the constitution of India and of all other powers hereunto
enabling, the Governor of Andhra Pradesh hereby makes the
following amendments to the special rules for the Andhra Pradesh
Police Subordinate service issued in GO Ms.No. 1263 and G.A
(Rules) department dated the 26th day of Aug. 1959 as amended
from time to time.
AMENDMENT
The said rules is in Annexure-l under “Class-1” under
Category 6 (b) Constables District Armed Reserve, City Armed
Reserve, Head Quarters and Special Armed Reserve, Central Police
lines) in Column (1) and the corresponding / in Column 2.3 thereof,
the following shall be substituted namely:-
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————————————————————————————————–
Class & Category Method of appointment Limitation Appointing Authority
————————————————————————————————————————–
1 2 3 4
—————————————————————————————————
Class-I By Transfer from Nil In muffasil, the Supdt.
Category 6(b) Andhra Pradesh of Police concerned in
Constables (District Special Police Battalions Visakhapatnam and
armed Reserve, Vijayawada Cities, the
City armed Commissioner of Police
Reserve, Head concerned and in
quarters and Hyderabad City, the
Special armed Dy.Commissioner of Police
Reserve, City Armed Reserves,
Central Head Quarters, Hyd City
Police lines) allotment from
State Level Recruitment
Board.
—————————————————————————————————————————– ———
In the said rules, in Annexure-II under Class-ll in Col.l 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. I, II & III thereof,
the following shall be substituted Namely:-
—————————————————————————————————–
Class & Category Age limit for appointment Qualification Appointing Authority otherwise than promotion
—————————————————————————————————————————
Class-I Nil Police Constables of Andhra
Category 6(b) Pradesh Special Police who have
Constables (District completed (10) years of service
armed Reserve, are eligible for appointment as
City armed Police Constables in Constables
Reserve, Head (District Armed Reserve, City
quarters and Armed Reserve, Head Quarters
Special armed and Special Armed Reserve,
Reserve, Central Police Lines) by
Central recommendation of the Inspector
Police lines) General of Police, Andhra Pradesh
Special Police Battalions and
subject to full-filling the local
candidature of the respective district
(or) unit.
———————————————————————————————————————— ——
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)
————————————————————————————————————————
10
11. The particulars of the Petitioners, which are crucial, are mentioned
herein in a tabular form:
Case No. Name of the Age Native District Entry into the category
Petitioner APSP ARPC ARHC
W.P.No.19453 K.Vykunta Rao 56 Visakhapatnam 1983 2005 24.10.10
of 2019
Y.Surya Rao 56 Visakhapatnam 1983 2001 01.07.08T.Rambabu 58 Srikakulam 1983 2002 19.05.09
W.P.No.19482 A.Nageswara 55 Anantapuramu 1987 2002 2010
of 2019 Rao
T.Chennarayudu 56 Kadapa 1983 2004 2010K.Siva Kumar 55 Kurnool 1983 2003 2010
Reddy
W.P.No.19505 Shaik Moulali 57 Prakasam 1983 2004 01.11.11
of 2019
K.L.Narayana 55 Prakasam 1985 2001 23.03.12S.Yesob 55 Prakasam 1983 2005 04.04.11
W.P.No.19507 Ch.Ramakrishna 59 East Godavari 1983 2001 18.07.08
of 2019
G.Srirama 57 West Godavari 1983 2001 10.06.09
Sekhar
Ch.Govindarajulu 54 Krishna 1983 2004 08.10.08D.Moulali 59 Vijayawada 1983 2004 21.07.10
12. Before taking a decision over this issue, it is essential to look into the
earlier litigations on the subject seniority and the same is mentioned below:
In the year 2007, direct recruities of A.R filed O.A.No.2352 of 2007
before the APAT, Hyderabad questioning the higher seniority to the Police
Constables appointed by transfer in A.R from APSP Battalions. Similarly,
some of the O.As were also filed before the APAT. The learned Tribunal
disposed of O.A.No.2352 of 2007 vide Order dated 23.08.2007 directing to
11determine the seniority of the unofficial respondents therein from the date of
their confirmation in the service of DAR in terms of Rule 15(e) of the Service
Rules. Aggrieved by the orders of the Tribunal, the Government filed
W.P.No.24847 of 2007 before the Composite High Court of A.P and some of
the aggrieved persons also filed Writ Petitions against the similar orders. The
High Court vide Common Order dated 08.10.2012, upheld the orders passed
by the Tribunal in the respective O.As and also directing the Government to
consider the feasibility of evolving a formula to extend the benefit of weightage
of service rendered by the Constables appointed to AR by transfer from
Sepcial Battalions, subject to certain limit, duly taking into account the
interests of the Constables appointed through direct recruitment and other
modes over the period. In obedience to the said orders, the Government have
issued G.O.Ms.No.1 dated 07.01.2016. Aggrieved by the said G.O., some of
the APSP Constables including some of the Petitioners also approached the
Tribunal and filed O.A.No.317 of 2006 and the same was dismissed on
04.04.2023. While so, the convertee constables filed O.A.No.954 of 2018
before the Tribunal to send them for pre-promotional training, wherein, the
Tribunal directed the Respondents therein not to proceed with the pre-
promotional training without finalizing the seniority. Again the Petitioners
herein filed W.P.No.8857 of 2019 before this Court for non-implementation of
the orders passed in O.A.No.954 of 2018, wherein, this Court directed the
Respondents to complete the process within a period of three months.
Subsequently, some of the Petitioners herein filed W.P.No.14013 of 2019 not
12
to conduct pre-promotional training for ARHCs until finalization of the seniority
list. This Court dismissed the said petition on the ground that G.O.Ms.No.1 is
not applicable to them.
13. In the light of the Orders passed by a Coordinate Bench of this Court
and also the Hon’ble Division Bench judgments apart from the Orders passed
by A.P.A.T, one thing is clear so far. The Orders would show that, in case of
transfer of A.P.S.P.Police Constable as A.R Police Constable, seniority shall
be reckoned from the date of entry as A.R subject to calculation of their past
service in A.P.S.P as per G.O.Ms.No.1. It is pertinent to mention that, at
every stage, Courts protected the right of the persons and directed the
authorities not to revert the persons till the fixation of formula.
14. It is needful to mention that Section 15(e) is not in existence. It is
beneficial to extract Rules 15(c) and 15(e), which read as under:
“Rule 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.
Rule 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.”
15. In the earlier litigation, Courts categorically held that Rule 15(e) is
applicable but not Rule 15(c) as decided by A.P.A.T in O.A.No.2352 of 2007,
13
dated 23.08.2007 which was upheld by the Composite High Court of A.P in
W.P.No.21610 of 2007 and Batch dated 08.10.2013, which was reiterated in
W.P.No.14013 of 2019, dated 11.02.2020 by a learned Single Judge of this
Court. Hence, the prayer regarding applicability Rule 15(c) to the Petitioners
falls to ground.
16. Be that as it may, this Court would like to examine the applicability of
G.O.Ms.No.1 to the present Petitioners. It is profitable to extract
G.O.Ms.No.1, which reads as follows:
GOVERNMENT OF ANDHRA PRADESH
ABSTRACT
HOME (LEGAL.II) DEPARTMENT Police Andhra Pradesh Police
Subordinate Service Rules Fixation of seniority of Police Constables in
AR/SARCPL Police Constables who are appointed by transfer (by
Conversion) from APSP in terms of orders dated 8.10.2013 of High Court of
Andhra Pradesh, in W.P.No.26765/2011 and batch cases by applying
weightage formula for the purpose of further promotion in Armed Reserve
Adhoc Rules Orders Issued.
—————————————————————————————————-
HOME (LEGAL.II) DEPARTMENT
G.O.MS.No. 1 Dated: 07-01-2016
Read the following:-
1. G.O. Ms. No. 1263 General Administration (Rules) Dept., dated 26-
08-1959.
2. G.O.Ms.No. 270 Home Department, dated 2-4-1990.
3. G.O.Ms.No. 299. (Home Police.D) Department, dated 5-10-1999.
4. G.O.Ms.No. 329 Home (Legal.II) Department, dated 28-12-2010.
5. APAT order dated 9-9-2011 in O.A.No. 10216/2008 and other cases.
6. G.O. Ms. No. 54, Home (Legal.II) Department, dated 18-02-2013.
7. High Court order dated 08-10-2013 in W.P. Nos. 26765/2011 and
batch cases.
14
8. From the Director General of Police, Andhra Pradesh, Hyderabad,
Lr.Rc.No.59/E3/2014, dated 22-2-2014 & 09-12-2015.
9. Opinion of the Government Pleader, High Court of AP,
Hyderabad, dated 13-10-2015.
*****
ORDER:
In the letters 8th read above, the Director General of Police, Andhra
Pradesh, Hyderabad, has stated that the Government in the G.O. 1st read
above, issued Police Sub-Ordinate Service Rules from the rank of Police
Constable to Sub-Inspector for different organizations in Police Department
and the Provisions were made for fixation of seniority to the individuals who
were appointed by transfer as follows:-
Rule 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”.
Rule 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”.
2. In the reference 2nd read above, an amendment was issued to
G.O.Ms. No. 1263 General Administration (Rules) Department, dated 26-8-
1959 by making a provision for appointment by transfer of eligible Police
Constables to District Armed Reserve and Cite Armed Reserve from
Special Police Battalions and in the G.Os 3rd and 4th read above, the terms
and conditions for such appointment, by transfer were specified.
3. Seniority of PCs(AR) / PCs (SAR CPL) who were appointed by
transfer from PCs (APSP) was fixed from the date of initial appointments
PC (APSP) by following the Rule 15(c) in all Districts. However, in the year
2008, direct recruit ARPCs and convertee ARPCs of Srikakulam and
Vizianagaram Districts assailed the system of following Rule 15(c) initially
in the APAT and subsequently in the High Court of Judicature at
Hyderabad and obtained “Status-Quo@ orders.
4. He has also stated that Sri Lundu Krishna Rao direct recruit AR PC &
others of Srikakulam District filed O.A.No. 10216/2008 against the seniority
list prepared by SP, Srikakulam District as per flute 15 (c) of the Andhra
Pradesh Police Subordinate Service Rules. The APAT in its orders dt.9-9-
2011 have directed the respondents to count the seniority of the unofficial
respondents in terms of Rule 15 (e) of the AP Police Subordinate Service
Rules. Against the above APAT orders, the Convertee PCs (AR) of
Srikakulam District i.e., Sri P.Kokanadham, PC 183 of Srikakulam District
and others filed the WP No.26765/2011 in the High Court to set aside the
above APAT Orders dated 9-9-2011 in O.A.No.10216/2008.
15
5. The High Court on 14-10-2011 in WP No. 26765/2011 have issued
orders to maintain Status quo
6. Further, Sri Jummu Krishna, direct recruit AR PC & Others of
Vizianagaram District filed an O.A.No. 2857/2008 in the APAT against the
seniority list prepared by the Superintendent of Police, Viziariagaram
District as per Rule 15 (c) of the AP Police Subordinate Service Rotes vide
Memo No. 625/A1/2008, dated 8-3-2008. The APAT in its Orders dated 3-
2-2012 directing the respondents to take further action regarding seniority
of the unofficial respondents after the disposal of the WP No. 24847/2007
(which was filed by the Medak District) in the erstwhile State of AP pending
before the High Court on the basis of the Judgment of the High Court
7. The Hon’ble High Court disposed the W.P.Nos. 21610/2007,
24847/2007, 26765/2011, 31595/2012, the 33217/2012 and 18254/2013 by
upholding the above APAT orders and directed the Government to consider
the feasibility of evolving a formula to extend the benefit of weightage of
service rendered by the ARPCS who were appointed by transfer from
APSP subject to certain limit, duly taking the interest of the Constables
appointed by direct recruitment or other modes over the period and till such
time the formula is evolved, the reversion which are warranted on account
of implementation of the orders passed by the Tribunal shall stand stayed.
8. The Director General of Police, Andhra Pradesh, Hyderabad has
requested to approve the following formula for fixation of seniority with
effect from 1-1-2008 since the litigation started from 1-1-2008 in respect of
APPCS and SARCPL PCs who were appointed by transfer from the APSP
by taking into consideration of the orders of the Hon’ble High Court of
Judicature at Hyderabad:
“Shall be given a weightage of one year for every completed two years
of service rendered as PC In APSP, subject to a maximum of seven
years. For the purpose of calculation of weightage under this clause,
fractions, if any are to be Ignored.”
Date of fixation of seniority: If length of service as PC APSP is above
13 years and less than 14 years, then weightage is 6 years. If the date
of appointment as PCAR is 18-01-2014 then date of fixation of
seniority is 18-01-2008.
9. Government after careful examination of the entire matter hereby
approved the following formula as proposed by the Director General of
Police, Andhra Pradesh, Hyderabad, for fixation of seniority in respect of
APPCs and SARCPL PCs appointed by transfer from the APSP.
10. The adhoc Rule hereby made shall be deemed to have come into
force with effect from 01-01-2008.
11. Accordingly, the following notification is published in the Andhra
Pradesh Gazette:
16
NOTIFICATION
Notwithstanding anything contained in the Andhra Pradesh Police
Subordinate Service Rules issued vide G.O.Ms.No. 1263. General
Administration (Rules) Department. dated: 26-8-1959 as amended from
time to time makes the following Adhoc Rule:-the Governor of Andhra
PradeshAd-HOC RULE
“The seniority of Police Constables in Armed Reserve, appointed by
transfer from Special Police Battalions shall be fixed giving weightage of
one year of service for every completed two years of service rendered as
Police Constables in Special Battalions, subject to a maximum of seven
years.”
Note: For the purpose of calculation of weightage under this clause
fractions, if any are to be ignored.
12. The Director General of Police, Andhra Pradesh, Hyderabad, shall
take further necessary action in the matter.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA
PRADESH)
Dr. MANMOHAN SINGH
PRINCIPAL SECRETARY TO GOVERNMENT (FAC)”
17. A fair look at the G.O referred to supra would show that, there is no
ambiguity about the effective date mentioned. Doubtlessly G.O.Ms.No.1 was
issued on 07.01.2016 w.e.f 01.01.2008. At this juncture it is contextual to look
into the orders passed by the Hon’ble Division Bench of High Courts of
Telangana and this Court in W.P.Nos.4636 of 2018 and its batch dated
25.01.2022 and 15291 of 2022 & Batch, dated 03.10.2023 respectively.
W.P.No.4636 of 2018 & Batch of High Court of Telangana (Division
Bench) between D Swamy Joshua & Others vs. State of Telangana &
Others, dated 25.01.2022:
18. Petitioners in this case were initially appointed as PCs in A.P.S.P under
service rules vide G.O.Ms.No.1263. After completing ten years of service,
they opted for transfer and have become members of A.R. Service rules were
17amended for PC (Civil) vide G.O.Ms.No.374, dated 14.12.1999. As there was
a provision for transfer to Civil Police from AR(PC), Petitioners were
transferred to Civil Police. State has amended said rule by G.O.Ms.No.19,
dated 06.02.2018 and for the first time introduced a weightage formula to the
effect that, in case of conversion from PCs (AR, SARCPL) to Police (Civil) the
individual shall be given weightage of one year for every completed two years
of service rendered in his parent wing subject to a maximum of seven years.
19. Petitioners who are aggrieved by the said amendment, preferred the
batch of cases. Rule is silent about retrospective effect. The Court, after
scrutinizing the issue thoroughly by placing reliance on the judgments of the
Hon’ble Supreme Court of India, categorically held that, all these Constables
who have come prior to 06.02.2018 are entitled for grant of seniority and all
those who have come on transfer after 06.02.2018 shall be governed by the
amended recruitment rules. The cases referred and the analogy that was
drawn, points raised regarding applicability of the amendment, were discussed
at length and after extracting relevant discussion and findings in
W.P.No.21610 of 2007, dated 08.10.2013, the Division Bench of High Court of
Telangana in W.P.Nos.4636 of 2018 & Batch, dated 25.01.2022, held at Para
No.49 as follows:
“49. In the considered opinion of this Court, as the
Recruitment Rules provided for transfer only to the extent of
l0% posts, the petitioners at the relevant point of time opted for
transfer to Civil Police and they would have certainly received
promotions by now in the parent organisation. The
Amendment in the Recruitment Rules, i.e., G.O.Ms.No.19,
dated 06.08.20I8 has been introduced and for the first time, a
18weightage formula has been introduced by the State
Government under the Recruitment Rules governing the field,
meaning thereby, wiping the past seniority and therefore, once
a right which has accrued in favour of the petitioners cannot be
wiped out by the impugned Amendment and the Amendment
is certainly not at all applicable with retrospective effect. The
question of depriving the petitioners by making the
Amendment applicable with retrospective effect does not arise.
Therefore, this Court is of the considered opinion that all those
constables who have come prior to 06.02.2018 are certainly
entitled for grant of seniority and all those constables who
have come on transfer after 06.02.2018 shall be governed by
the Amended Recruitment Rules.
20. Coming to the facts of the present case, the language employed in
G.O.Ms.No.19 dated 06.02.2018, is very same in G.O.Ms.No.1, dated
07.01.2016. The only difference is G.O.Ms.No.1 is meant for the persons who
converted as AR (PC) from APSP Battalion, whereas, G.O.Ms.No.19, dated
06.02.2018 issued by Telangana State is for conversion of AR (PC) as Civil
Police. In G.O.Ms.No.19, retrospective operation of G.O is absent, whereas,
G.O.Ms.No.1 shows that it is w.e.f 01.01.2008. Such being the case, the
same analogy is applicable to the present set of facts, since the Petitioners
herein have become AR (PCs) much prior to the date of retrospective effect.
W.P.No.15291 of 2022 & Batch of High Court of A.P.(Division Bench)
between A.Sow Reddy vs. State of A.P, dated 03.10.2023:
21. It is a case where Petitioners were initially appointed as P.C in A.R and
thereafter converted as Police Constables (Civil). Their initial appointment is
under Service rules notified vide G.O.Ms.No.1263, General Administration
(Rules) Department, dated 26.08.1959. Subsequently, a provision was made
for appointment of Police Constables AR, City AR and Special AR by transfer
of PC (Civil) specifying cadre strength and eligibility being one should
19complete the age of 40 years vide G.O.Ms.No.194, Home (Police-B)
Department, dated 22.07.1999. While so, the D.G.P., while referring to the
judgment of the Composite High Court of A.P., in W.P.No.26865 of 2011 and
Batch, made certain recommendations for amendment of Rules. In pursuance
of such order, Government have issued G.O.Ms.No.95 Home (Legal.II)
Department, dated 31.05.2017 to the effect that the seniority in respect of
P.Cs of (Civil) appointed by transfer from AR / SAR CPL shall be given a
weightage of one year for every completed two years of service rendered as
PC (AR / SAP CPL) (Men) subject to a maximum of seven years. For the
purpose of calculations, fractions if any are to be ignored.
22. Challenging the said amendment and its applicability, Writ Petitions
were preferred. The Writ Petitions were allowed holding that the Petitioners
expressed their willingness for being appointed as PCs (Civil) in terms of
unamended rules, as such, applying the amended rule, is a clear infraction of
the fundamental rights guaranteed under Chapter III of the Constitution of
India.
23. The Hon’ble Division Bench of this Court in W.P.Nos.15291 of 2022 &
Batch, dated 03.10.2023 held as follows:
“17. Admittedly, all the writ petitioners were initially appointed as
Armed Reserve Police Constables during the years spreading over
1989 to 1998. It is absolutely not in controversy that as per the
unamended Rule 10 (ii) (ii), the seniority would have to be reckoned
from the date of initial appointment in the former category i.e., Armed
Reserve Police Constable. The amended Rule 10 (ii) (ii) came into
effect by virtue of the notification issued by the State Government vide
G.O.Ms.No.95 dated 31.05.2017. The unamended and amended
position of Rule 10 (ii) (ii) is as follows:
20
“Unamended Rule:
The seniority of police constables of Armed reserve or
Andhra Pradesh Special Police Battalions transferred to
this service shall be determined with reference to their
date of first appointment in the former category.
Amended Rule:
Rule 10 (ii) (ii):
The seniority in respect of PCs of (Civil) (Men) appointed
by transfer (Conversion) from PCs (AR/SAR CPL) (Men)
shall be fixed as follows:
“shall be given a weightage of one year for every
completed two years of service rendered as PC (AR/SAR
CPL) (Men), subject to a maximum of seven years.
Note: For the purpose of calculation of weightage under
this clause, fractions, if any are to be ignored.”
24. In the case of Sub-Inspector Rooplal and another vs. LT.Governor
through Chief Secretary, Delhi and others1 the Hon’ble Supreme Court, at
Paragraph
Nos.15 and 16, held as follows:
“15. We will now take up the question whether the appellants are
entitled to count their service rendered by them as Sub-Inspector in the
BSF for the purpose of their seniority after absorption as Sub-Inspector
(Executive) in Delhi Police or not. We have already noticed the fact that
it is pursuant to the needs of Delhi Police that these officials were
deputed to Delhi Police from the BSF following the procedure laid down
in Rule 5(h) of the Rules and subsequently absorbed as contemplated
under the said Rules. It is also not in dispute that at some point of time
in the BSF, the appellants’ services were regularised in the post of Sub-
Inspectors and they were transferred as regularly appointed Sub-
Inspectors to Delhi Police force. Therefore, on being absorbed in an
equivalent cadre in the transferred post, we find no reason why these
transferred officials should not be permitted to count their service in the
parent department. At any rate, this question is not res Integra and is
squarely covered by the ratio of judgments of this Court in more than
one case. Since the earlier Bench of the tribunal relied upon
Madhavan’s case to give relief to the deputationists, we will first
consider the law laid down by this Court in Madhavan`s case (supra).
1
2000) 1 SCC 644
21This Court in that ease while considering a similar question, came to the
following conclusion:
“We may examine the question from a different point of view.
There is `not-much difference between deputation and
transfer. Indeed, when a deputationist is permanently
absorbed in the CBI, he is under the rules appointed oh
transfer. In other words, deputation may be regarded as a
transfer from one government department to another. It will
be against all rules of service jurisprudence, if a government
servant holding a particular post is transferred to the same or
an equivalent post in another government department, the
period of his service in the post before his transfer is not
taken into consideration in computing his seniority in the
transferred post. The transfer cannot wipe out his length of
service in the post from which he has been transferred. It has
been observed by this Court that it is a just and wholesome
principle commonly applied where persons from different
sources are drafted to serve in a new service that their pre-
existing total length of service in the parent department
should be respected and presented by taking the same into
account in determining their ranking in the new service
cadre. See R.S. Mokashi and Ors, v. l.M. Menon and Ors.,
[1982] 1 SCC 379 and Wing Commander J, Kumar V. Union
of India and Ors., [1982] 3 SCR 453.”
16. Similar is the view taken by this Court in the cases of K.S. Mokashi
and Ors. and Wing Commander J, Kumar (supra) which judgments
have been followed by This Court in Madhavan’s case. Hence, we do
not think it is necessary for us to deal in detail as to the view taken by
this Court in those judgments. Applying the principles laid down in the
above referred cases, we hold the appellants are entitled to count the
substantive service rendered by them in the post of Sub-Inspector in the
BSF while counting their service in the post of Sub-Inspector
(Executive) in Delhi Police force.”
25. In the case of State of Gujarat and another vs.Raman Lal Keshav Lal
Soni and others2, a Constitutional Bench of the Hon’ble Apex Court, at
paragraphs 6, 22, 24, 26, 48, 51 and 52, held as follows:
“6. At this juncture, we may mention that prior to the enactment of
the Gujarat Panchayats Act, 1961, there were in force in the State
of Gujarat the Bombay Village Panchayat Act, 1958, the Bombay
Local Boards Act, 1923, the Bombay District Municipal Act, 19012
1983) 2 SCC 33
22and the Bombay Municipal Boroughs Act, 1925. The Bombay
Village Panchayat Act 1958 and the Bombay Local Boards Act,
1923 are repealed by Secs. 325 and 326 of the Gujarat Village
Panchayats Act, 1961. A local area declared to be a village under
the Bombay Village Panchayats Act, 1958 and a Panchayat
constituted under that Act, are deemed to be gram and panchayat
under the Gujarat Gram Panchayats Act. 1961. The Secretaries
and all officers and servants under the employment of the old
village Panchayats are to be Secretaries, officers and servants of
the new gram panchayats. A District Local Board constituted
under the Bombay Local Boards Act for a local area is to stand
dissolved. All property which stood vested in the district local
board P immediately before the appointed day is to be deemed
transferred to the district panchayat constituted for the local area,
called the successor panchayat. All officers and servants in the
employment of the District Local Board are similarly to be deemed
transferred to the service of the successor panchayat. Where local
areas are declared to be grams or nagars under Sec. 9 of the
Gujarat Gram Panchayats Act, 1961 and such areas correspond
to the limits of a municipal district or municipal borough under the
Bombay District Municipal Act or Bombay Municipal Borough Act,
it is provided by Sec. 307 of the Gujarat Panchayats Act that the
municipality previously functioning in such local area shall cease
to exist and that the councilors of such municipality shall constitute
an interim gram panchayat or interim nagar panchayat as the case
may be for the gram or nagar. It is also provided that all officers
and servants in the employment of the municipality immediately
before the date of declaration of the local areas as gram or nagar,
shall be officers and Servants of the interim panchayat.
22. Subject to the rules made under Sec. 203, appointment to
posts in the panchayat service, Sec. 205 provides, shall be made
by direct recruitment by promotion or by transfer of a member of
the State service to the panchayat service. Sec. 206 obliges the
State Government by general or special order to allocate to the
panchayat service:
“(i) such number of officers and servants out of the staff allotted or
transferred to a panchayat under sections (157, 158 and 325) as it
may deem fit,(ia) all officers and servants of the municipalities dissolved under
Sec. 307,
(ii) all officers and servants in the service of district local boards
and district school boards immediately before their dissolution
under this Act and transferred to the panchayats under secs. 155
and 326″.
23
It is further provided that officers and servants so allocated shall
be taken over by such panchayats in such cadre and on such
tenure, remuneration and other conditions of service, as the State
Government may determine. Sec. 204 provides that, subject to the
rules which the State Government may make, the expenditure
towards the pay, allowances and other benefits allowed to an
officer or servant of the panchayat service serving for the time
being under any panchayat shall be met by that panchayat from its
own fund. Sec. 207 enables the State Government to direct the
posting of officers of the Indian P administrative service and of
Class II services of the State under panchayat institutions. Sec.
208 enables a panchayat to obtain the services of any officer of
Government on loan. Sec. 210 provides for the constitution of a
Panchayat Services Selection Board and Sec.211 provides for the
constitution of District Panchayat Service Selection Committees
and District Primary Education Staff Selection Committees.
24. After the coming into force of the 1961 Act, several sets of
rules were promulgated and orders were made which concerned
the Gujarat Panchayat service. One such order was that made on
January 2, 1967 under Sec. 203 (2) directing that the Panchayat
service shall consist of district cadre, taluqa cadre and local cadre
and further specifying the posts which belonged to each of the
cadres. Amongst the rules made were the Gujarat Panchayat
Service (Absorption, Seniority, Pay. and Allowances) Rules, 1965,
which provided for the equation of posts, fixation of seniority,
scales of pay and allowances of “allocated employees”. “Allocated
employees’ were defined in the rules to mean persons allocated to
the panchayat service under the provisions of Sec. 206 (i). The
rules provide that every allocated employee holding a
corresponding post, immediately before the appointed day, shall
be appointed to the equivalent post. Equivalent post is defined to
mean a post in the panchayat service, which the State
Government may, by order, determine to be generally
corresponding to a post held by an allocated employee
immediately before the appointed day (called corresponding post)
having regard to the pay scales, the minimum educational and
other qualifications prescribed for the equivalent post and the
corresponding post and the nature and magnitude of
responsibilities attached to such posts. Therefore, unless
equivalence of posts is first determined, by order, by the
Government the Gujarat Panchayat Service Absorption Seniority
Pay and Allowances Rules, 1965 cannot be effectively applied.
Even so, the State Government did not make any order regarding
equation of posts of the staff in the local cadre and the fixation of
their scale of pay, although such orders were made in respect of
posts of other cadres. The State Government did not also extend
to the staff borne on the local cadre of the panchayat service the
benefit of revision of scales of pay, etc. which were made on the
24
basis of the recommendations of the two Pay Commissions,
though such benefit was extended to the District and Taluqa
cadres; nor did the Government make any order providing for
promotional avenues to employees of the local cadre. Aggrieved
by the deaf ear turned to their representations, certain ex-
municipal employees now included in the local cadre of the
Panchayat Service, for themselves and on behalf of other ex-
municipal employees now in the local cadre of the Panchayat
Service, filed a Writ Petition in the High Court of Gujarat seeking
various reliefs. The Writ Petition was resisted by the State of
Gujarat and the Development Commissioner on the principal
ground that the members of the Panchayat Service were not
Government servants and therefore, they were not entitled to
claim the reliefs asked by them. The High Court of Gujarat allowed
the Writ Petition holding that the members of the panchayat
service belonging to the local cadre were Government servants
and directed the State Government.
“(1) To make suitable orders under the Gujarat Panchayat
Service (Absorption, Seniority, Pay and Allowances) Rules, 1965
as regards the equivalence of posts, fixation of pay scales for such
posts, fixation of the petitioners and the person to whom they
represented an appropriate stage in such pay scales and other
incidental matters covered by the said rules and to give effect to
such orders from the date of allocation of the petitioners and the
persons whom they represent to the Panchayat Service, that is to
say, from February 11, 1969.
(2) To initially fix the pay scales and allowances and other
conditions of service, including the grant of house rent allowance,
compensatory local allowance, leave benefits, medical benefits,
retirement benefits, etc. Of the petitioners and the persons whom
they represent in the equivalent posts in the Panchayat Service in
accordance p with the provisions of the Gujarat Panchayats
Service (Absorption, Seniority, Pay and Allowances) Rules, 1965
and simultaneously give to them the benefit of such of the
accepted recommendations of the First Pay Commission (Sarala
Commission) in the said matters as were extended to the other
officers and servants of the Panchayat Service; alternatively,
having initially fixed the pay scales, allowances and other
conditions of service in the equivalent post in accordance with the
said rules, to revise subsequently such pay scales and other
conditions of service as per the accepted recommendations of the
First Pay Commission (Sarala Commission) in the said matters
with effect from February 11, 1969.
(3) To further revise the pay scales and allowances and
other conditions of service, including the grant of house rent
allowance, compensatory local allowance, leave benefits, medical
25benefits, retirement benefits, etc. of the Second Pay Commission
(Desai Commission) in the said matters and to give effect to such
revision on and with effect from January 1, 1975.
(4) To extend to the petitioners and the persons whom they
represent the benefit of interim relief in the same manner in which
such benefit was extended to the other officers and servants of the
Panchayat Service.
(5) To pay to the petitioners and the persons whom they
represent the amount payable to them as a consequence of the
rationalisation or revision of pay scale and allowances and other
conditions of service in pursuance of the directions contained in
clauses (I) to (4) hereinabove.
(6) To consider the question of making suitable provisions
in the Gujarat panchayats Service (Promotion to Cadres in State
Service) Rules, 1974 or by framing appropriate Rules for
promotion of the ex-municipal staff of the Panchayat Service to
consider the question of providing to such staff, by framing
appropriate rules, pro motional avenues to the other two cadres in
the Panchayat Service, namely, the taluka cadre and the district
cadre”.
26. The appeal was argued first as if the Amending Act had
not been passed and the main question argued in the appeal was
whether the members of the Panchayat service were Government
servants. The Writ Petitions were argued next and the question
argued in the Writ Petitions was about the constitutional validity of
the Amending Act.
48. From the summary of the provisions of the Amending
Act that has been set out above it requires no perception to
recognise the principal target of the amending legislation as the
category of ex-municipal employees’, who are, so to say, pushed
out of the Panchayat Service and are to be denied the status of
Government servants and the consequential benefits. The ex-
municipal employees are virtually the “poor relations”, the castle,
the Panchayat Service, is not for them nor the attendant
advantages, privileges and perquisites, which are all for the
“pedigree descendants” only. For them, only the out-houses. As a
result of the amendments they cease to be Government servants
with retrospective effect. Their earlier allocation to the Panchayat
Service is cancelled with retrospective effect. They become
servants of Gram and Nagar Panchayats with retrospective effect.
They are treated differently from those working in taluqa and
district panchayats as well as from the talatis and Kotwals working
in Gram and Nagar Panchayats. Their conditions of service are to
be prescribed by panchayats, by resolution, whereas the
conditions of service of others are to be prescribed by the
26
Government. Their promotional prospects are completely wiped
out and all advantages which they would derive as a result of the
judgments of the courts are taken away.
51. Now, in 1978 before the Amending Act was passed,
thanks to the provisions of the Principal Act of 1961, the ex-
municipal employees who had been allocated to the Panchayat
Service as Secretaries, officers and servants of Gram and Nagar
Panchayats, had achieved the status of government servants.
Their status as Government servants could not be extinguished,
so long as the posts were not abolished and their services were
not terminated in accordance with the provisions of Art. 311 of the
Constitution. Nor was it permissible to single them out for
differential treatment. That would offend Art. 14 of the Constitution.
An attempt was made to justify the purported differentiation on the
basis of history and ancestry, as it were. It was said that Talatis
and Kotwals who became Secretaries, officers and servants, of
Gram and Nagar Panchayats were Government servants, even to
start with, while municipal employees who became such
secretaries, officers and servants of Gram and Nagar Panchayats
were not. Each carried the mark or the ‘brand’ of his origin and a
classification on the basis of the source from which they came into
the service, it was claimed, was permissible. We are clear that it is
not. Once they had joined the common stream of service to
perform the same duties, it is clearly not permissible to make any
classification on the basis of their origin. Such a clarification would
be unreasonable and entirely irrelevant to the object sought to be
achieved. It is to navigate around these two obstacles of Art. 311
and Art. 14 that the Amending Act is sought to be made
retrospective, to bring about an artificial situation as if the erstwhile
municipal employees never became members of a service under
the State. Can a law be made to be destroy today’s accrued
constitutional P rights by artificially reverting to a situation which
existed seventeen years ago? No.
52. The legislation is pure and simple, self- deceptive, if we
may use such an expression with reference to a legislature-made
law. The legislature is undoubtedly competent to legislate with
retrospective effect to take away or impair any vested right
acquired under existing laws but since the laws are made under a
written Constitution, and have to conform to the do’s and don’ts of
the Constitution neither prospective nor retrospective laws can be
made so as to contravene Fundamental Rights. The law must
satisfy the requirements of the Constitution today taking onto
account the accrued or acquired rights of the parties today. The
law cannot say, twenty years ago the parties had no rights,
therefore, the requirements of the Constitution will be satisfied if
the law is dated back by twenty years. We are concerned with
today’s rights and not yesterday’s. A legislature cannot legislate
27
today with reference to a situation that obtained twenty years ago
and ignore the march of events and the constitutional rights
accrued in the course of the twenty years. That would be most
arbitrary, unreasonable and a negation of history. It was pointed
out by a Constitution Bench of this Court in BS. Yadav and others
etc. v. State of Haryana and others etc.(1) Chandrachud CJ.,
speaking for the Court, “Since the Governor exercises the
legislative power under the proviso to Art. 309 of the Constitution,
it is open to him to give retrospective operation to the rules made
under that provision. But the date from which the rules are made
to operate, must be shown to bear either from the face of the rules
or by extrinsic evidence, reasonable nexus with the provisions
contained in the rules, especially when the retrospective effect
extends over a long period as in this case”. Today’s equals cannot
be made unequal by saying that they were unequal twenty years
ago and we will restore that position by making a law today and
making it retrospective. Constitutional rights, constitutional
obligations and constitutional consequences cannot be tempered
with that way law which if made today would be plainly invalid as
offending constitutional provisions in the context of the existing
situation 3 cannot become valid by being made retrospective. Past
virtue (constitutional) cannot be made to wipe out present vice
(constitutional) by making retrospective laws. We are, therefore,
firmly of the view that the Gujarat Panchayats third Amendment)
Act, 1978 is unconstitutional, as it offends Arts. 311 and 14 and is
arbitrary and unreasonable. We have considered the question
whether any provision of the Gujarat Panchayats (Third
Amendment) Act, 1978 might be salvaged. We are afraid that the
provisions are so interwined with one another that it is well-nigh
impossible to consider any life saving surgery. The whole of the
Third Amendment Act must go. In the result the Writ Petition Nos
4266-70 are allowed with costs quantified at Rs. 15,000. The
directions given by the High Court, which we have confirmed,
should be complied with before June 30, 1983. In the meanwhile,
the employees of the Panchayats covered by the appeal and the
Writ Petitions will receive a sum of Rs. 200 per month over and
above the emoluments they were receiving before February 1,
1978. This order will be effective from February 1, 1983 The
interim order made on February 20, 1978 will be effective upto
January 31, 1983. The amounts paid are to be adjusted later.”
26. A Division Bench of the High Court for the State of Telangana, when the
same issue fell for consideration in W.P.Nos.4636 of 2018 and batch, at
paragraph Nos.17, 35, 43, 45, 46 to 49, held as follows:
28
“17. Keeping in view the aforesaid judgment, a right which has
accrued in favour of the petitioners cannot be wiped out by amending
the statute especially when the applicability of the statute is not with
retrospective effect. In the present case, the amending notification uses
the phraseology “shall be substituted” which clearly indicates that the
amendment is prospective and therefore, in the considered opinion of
this Court, the question of making the Rules applicable with
retrospective effect does not arise. The amendment in the Rules shall
be applicable to all those persons who are now joining the Telangana
Civil Police after the amendment only.
35. In the light of the aforesaid Judgment, the benefits acquired
under the existing rules cannot be taken away by an amendment with
retrospective effect.
43. The dispute involved in the present case is altogether
different and the amendment to the recruitment rules has to be
prospective in the absence of any such specific provision and the right
accrued in favour of the employees who have come on transfer prior to
amendment cannot be wiped out.
45. In the present case, the State Government has not been able
to point out the public interest involved in the matter, on the contrary the
benefit of seniority was granted to the persons who come on transfer
from branch to another branch and are now being deprived of their
accrued right of their past seniority and their accrued right for
consideration of promotion and therefore, the Judgment relied upon by
the learned counsel is distinguishable on facts.
46. Learned counsel for the respondents 18 to 43 has placed
reliance upon the Judgment delivered in the case of K.Jagannadha Rao
(supra). In the aforesaid case, the Division Bench has held that the
benefit of past service rule is a matter of policy for the Government,
however, past service must be of an equivalent post. In the present
case, the past service is an equivalent post and the right accrued
already in favour of the employees cannot be wiped out by making the
Rules applicable to the retrospective effect.
47. Learned counsel for the respondents 18 to 43 has also
placed reliance upon the Judgment delivered in the case of K.Rajaiah
(supra). This Court has carefully gone through the aforesaid Judgment.
It was a case relating to direct recruitment and recruitment by transfer
for the 65 purpose of Sub Inspector of Police. There was no such issue
of retrospective applicability of the Recruitment Rules involved in the
aforesaid case and therefore, the Judgment relied upon does not help
the respondent respondents 18 to 43.
48. Lastly, he has also placed reliance upon the Judgment
delivered in the case of Palure Bhaskar Rao (supra). In the aforesaid
case also, the issue of retrospective applicable of the Rules was not in
question and therefore, the Judgment is distinguishable on facts.
49. In the considered opinion of this Court, as the Recruitment
Rules provided for transfer only to the extent of 10% posts, the
petitioners at the relevant point of time opted for transfer to Civil Police
and they would have certainly received promotions by now in the parent
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organisation. The Amendment in the Recruitment Rules, i.e.,
G.O.Ms.No.19, dated 06.08.2018 has been introduced and for the first
time, a weightage formula has been introduced by the State
Government under the Recruitment Rules governing the field, meaning
thereby, wiping the past seniority and therefore, once a right which has
accrued in favour of the petitioners, cannot be wiped out by the
impugned Amendment and the Amendment is certainly not at all
applicable with retrospective effect. The question of depriving the
petitioners by making the Amendment applicable with retrospective
effect does not arise. Therefore, this Court is of the considered opinion
that all those constables who have come prior to 06.02.2018 are
certainly entitled for grant of seniority and all those constables who
have come on transfer after 06.02.2018 shall be governed by the
Amended Recruitment Rules.”
27. Coming to the facts of the present case, the amendment which was
referred in the judgment vide G.O.Ms.No.95 Home (Legal.II) Department,
dated 31.05.2017 is pari material with G.O.Ms.No.1. The Hon’ble Division
Bench referred various judgments including the judgment of High Court of
Telangana referred to supra, and came to the conclusion that, by the date of
willingness there was no amendment and so the amendment has no effect on
the services of the Petitioners therein.
28. To summarise:
(i) Petitioners initially entered into APSP Battalion from 1983 to
1987.
(ii) They were appointed in PC (AR) during 2001 to 2005 by transfer
in the light of the circumstances mentioned in G.O.Ms.No.299 coupled with
clarification Memo issued by the Director General of Police in 2001 to the
effect that their seniority in AR would continue from the date of their initial
appointment in APSP.
30
(iii) The Hon’ble Division Bench of Composite High Court of A.P., in
W.P.No.21610 of 2007, dated 08.10.2013 though upheld the order of APAT
regarding application of Rule 15(e) to the persons like the Petitioners, at the
operative portion of the Order, directed the Authorities not to revert the
persons based on Rule 15(e), but directed to frame a formula balancing the
interests of the persons appointed through transfer as well as direct recruitees
in AR. Hence, the application of Rule 15(c) or Rule 15(e) looses all its
importance. In fact, Rule 15(e) is not in existence.
(iv) G.O.Ms.No.1 itself is clear that it is with effect from 01.01.2008.
The reason is direct recruitees initiated the litigation regarding seniority from
2007.
(v) When the Petitioners entered AR even earlier to the effective date
i.e., 01.01.2008, the application of G.O.Ms.No.1 to them is not sustainable
under law.
(vi) The same analogy has been taken by the Hon’ble Division Bench
of this Court in W.P.No.21610 of 2007, dated 08.10.2013, and the Hon’ble
Division Bench of High Court of Telangana in W.P.Nos.4636 of 2018 & Batch,
dated 25.01.2022 and G.O.Ms.No.19, dated 06.02.2018 and G.O.Ms.No.95,
dated 31.05.2017 have been issued, which are pari materia to G.O.Ms.No.1.
(vii) Petitioners are entitled for promotions if they are eligible
otherwise without reference to G.O.Ms.No.1. In case of their retirement, they
are entitled for monetary benefit for fixation of pay for pension.
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(viii) Consequently, while doing this exercise, Respondent Authorities
need not revert the promotions if any given to others, but they need be
adjusted in further vacancies.
(ix) Though there is a clear finding upholding the opinion of the
Tribunal that Rule 15(e) has to be applied for the persons who are converted
as AR from APSP Battalion, the Hon’ble Division Bench did not choose to
direct the Respondent Authorities to apply Rule 15(e) and prepare the
seniority list. The direction would show that the persons shall not be reverted
till the finalization of the seniority list and to fix a formula.
29. The Government in its wisdom issued G.O.Ms.No.1 on 07.01.2016 by
fixing the date of its effect as 01.01.2008 i.e., with retrospective operation of
the said G.O. Such being the case, the argument of the learned Government
Pleader that, in pursuance of the Common Order of the Composite High Court
of A.P., Hyderabad vide in W.P.Nos.21610 of 2007 and Batch, dated
08.10.2013, Government have issued G.O.Ms.No.1, dated 07.01.2016 and it
is applicable to the Petitioners, cannot be accepted.
30. After paying utmost attention and scrutiny of the material on record, this
Court is of the humble view that G.O.Ms.No.1 dated 07.01.2016,
G.O.Ms.No.95, dated 31.05.2017, G.O.Ms.No.19, dated 06.02.2018 have
brought the very same amendment regarding the formula to be followed for
fixation of seniority of persons who are transferred from one wing to another
like APSP (PC) to AR (PC) and AR (PC) to PC (Civil) by giving weightage of
one year for every two years of their service in the parent wing. Undisputedly,
32
these amendments are introduced in pursuance of the Common Order of the
Composite High Court of A.P., vide W.P.Nos.21610 of 2007, dated
08.10.2013.
31. In the light of the aforementioned premises, Petitioners herein cannot
be deprived of their seniority since the amendment vide G.O.Ms.No.1 is not
applicable to their case even going by the very language used in the order i..e,
with effect from 01.01.2008.
32. In the result, the Writ Petitions are allowed. By virtue of interim order of
this Court, any proceedings effected vide G.O.Ms.No.107, Home (Ser.II)
Department, dated 03.09.2019, is subject to the result of the present writ
petitions. That being so, in case, Petitioners already retired from service, they
are entitled to promotion and the consequential benefits for fixation of pension
as in the promotional post. The persons, who are already promoted, are
ordered to be adjusted subject to the vacancy. There shall be no order as to
costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand
closed.
________________________________________
Dr.JUSTICE VENKATA JYOTHIRMAI PRATAPA
Date:17.04.2025
Dinesh
33
HON’BLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA
WRIT PETITION Nos. 19453, 19482, 19505 & 19507/2019
Dt.17.04.2025
Dinesh