IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.17579 of 2009 BETWEEN L. Satyanarayana and four others. …PETITIONERS AND B. Poshetty and 26 others. …RESPONDENTS Counsel for the Petitioner: MR. J. R. MANOHAR RAO Counsel for the Respondents: GP FOR SERVICES I MR. S. GANESH RAO ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) The petitioners as well as the respondents 1 to 24 were all working as Armed Reserve Constables in Adilabad District. This writ petition is filed by the respondents 4 to 8 in O.A.No.6109 of 2003 before the Andhra Pradesh Administrative Tribunal against the final order dated 25.06.2009. The said OA was filed by respondents 1 to 24 herein against the respondents 25, 26 and 27, who were arrayed as respondents 1 to 3 and the petitioners herein as respondents 4 to 8. The parties, for convenience, are referred to as in the OA. 2. The order No.111 of Andhra Pradesh Police Manual Part I deals with promotion of Armed Reserve Constables to the post of Head Constables. G.O.Ms.No.175 Home (Police-D) Department dated 30.03.2009 was issued amending the said order No.111. The relevant portion of which is extracted as hereunder: “ ANNEXURE (Annexure to G.O.Ms.No.175 Home (Police-D) Department dated 30.03.1996) AMENDMENT In the A.P. Police Manual, for order 111, the following shall be substituted, namely:- 111. Promotion of A R Constable to that HCS: … (2) (i) The Superintendent of Police/Commissioner of Police Deputy Commissioner of Police, Head quarters/Commandant, SAR/CPL will work out the number of vacancies of Head Constables existing as on the 1st January and likely to arise in the year and finalise the number of Police Constables to be included in the ‘C’ list as prescribed in Order No.100 (i)(b). The required number of Police Constables to be promoted as HCs will be selected in the order of service seniority and sent to undergo one month training at Dist/Unit Headquarters as per the training programme designed for this purpose. (ii) An examination will be conducted at the end of the course both in indoor and outdoor subjects they are taught. The Head Constables trainees scoring not less than 40% of the total marks with not less than 35% in each subject will be deemed to have passed the course in one attempt and will be included in the promotional panel called (C-list) as per service seniority. They can be promoted and posted as Head Constables as on regular basis only after they pass the subjects taught in the training and get into the promotion list. The constables trainees who fail in the examination have to appear for the supplementary examination in failed subjects at District Headquarters. They will be given the additional chances to completely pass the failed subjects. Those who pass in supplementary examination will be included in the panel of promotion as per seniority among those who pass such supplementary examination and will be placed below the last ‘C’ list.” 3. The main grievance of the applicants (respondents 1 to 24 herein), before the tribunal, was that they are senior Armed Reserve Constables and they are fully eligible and qualified to be considered for inclusion in the C-list for promotion as Head Constables. However, without sending their names for training and written examination for inclusion in C-list, the Superintendent of Police, Adilabad District had adopted a method of seeking willingness from police constables in each unit of Armed Reserve in Adilabad district. The respondents contended that they had no knowledge of requirement of forwarding the willingness. They also contended that the Superintendent of Police conducted a qualifying running test. It was contended that the SP did not follow the procedure prescribed under G.O.Ms.No.175 dated 30.03.1996 and to the exclusion of the seniors, juniors, which include the respondents 4 to 8 (writ petitioners herein) were sent for training and thereafter they appeared for the written test and based on that C-list was prepared by the SP. Further by order dated 28.09.2007 44 candidates were promoted as Head Constables and out of them Sl.Nos.19 to 49 were juniors to the applicants. The said applicants, therefore, had sent a representation to the Director General and Inspector General of Police. The Director General under his proceedings dated 04.04.2002 in Rc.No.1201/E3/01 found that the procedure adopted by the SP is not in accordance with the Rules and consequently, the C-list prepared by him being invalid, was cancelled and the SP was directed to call for objections from all the affected persons and send them to the Chief Office for preparation of fresh C-list. The aforesaid proceedings of the Director General were confirmed by the Government also vide proceedings of the Principal Secretary to the Government dated 08.04.2002 on the ground that earlier C-list prepared was not in accordance with the Rules. As the Director General had directed the SP to call for objections from all the affected persons, the applicants contend that once again the same C-list was submitted without following those directions. Questioning the promotions of the respondents 4 to 8 under proceedings dated 05.08.2003, the applicants, therefore, filed the present OA. 4. The Superintendent of Police, Adilabad, filed a counter mentioning that out of 24 applicants only 8 had given willingness and had undergone the training and appeared for the written test but none of them could qualify in the written test. The rest of the applicants did not appear for the test at all. It was also stated that as per the directions of the Director General, objections were called from all the affected persons vide memo dated 20.04.2002. 5. The tribunal noticed from the record that out of the 24 applicants, the applicants 6, 8, 9, 12, 14, 18, 19 and 21 alone appeared for the examination and the remaining did not appear. The said 8 applicants were admittedly sent for training and appeared for written examination but they failed. The counter filed by the tribunal shows the marks secured by them and their result as failed in the written test. The tribunal found that the procedure adopted by the SP viz. calling for willingness of the applicants for examination and sending them for training as bad and cannot be upheld and is contrary to the Rules issued under G.O.Ms.No.175 dated 30.03.1996 referred to above. The tribunal was also under the impression that the said Rules were violated inasmuch as the written test was held first and thereafter, the candidates were sent for training, which, in fact, should be the other way round. The tribunal, therefore, was of the view that all the applicants, who were seniors ought to have been sent for training as per their seniority and ought to have been considered for inclusion in the C-list and the contra procedure adopted by the SP being violative of the Police Standing Order 111 as amended under G.O.Ms.No.175 dated 30.03.1996 referred to above was not sustainable. The tribunal, therefore, allowed the OA and directed that all the applicants be sent for training in accordance with the aforesaid Rules and prepare C-list on the basis of the examination at the conclusion of the training. The tribunal also set aside the promotion of the respondents 4 to 8 on the ground that the seniors were wrongfully excluded from consideration and placing in C-list. Questioning the aforesaid order, the petitioners, whose promotion was set aside, have approached this Court. 6. While admitting this writ petition on 03.09.2009, We had suspended the impugned order of the tribunal to the extent of setting aside the promotion of the petitioners herein. It, however, appears from the counter affidavit now filed in this writ petition by the Superintendent of Police, Adilabad, that in pursuance of the impugned order of the tribunal, the petitioners were reverted to the rank of Police Constables by proceedings D.O.2338/09 dated 29.08.2009 i.e. earlier to the orders passed by us. 7. Out of the 24 applicants before the tribunal, We have been informed that 4 of the applicants are no more and as already noticed above, 8 of the applicants had undergone training and appeared for written test but had failed. Thus, the remaining 12 applicants, who are arrayed in this writ petition as respondents 6, 10 to 13, 15 to 18 and 20 to 22 have alone, therefore, contested this writ petition and have filed WVMP.No.4142 of 20090 seeking vacation of the interim order earlier passed by us. 8. We have heard Mr. J. R. Manohar Rao, learned counsel for the respondents 4 to 8/petitioners herein, learned Government Pleader for Services I appearing for the official respondents and Mr. S. Ganesh Rao, learned counsel appearing for the contesting applicants/respondents as above and with the consent of the learned counsel, We have heard the writ petition itself and the same is being disposed of by this order. 9. Before we go to the findings of the tribunal, it is to be noted that the statutory rules under G.O.Ms.No.175 dated 30.03.1996 extracted above categorically provide the procedure to be followed for preparation of C-list. Order 111 sub-rule 2(i) clearly provides that ‘The required number of police constables to be promoted as Head Constables will be selected in the order of service seniority and sent to undergo one month training at District/Unit Headquarters as per the training programme designed for this purpose’. Order 111 Rule 2(ii) provides that an examination will be conducted at the end of the course both in the indoor and outdoor subjects they are taught and such of the successful candidates will be arranged in the promotional panel called C-list as per service seniority. It is already on record that the then SP had not followed the said rules strictly and instead of following the service seniority of police constables he had conducted an unspecified running test of all candidates and had also called for willingness from the candidates and only such of those, who were qualified in the running test and had given willingness were considered for sending for training and later were selected on the basis of marks obtained in the written test. The Director General and Inspector General of Police had already disapproved the said procedure and directed cancellation of the C-list prepared by following the above said irregular procedure by the SP. The said decision was approved by the Government also and later objections were called for from the affected parties and ultimately, a list of 10 candidates, who were excluded earlier were included in the select list and placed below the selected candidates. However, the entire procedure adopted in preparation of C-list was challenged in the present OA. The tribunal, no doubt, held that the procedure adopted by the SP was contrary to the Rules. The tribunal was also under the impression that the SP had conducted examination in advance and thereafter, had sent the candidates for prescribed training, which has been demonstrated before us that the said impression of the tribunal is incorrect and though the SP had conducted an unspecified running test and had secured unspecified willingness letters, the rest of the procedure viz. sending the candidates for training and the written test thereafter was in accordance with the rules. To the extent of finding of the tribunal that the applicants before it i.e. contesting respondents herein being seniors and were excluded from consideration appears justified. Learned counsel for the contesting respondents also had placed reliance upon the sub-rule 2 of Order 111 referred to above and has rightly contended that the service seniority alone is the criteria required to be followed in sending the constables for training. 10. Mr. J. R. Manohar Rao, learned counsel for the petitioners has raised a contention which equally merits due consideration. He contended that all the selected candidates empanelled in the C-list have not been impleaded in the OA and only the petitioners herein are made party respondents and the promotion of petitioners alone is set aside by the tribunal, which is clearly unjustified. 11. We have noticed from the averments in the OA filed by the applicants that even according to them as many as 24 candidates whose names are mentioned in Para 6-C of the OA are juniors to the applicants. However, they have only impleaded respondents 4 to 8 in the OA i.e. petitioners herein to the exclusion of all other juniors. It is clear and apparent that even according to the applicants though several of their juniors viz. in all 49 candidates were promoted, they have chosen to make only 4 petitioners herein as respondents 4 to 8 in the OA and their promotion alone is set aside by the tribunal under the impugned order. We are of the view that the applicants herein cannot be selective in the matter of challenging the promotion of their juniors and the present case is clearly covered by the principle of non-joinder of necessary parties. 12. It is one thing to say that the cases of applicants had to be considered for inclusion in the C-list based upon their service seniority and it is totally another thing to contend that because the service seniority is not followed inclusion of the respondents 4 to 8 in the C-list and further promotion as Head Constables is liable to be cancelled. We are, therefore, of the view that though the tribunal was justified in directing that the applicants were eligible to be sent for training and further written test in accordance with the service seniority for empanelling in the C-list, the tribunal, however, was not justified in setting aside the promotions of the petitioners herein, primarily on the ground that all other juniors of the applicants, who were placed in the C-list and who were subsequently promoted were not impleaded in the OA. 13. As has been found by us, the procedure prescribed under G.O.Ms.No.175 dated 30.03.1996 had to be followed for preparation of C-list and the same having not been adhered to by the then SP, the tribunal was justified in allowing the OA and directing that the applicants be sent for training and for further written examination in terms of G.O.Ms.No.175 dated 30.03.1996 by following their service seniority. To the extent of the aforesaid relief granted by the tribunal in favour of the applicants, therefore, does not deserve any interference. The impugned order of the tribunal to the extent of setting aside the promotion of the respondents 4 to 8, however, is not sustainable and is accordingly is required to be set aside and is hereby set aside. The writ petition, therefore, is allowed in part with the following directions: 1. The contesting respondents 6, 10 to 13, 15 to 18 and 20 to 22 herein shall be sent for training and further written test in terms of G.O.Ms.No.175 dated 30.03.1996 by following the order 111 and on being qualified be included in the C-list, thereafter, keeping in view the availability of vacancies, to be promoted to the post of Head Constables. 2. Inclusion of the petitioners in the C-list and their further promotion to the category of Head Constables shall, however, remain undisturbed and the petitioners shall continue in the said promotional post. 3. The official respondents shall complete the aforesaid exercise of considering the contesting respondents as above for inclusion in the C-list and for promotion within a period of three (3) months from the date of receipt of a copy of this order. There shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J February 25, 2010 DSK